State of New South Wales v Dickson (Final)

1. [1]

   HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 30 September 2019 against the defendant, George Dickson (“the defendant”), seeking interim and final orders pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”).

2. [2]

   On 7 November 2019, pursuant to the Act, I made an interim supervision order (“ISO”) in respect of the defendant: State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1534 (“the preliminary judgment”). On 14 February 2020, the matter returned to me for a hearing as to the final orders that had been sought in the application, namely, an extended supervision order (“ESO”) for a period of two years from the date of the order, or when the defendant’s current custody or supervision expires, whichever is the later. I note that the sentence for the index offences expired on 7 November 2019.

3. [3]

   An order is also sought that would permit access to the court’s file by a non-party only with the leave of a judge of this 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.

The background to the plaintiff’s application

1. [4]

   In the preliminary judgment, I reviewed the material concerning the defendant’s background, the index offences and his conduct following his release on parole in respect of the index offences. A summary of that material is as follows.

2. [5]

   The defendant is an Indigenous man, presently aged 43, who was born in South Australia, where he has spent most of his life. He has a criminal history in Queensland from his early adult years, for break and enter, stealing, possessing drug utensils and drug possession. There is also a conviction for possessing a weapon without a licence, but for reasons explained in the preliminary judgment, it is not possible to determine whether the weapon was a firearm. The most serious sentence he received was a 12 month suspended prison sentence. The last criminal conviction, in that phase of his life, was when he was aged 22, in about 1999.

3. [6]

   There was a 17 year gap before the defendant next offended, which was in South Australia in 2015. In May 2015, he came before the Adelaide Magistrates Court for minor behavioural offences on public transport. On 3 November 2016, he was convicted and fined $150 for possessing cannabis and equipment for using or preparing cannabis, the offences having been committed on 9 September 2015. At the hearing, the defendant represented himself and submitted that he was entitled to use cannabis.

4. [7]

   The plaintiff contends that, thereafter, the defendant mounted a campaign involving sending letters, emails and the like to individuals and agencies of authority, and putting up posters in public places, in which threats of violence were made, in furtherance of the political cause of legalising the use of illegal drugs (“the offending material”). The ostensible context of the threats was that the state had mounted a “war” against its citizens who used illegal drugs and, as in any war, lawful force was justifiable in self-defence. One of the early manifestations of this campaign was in the form of a letter purporting to be from the defendant to the South Australian Attorney General’s Department, in which he refused to pay the fine imposed for the drug offences committed on 9 September 2015. This letter was received around 15 December 2016. The plaintiff alluded to harm possibly befalling any officer who attempted to arrest him for the non-payment:

5. [8]

   Other targets included, by email sent on 16 August 2017, the then NSW Minister for Police and the Minister for Emergency Services, the Honourable Troy Grant MP:

6. [9]

   On 11 December 2017, the defendant allegedly sent a letter to the South Australian police, stating in part:

7. [10]

   In January and February 2018, the defendant allegedly put up posters on council poles, which included the following text:

8. [11]

   In January 2018, CCTV in South Australia captured a male adult resembling the defendant walking past a police vehicle, which was later discovered to have a poster in similar terms placed on its windscreen, and the added sentence: “If they are harmed in their attacks that is the consequence of their violence and there will be one less of them to harm your fellow Australians”.

9. [12]

   In March 2018, the defendant sent emails to South Australian authorities expressing support for Domenic Perre, who was arrested the month before and charged with murder and attempted murder, arising from the bombing of the Adelaide office of the National Crime Authority in 1994. An email included this passage:

10. [13]

    In the hearing of this matter, counsel for the defendant informed the Court that his client neither concedes nor disputes that he authored the letters and emails that purported to come from him, and the text of the posters that he is alleged to have placed in various places. Having regard to the defendant’s unchallenged reported admissions to psychologist Chelsey Dewson (see [48] below), the email accounts from which emails were sent, the information on the face of the emails and letters as to who authored them, and the consistency of content between the posters and material purportedly sent by the defendant, I find that he was the author of the offending material.

