State of New South Wales v Cheema (Final)

1. [1]

   By Amended Summons filed in court and dated 28 August 2020, the plaintiff, the State of New South Wales (“the State”), seeks an extended supervision order (“ESO”) against the defendant, Mr Ahsan Kamal Cheema, of two years duration under ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW). Unless otherwise specified, all references to legislation are to this Act.

2. [2]

   Mr Cheema was subjected to an interim supervision order (“ISO”) by Johnson J on 15 June 2020 under ss 27 and 28 for a period of 28 days: see State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876. His Honour also made orders appointing one qualified psychiatrist and one registered psychologist to conduct evaluations of Mr Cheema and furnish reports for the purpose of the final hearing.

3. [3]

   Since the making of the original ISO by Johnson J, the order has been twice renewed in chambers, first by Walton J on 8 July 2020 with the ISO running up until 24 July 2020, and the second by Bellew J on 22 July 2020 with the ISO running up until 21 August 2021. In between the renewal by Bellew J and the hearing date, Mr Cheema entered custody. He has since received a term of imprisonment for one count of breaching the ISO made by Johnson J and two fraud-related offences. Following a successful severity appeal in the District Court, Mr Cheema will be eligible for parole from 22 May 2022.

4. [4]

   By operation of s 28(6), the ISO imposed by Johnson J and renewed by Bellew and Walton JJ is suspended until such a time as Mr Cheema exits lawful custody: see similarly Lynn v State of New South Wales [2019] NSWCA 300 at [9] – [12].

Issues in dispute

1. [5]

   The critical issue for determination is whether the Court can be satisfied to a high degree of probability that Mr Cheema poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the ESO sought.

2. [6]

   Mr Cheema, for the purpose of this final hearing, conceded that the other preconditions to the making of the order sought are met. One statutory precondition, being s 20(c), took on some importance in the contest at the preliminary hearing before Johnson J. That point has now been conceded by Mr Cheema on a very narrow basis, namely his exchange of letters with a Mr Tuki Lawrence satisfies the statutory definition of “convicted NSW terrorism activity offender” as that statutory definition is elucidated by s 10(c)(ii). In cross-examination Mr Cheema conceded that he had formed a close relationship with him when they were in gaol together (61.40T; 63.28T; 64.33T).

3. [7]

   I am satisfied on the balance of probabilities that this is not the only basis on which Mr Cheema satisfies the statutory definition of convicted NSW terrorism activity offender. Both Johnson J at the interim hearing and a unanimous Court of Appeal held that Mr Cheema satisfied the s 10(c)(i) definition and its expansion through s 10(1A)(b)(ii) with regard to a certain social media post made on social media accounts he operated, albeit to the lower interlocutory standard of proof. Accordingly, in this judgment I propose to assess the wider bases on which this statutory precondition was presented notwithstanding the concession made by Mr Cheema.

4. [8]

   An ancillary issue, contingent upon my making of the order sought, is the appropriateness of some of the conditions sought to be imposed on Mr Cheema by the State.

Statutory preconditions

1. [9]

   Section 20 sets out the preconditions for the making of an extended supervision order in the following terms:

2. [10]

   By s 50, proceedings under the Act are civil proceedings. It is important to bear in mind that while the central s 20(d) condition cannot be established unless the Court is satisfied to the statutory high degree of probability a higher standard of proof than generally applies to the resolution of issues in civil proceedings, other questions are resolved by the normal civil standard of the balance of probabilities. It may be of course given the consequence for the individual of the making of an order under s 25 that s 140(2) Evidence Act 1995 (NSW) will apply as appropriate.

3. [11]

   Mr Cheema is over 18 years of age and is (and was at the time the application was filed) serving a sentence of imprisonment for a NSW indictable offence, rendering him an “eligible offender” under s 7 of the Act. Furthermore, when the application was first made, Mr Cheema was subject to parole for the offence of failure to stop a vehicle during police pursuit contrary to s 51B(1) of the Crimes Act 1900 (NSW) (“the index offence”), a NSW indictable offence. Section 6(b) of the Act provides that a person is serving a sentence of imprisonment when they are on parole.