11. [14]

    In the preliminary judgment, I summarised the evidence comprising the index offences as follows:

12. [15]

    The defendant declined to give permission for a psychological assessment while on remand, so one was not carried out. On 30 August 2018, the defendant was examined by two psychiatrists, who concluded that the defendant’s dishevelled appearance and reported behaviour was consistent with him having a mental illness, which required treatment for the protection of others. The two psychiatrists requested that an order be made in respect of the defendant pursuant to s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant was transferred to Long Bay Hospital on 2 November 2018. On arrival, he was noted to be calm, polite and exhibiting no thought disorder, although his appearance was described as “dishevelled and unkempt”. Nevertheless he was administered an antipsychotic drug, being Clopixol (100mg), and Benzotropine (2mg), the latter presumably to counter side effects of the antipsychotic medication.

13. [16]

    The defendant was discharged back to the Metropolitan Remand and Reception Centre (“MRRC”) on 19 November 2018, the provisional diagnosis of schizophrenia not having been confirmed. The Psychiatry Registrar wrote:

14. [17]

    The defendant appeared unrepresented at his Local Court hearing on 28 September 2018, pleaded guilty to the two “damage property” charges and defended the other two charges. It appears from the defendant’s cross-examination of police witnesses and the judgment of the presiding magistrate that the defendant contended that he was entitled to use cannabis on religious grounds; that his arrest was unlawful; that the resist police charge was “very minor” (with which the magistrate agreed); and that he was not subject to the laws of Australia. He was sentenced to concurrent sentences of 2 years imprisonment, back-dated to 8 May 2018, with a non-parole period (“NPP”) of 18 months, expiring on 7 November 2019.

15. [18]

    The defendant appealed the sentence’s severity to the District Court. It is not apparent from the material whether he appeared unrepresented in that hearing, which was at Lismore on 31 January 2019. His sentence was varied to an aggregate sentence of 1 year and 3 months commencing on 8 May 2018, with a NPP of 9 months concluding on 7 February 2019, that is, a week after the hearing of his appeal.

16. [19]

    Following his release on parole on that date, the defendant declined to consent to Corrective Services NSW (“CSNSW”) contacting “significant others” in his life to verify information about him, for the purpose of preparing an assessment and developing a management plan. He explained that he did not want his family to know about the criminal proceedings. He rejected the view that he needed mental health or drug (cannabis) use intervention and refused to engage in intervention strategies as directed, which led to a breach of parole report being submitted to the State Parole Authority (“SPA”). On 17 April 2019, the defendant was warned and an updated report was requested from CSNSW, thus affording him a further opportunity to engage and comply with his parole, which he did not accept. On 6 May 2019, he telephoned his CSNSW officer and advised that he had moved to the Lismore area, but would not disclose his exact whereabouts. On 10 May 2019, his parole was revoked and a warrant was issued for his arrest.

17. [20]

    A report by South Australian police dated 13 July 2019 records that they approached the premises of an unnamed woman in order to ascertain the defendant’s whereabouts. The defendant came to the front door and was informed that New South Wales police were not seeking extradition at that time. The following month, the defendant was extradited back to NSW and returned to custody, where he remained until his date of release on 24 November 2019, at which time he was then subject to the ISO made by me on 7 November 2019.

The defendant’s behaviour under the ISO

1. [21]

   The defendant’s behaviour since his release has been uneventful. He maintains that, pursuant to the conditions of his ISO, he has not used cannabis, which is confirmed by periodic drug testing.

2. [22]

   The defendant remains committed to returning home to South Australia as soon as he is legally able to do so. His father, who resided in South Australia, passed away on the evening of Monday 25 November 2019. A condition of his ISO, made pursuant to s 29(1A)(d) of the Act, was that he could not leave the state without the approval of the NSW Commissioner of Corrective Services (“the Commissioner”). Accordingly, he requested the Commissioner’s permission to attend his father’s funeral in South Australia. Permission was denied. His mother and partner continue to reside in South Australia.

3. [23]

   The defendant has refused to use any financial entitlement to unemployment funds to pay for accommodation, as a form of protest at not being able to return to his home state.

The present application

1. [24]

   As noted earlier, the plaintiff’s summons seeks an ESO for a period of two years. Section 20 of the Act sets out the four prerequisite conditions to be satisfied, if the Court is then to exercise its discretion to make such an order:

2. [25]

   The first pre-condition is satisfied, as the defendant was serving a sentence of imprisonment for four NSW indictable offences at the time of the filing of the summons by the plaintiff. The defendant, through his counsel, accepts that the second precondition is also satisfied, namely, that the application was made in accordance with the requirements of Pt 2 of the Act, and I agree.

3. [26]

   The third and fourth preconditions, that is, s 20(c) and (d) of the Act, are contested by the defendant. In relation to the third precondition, the plaintiff puts its case on the basis of s 20(c)(iii) of the Act, that is, that the defendant is “a convicted NSW terrorism activity offender”. That term is defined in s 10 of the Act as follows:

4. [27]

   The plaintiff relies on s 10(1) of the Act. There are two parts, the first being satisfied by the defendant continuing to be supervised under the Act after serving a sentence of imprisonment for a NSW indictable offence. As to the second part, the plaintiff relies upon s 10(1)(c)(i), namely, that he “has previously made [a] statement … advocating support for any terrorist act or violent extremism”. The term “terrorist act” is defined in s 4 of the Act to have the same meaning as in Pt 5.3 of the Commonwealth Criminal Code (“the Code”). That definition, which is at s 100.1 of the Code, is in these terms:

5. [28]

   The plaintiff submitted that the offending material satisfies s 10(1)(c)(i) of the Act, in two ways; it is a “terrorist act” in that it constitutes a “threat of action”, that is, a threat “to cause serious harm that is physical harm”, and it constitutes “violent extremism”, a term that is undefined in the legislation. The plaintiff relies on the definition of “extremism” in the Oxford Online Dictionary, which is: “[t]he holding of extreme political or religious views; fanaticism”. However, I do not understand the plaintiff to be submitting that the legalisation of drugs is an “extreme political … view”. Rather, I understand the plaintiff to be submitting that the defendant allegedly sought to achieve that political outcome through violent means.

6. [29]

   The defendant submitted that, since the proceedings are civil in nature and the proceedings are to be conducted in accordance with the rules of evidence (see s 50(1) of the Act), and s 140 of the Evidence Act 1995 (NSW) applies. Section 140 provides:

7. [30]

   The defendant submitted that the section “gives effect” to the Briginshaw test: Briginshaw v Briginshaw (1983) 60 CLR 336; [1938] HCA 34 per Dixon J at 361-2. Given the gravity of the subject matter of these proceedings which have the potential to, in the defendant’s words, “label [the defendant] a terrorist for the rest of his life” and restrict his liberty, the defendant submitted that s 140(2)(c) is particularly relevant to the Court’s determination of whether it is satisfied that the defendant is a “NSW terrorism activity offender” (s 20(c)(iii) of the Act).

8. [31]

   The plaintiff conceded that s 140 applies to the proceedings, but responded that the objects of the Act in s 3 and the paramount consideration for the Court, as stated in s 25(2) of the Act, have the effect of excluding the Briginshaw test. The relevant sections of the Act are as follows:

9. [32]

   Implicit in the plaintiff’s submission is the proposition that s 140 does not import the Briginshaw test, which in my view is contrary to authority: see Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [47], per Ipp JA, Tobias and Basten JJA agreeing, applying the test elaborated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 per Mason CJ, Brennan, Deane and Gaudron JJ at 171; see also R v Petroulias (No 8) (2007) 175 A Crim R 417; [2007] NSWSC 82 per Johnson J at [17].

10. [33]

    The plaintiff has not elaborated on how the objectives of the Act and the paramount consideration, as set out in ss 3 and 25 of the Act, are inconsistent with the Briginshaw test or s 140 of the Evidence Act, which mandates the Court taking into account “the gravity of the matters alleged” in civil proceedings. To my mind, there is no apparent inconsistency.

11. [34]

    The plaintiff also submitted that s 21 of the Act is relevant to this question, but it is apparent from its terms that it applies exclusively to the issue to be determined at s 20(d), that is, the ultimate question for determination in respect of whether a court should make an ESO, in the same way as does its counterpart provision in relation to an application for a continuing detention order (s 35). It does not facilitate a loosening of the civil standard of proof to be applied to the preliminary and intermediate steps of the process leading to that final determination, including s 20(c)(iii), nor is there any contradiction involved in that approach. If the earlier steps have been established according to the conventional standard of proof in the manner required by s 140 of the Evidence Act, the court then moves to the quite different standard of “a high degree of probability” for the purposes of s 20(d), which displaces the ordinary civil standard of proof: see State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29](3). Section 20(c)(iii) assists in understanding how this different standard is to be applied.

12. [35]

    In any event, I am satisfied that, pursuant to s 10(1)(c)(i) of the Act and having regard to the nature of the offending material, the defendant has made statements that advocate support for terrorist acts. Accordingly, the plaintiff has satisfied the first three preconditions of s 20 of the Act, leaving s 20(d) for consideration.

13. [36]

    The term “a serious terrorism offence” is defined in s 4 of the Act to mean “an offence against Pt 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”. I note that two offences coming within this description are “engaging in a terrorist act” and “doing acts in preparation for, or planning, a terrorist act”, which are contrary to ss 101.1 and 101.6 of the Code respectively and carry maximum penalties of life imprisonment. I now consider the evidence tendered by the plaintiff in support of its submission that s 20(d) is satisfied.

Forensic reports

1. [37]

   Pursuant to orders made by me on 7 November 2019, reports were prepared for the final hearing by a registered psychologist and a qualified psychiatrist.

2. [38]

   In the preliminary judgment, I explained my reasoning for concluding that the material, if proved, would justify the making of an ESO, as follows:

3. [39]

   The defendant chose to co-operate with the psychologist and psychiatrist who were appointed to assess him.

The psychologist’s report

1. [40]

   Chelsey Dewson, psychologist, prepared a report dated 10 January 2020. Ms Dewson interviewed the defendant on 11 December 2019, for a period of 2 hours and 40 minutes. In her report, she noted that the defendant told her he is exploring the possibility of obtaining the disability support pension, due to him having Scheuermann’s disease, which I understand to be a developmental disability of the spine. His employment history comprises periods of unskilled or semi-skilled physical labour, in which case it may well be that further employment of that type is not realistic. That being so, Ms Dewson notes that: “it will be important for him to find ways to occupy his time in meaningful ways that support an offence free life in the future”.

2. [41]

   The defendant claimed to Ms Dewson that he remains in a relationship with his partner of 20 years, although she is referred to in documentation as his ex-partner. I note that his partner was present in court during the hearing and accept that their relationship is continuing. He claimed she does not have a criminal history, does not use illicit substances and does not share his views on drug prohibition. He has regular contact with his mother, who continues to reside in South Australia. His only other family contact is to a limited extent with his half-sister.

3. [42]

   The defendant advised Ms Dewson that the only illegal substance he uses is cannabis, although he last used it four months prior. I note that he was in custody for three of those four months, although I do not doubt that cannabis can be accessed in the prison system. He expressed interest in using cannabis in the future, claiming he had the mental discipline to control his use of it at will, and that he had no intention of engaging in any intervention for addictive behaviours. Ms Dewson recommended that the defendant “challenge his attitudes towards substance use and maintain sobriety”.

4. [43]

   Ms Dewson found that the defendant:

5. [44]

   A perplexing aspect of the defendant’s history in the preliminary proceedings was the apparent absence of an explanation as to why it was that in 2016, when aged about 40, not having offended in 17 years and with no prior threats or acts of violence against authority figures, he made threats of violence and committed the index offences. As noted earlier, a concern by Justice Health psychiatrists in 2018 that he may have a mental illness was not substantiated.

6. [45]

   Similarly, Ms Dewson’s report eliminates an evidentiary basis for concluding that the defendant has a mental illness:

7. [46]

   However, Ms Dewson’s report relates a narrative by the defendant that offers, at least in part, an explanation for the hiatus. He informed her that for 20 years he was a member of the Australian HEMP Party, which is dedicated to the legalisation of cannabis; HEMP is an acronym for “help end marijuana prohibition”. There was no discernible progress on legalisation, so he decided to become more active on the issue by emailing “every magistrate, police or political” group. This coincided with him being unable to continue labouring work, due to his spinal condition, thus affording him time to focus on his campaign. The HEMP Party told him to stop this campaign, so in 2017 he withdrew his membership and continued to promote the cause of marijuana legalisation as he saw fit.

8. [47]

   Ms Dewson questioned the defendant about his present beliefs, objectives and the means he intended to deploy in pursuit of those objectives. He adhered to the goal of the legalisation of the use of narcotics and other illegal drugs and stated that violence is used against people who use drugs, for example in the course of “drug raids” by police. He felt targeted as a drug user and feared that violence could be used against him, although he acknowledged that it had not, thus far. His future efforts would include handing out flyers and speaking to people. He regarded the use of violence as not useful, but rather counter-productive to his cause, that violence by both police and drug users is unjustified and denied any intent to use violence in his continuing political activism.

9. [48]

   The defendant sought to minimise his damage of the police cars, claiming that “I don’t think I did anything more than break a window, it’s pretty common (behaviour)” and explaining that his objective was to get himself before a court so that he could advocate his views on legalisation. Ms Dewson related:

10. [49]

    Ms Dewson said that the defendant failed to recognise that his letters contained violent statements and denied that on 4 July 2018, whilst on remand at the John Morony Correctional Centre and participating in a group “communication” session, he had threatened to “blow up Parliament House”. The defendant said that when the group facilitator attempted to paraphrase what he had just said, she claimed as much, but he declined to correct her; he said to Ms Dewson: “I didn’t actually threaten anything”.

11. [50]

    The defendant complained that the ISO is keeping him from his family and placing stress on his relationships, and found his current accommodation of shelters and hotels, which is arranged by Community Corrections, to be a “traumatic” experience. Ms Dewson reported that the defendant’s primary goal is “to return to South Australia as soon as possible, where he will seek support from his partner and mother”.

12. [51]

    Ms Dewson administered three tests in order to gauge the defendant’s likelihood or otherwise of committing further offences, in particular, general offending, violent offending and extreme violent offending. These were, firstly, the Level of Services/Case Management Inventory (“LS/CMI”), which she described as a structured risk assessment guide which includes treatment and service delivery considerations as well as risk factors, in its identification of re-offending risk assessment. This yielded a result of the defendant having a high risk of general re-offending, which I note is a more serious result than when the same test was applied in March 2019 and reported in the report of psychologist Rachel Terry for the purposes of the preliminary hearing in this matter. In order to assess his actuarial risk of violence, Ms Dewson applied the Violence Risk Scale (“VRS”), which has regard to both static and dynamic risk factors. The defendant was found to have a medium risk of violent re-offending.

13. [52]

    The third and final test was the Violent Extremism Risk Assessment (“VERA-2R”), which is a structured professional judgement protocol, using relevant indicators for violent extremism. Ms Dewson considered the defendant’s history and presentation in her consultation against six groups of indicators, being: (1) beliefs, attitudes and ideology; (2) social, context and intention; (3) history, action and capacity; (4) commitment and motivation; (5) protective indicators; and (6) additional factors. The latter category included his absence of juvenile offending, his reporting of a stable and “unproblematic” childhood and the absence of “any current or historical symptomology associated with affective disorders or incidents related to self-harm”. Ms Dewson assessed the defendant, in context, as being at a moderate to high risk of unlawfully using violence against person or property to attempt to intimidate, coerce or influence government agencies.

14. [53]

    A likely future scenario involving violence would be similar to the index offence, being engaging in criminal behaviour such as property damage or drug use, and inflicting violence on the arresting police officers, although the potential for more serious harm occasioned to the arresting officers, either deliberately or accidentally, could not be discounted. Ms Dewson also thought it was possible that the material the defendant disseminates in the future could contain “veiled or overt threats of violence.”

15. [54]

    In conclusion, Ms Dewson drew a possible connection between the defendant’s prolific use of cannabis and his shift to means to making threats of violence:

16. [55]

    Ms Dewson considered that an ESO for a period of two years was appropriate, with the defendant utilising it as a period preparatory to him returning to South Australia, where he would have the benefit of family support, with the conditions being relaxed in response to positive behaviour. Psychological services should include treatment of his substance abuse and offence-specific intervention.

The psychiatrist’s report

1. [56]

   A report was obtained from Dr Anthony Samuels, psychiatrist, which is dated 6 January 2020. He met with the defendant on 17 December 2019. The first twenty pages of Dr Samuels’ report comprise an itemisation and partial summary of the documentary material which was provided to him by the plaintiff, which is essentially the material that has been tendered to the Court on the application together with the preliminary judgment. Dr Samuels then related the relevant parts of the history he obtained from the defendant in the interview, which was followed by his conclusions. I consider the following aspects of his report to be particularly pertinent to my determination pursuant to s 20(d) of the Act.

2. [57]

   Dr Samuels considered the defendant’s likely motive in committing the index offences:

3. [58]

   Dr Samuels also considered whether the defendant has, or had, a mental illness, stating:

4. [59]

   Dr Samuels related the defendant’s account of his motivation and objectives, as follows:

5. [60]

   Dr Samuels considered whether there was any evidence of the defendant having engaged in terrorist acts or evidence, or whether he may do so in the future, taking into account the past results of psychological tests intended to assess the likelihood of a person engaging in terrorist attacks. Dr Samuels stated:

6. [61]

   The HCR-20 is an assessment tool that is used, in Dr Samuels’ words:

7. [62]

   In evidence during the hearing, Dr Samuels stated that, taking into account the items on the HCR-20, he would regard the defendant’s future risk of violence as being moderate. In his report, he contemplated what types of acts or threats of violence the defendant may commit in the future, and in what circumstances, as follows:

8. [63]

   In evidence, Dr Samuels recommended that a mental health approach would likely be beneficial if the defendant’s behaviour does again deteriorate, particularly if paranoid traits re-emerge following any resumption by the defendant of the use of cannabis:

9. [64]

   Dr Samuels has expressed an opinion that the defendant and the community would benefit from him returning to South Australia as soon as he is legally able to do so, in order that he would have the support of his immediate family, which comprises his mother, partner and sister:

10. [65]

    In his evidence in court, Dr Samuels reiterated that the defendant returning to South Australia would mitigate future risk. Dr Samuels stated:

The outcomes sought by the parties

1. [66]

   The plaintiff maintained its application that the defendant be subject to an ESO for two years, but submitted that, in light of the forensic reports obtained for the final hearing, it would be appropriate for the matter to be re-listed after 12 months for the purpose of determining whether the ESO should be varied, to allow the defendant to return to South Australia under suitable altered conditions. I understood this to be an acknowledgement of the benefits of the defendant resuming his family life in South Australia to both him and the community, in terms of the risk amelioration foreshadowed particularly by Dr Samuels.

2. [67]

   The plaintiff submitted that it was both technically and practically possible for an ESO to operate on a defendant who resided interstate. An extradition order could be sought if the defendant breached a condition to the ESO. In oral submissions, the plaintiff explained that, if the Court was minded to impose an ESO for a shorter period, a minimum of three months would be required for the necessary memoranda of understanding to be established between the relevant state agencies in New South Wales and South Australia.

3. [68]

   The defendant maintained that he had not committed a terrorist act as defined in s 100.1 of the Code and that the evidence did not establish at all or to the requisite standard that there is a risk of him committing such an act in the future. Thus two of the necessary prerequisites for making an ESO, being findings by the Court pursuant to s 20(c) and (d), could not be made.

Consideration

1. [69]

   At the preliminary hearing, I considered the risk assessment reports of psychologist Rachel Terry dated 28 June 2019 and 10 October 2019, and the risk intervention report of Community Corrections Officer Joyleen Nowrot, dated 26 July 2019. The defendant declined to co-operate with the preparation of those reports, thus depriving the authors of the benefit of directly assessing him.

2. [70]

   The opinions of Ms Dewson and Dr Samuels generally coincided on the significance of the defendant’s use of cannabis as the primary contributing factor to his behaviour that has attracted the interest of the authorities since 2016. They also agreed that his future use of cannabis was the key to whether he committed further offences and resumed making threats and that his level of risk of committing violent offences was moderate.

3. [71]

   There is a marked difference of opinion between Ms Dewson and Dr Samuels as to the level of risk of the defendant committing a terrorist-type offence. Ms Dewson thought that, based on the VERA-2R test and her clinical assessment, the defendant had a “moderate to high risk” of violent extremism, whereas Dr Samuels considered the application of the VERA-2R test as inappropriate for an offender like the defendant; in particular, Dr Samuels suggested that it overstates the defendant’s risk of perpetrating a terrorist act. Dr Samuels thought there was no appreciable risk of the defendant committing a terrorist-type offence of violence.

4. [72]

   Both the quote from Dr Samuels’ report at [62] above and my summary of Ms Dewson’s report highlight that the two experts were of the opinion that the defendant could revert to making “threats”, which necessitates a determination of whether, if the defendant again sent or put up posters of offending material, that would constitute a “terrorist act” pursuant to the definition in s 100.1 of the Code.

5. [73]

   The defendant submitted that the evidence as a whole does not establish whether, assuming the defendant sent or posted the offending material, he did so with one or more of the intentions set out at s 100.1(2), in particular, subs 2(a) to (e). Equally, that the plaintiff cannot exclude that the defendant’s intention came within subs 3.

6. [74]

   The plaintiff has not disputed that this is the necessary intention in order for a threat of action, rather than an action, to constitute a terrorist act. Having regard to Naaman (No 2) at [33]-[35], this must be so. An example of the court not being satisfied that threats which ostensibly threatened harm had the necessary intent to be terrorist acts is State of New South Wales v RC (No 2) [2019] NSWSC 845 per Garling J, particularly at [122]-[123].

7. [75]

   Counsel for the defendant, Mr Kerkyasharian, submitted that the defendant’s intention may have been to seek attention, underscore the promotion of his political cause, or may have been “just rambling”. This submission as to the evidence of the defendant’s intent attracts support from Dr Samuel’s report and his evidence at the hearing, in which he said, in relation to the incident of the defendant whilst in prison threatening to blow up Parliament House:

8. [76]

   I am of the opinion that, based on the evidence before me, at the time that the defendant sent and posted the offending material, he did not intend the acts of violence threatened therein. While a repetition of such threats in the future may well constitute a criminal offence, it would not constitute a terrorist act without the requisite intent, as defined in s 100.1 of the Code. I accept the opinion of Dr Samuels that any similar threats in the future are also unlikely to be accompanied by an intention or capacity to cause actual physical harm or otherwise come within the behaviours that are set out in subs (2) of the s 100.1 definition.

9. [77]

   Accordingly, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO. I note that if I had been satisfied to the requisite degree required by s 20(d), an exercise of the discretion to not make an order would have warranted serious consideration, in the circumstance that the defendant returning to South Australia at the earliest opportunity is the option carrying the least risk to the community of a serious terrorist act being committed: see Naaman (No 2) at [29](6).

10. [78]

    I make no further order with regards to an ESO, which has the effect that the defendant is no longer subject to the ISO.

Orders

1. [79]

   For these reasons, I make orders as follows:

   1. (1)

      The summons is dismissed.

   2. (2)

      The Interim Supervision Order made on 7 November 2019 (which came into effect on 24 November 2019 and was renewed on 18 December 2019, 12 January 2020 and 14 February 2020) is discharged forthwith.

   3. (3)

      Access to the Court’s file in this proceeding is restricted such that access is 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.