4. [12]

   The State’s application was made in accordance with Part 2 of the Act. The application was filed while Mr Cheema was serving a sentence of imprisonment; it was made within twelve months of the end of his custody; and had all the requisite supporting material.

5. [13]

   Sub-section 10(1) deems an offender to be a “convicted NSW terrorism activity offender” where the offender is serving a sentence of imprisonment for a NSW indictable offence, and relevantly:

6. [14]

   Sub-section 10(1A) also operates as a deeming provision. It provides certain activities are sufficient to satisfy the s 10(1)(c) criteria. Section 10(1A) is set out in the following terms:

7. [15]

   In determining whether a person is a convicted NSW terrorism activity offender, the Court may have regard to the list of non-exhaustive factors in s 11. In Mr Cheema’s case, it is unnecessary to go through these factors.

8. [16]

   There is no dispute about Mr Cheema satisfying the chapeau precondition in s 10(1), that he is serving a sentence of imprisonment for a NSW indictable offence.

9. [17]

   At the preliminary hearing before Johnson J, senior counsel for Mr Cheema argued that Mr Cheema did not fall into the definition of a Convicted NSW terrorism activity offender. The plaintiff sought to rely on a Facebook post shared by Mr Cheema on 5 February 2020 and publicly available on his Facebook page. The post contained a link to a website, containing essentially a blog-type academic post about a nasheed titled, “Heed the call” which had been previously released from an Islamic State media outlet, Ajinad Media. Professor Greg Barton, a well-known expert on Islam, Islamic movements and Islam in international politics, including, I’ll add, Islamic extremism, qualified for the State, defines a nasheed as “Arabic poetry, often with romantic martial themes about brothers-in-arms, generally sung a capella style” and popular with Salafi-jihadi extremists and the Islamic State (Professor Barton Report, 5 August 2020 at [3.5.1] – [3.5.2]).

10. [18]

    The effect of posting the link to Facebook was the automatic generation of an image of Arabic words and a microphone in front of a black background, taken from the blog itself, on Mr Cheema’s Facebook page, as well as a minor text extract from the article. It is important to note that the article was authored by Oxford graduate and academic Aymenn Jawad al-Tamimi. The article, perhaps better expressed as a blog, is ISIS-neutral, if I can put it that way, and could not by itself be described as advocating support for violent extremism.

11. [19]

    Johnson J determined at [129] that:

12. [20]

    Johnson J’s reasoning with regard to the NSW terrorism activity offender precondition was the subject of an appeal: Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190. The Court of Appeal found no error. Writing jointly, the Court (Bathurst CJ, Leeming and White JJA) held at [63] – [65]:

13. [21]

    Therefore, Mr Cheema’s Facebook post, the associated image generated by the link, the direct connection to Islamic State, notwithstanding the blog’s academic or morally neutral stance, amounted to “using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism”.

14. [22]

    Johnson J’s reasoning with respect to the Heed the Call post was upheld against a number of other challenges. For present purposes the extracted reasons above will suffice. I too am satisfied that the Heed the Call post passes through the s 10(1)(c)(i) gateway, although this time to the higher state of satisfaction required for the purpose of a final hearing. On the evidence before me, I am satisfied on the balance of probabilities that Mr Cheema, on accounts operated by him, used and displayed both an image and symbols (the Heed the Call image, associated Arabic text and isolated text extract from the blog) associated with an organisation that supports terrorist acts or violent extremism (the Islamic State, through its media outlet Ajinad Media).

15. [23]

    Even if I were wrong about that, I am also satisfied that Mr Cheema satisfies the definition of a NSW terrorism activity offender because of the letter he sent to Mr Tukiterangi Lawrence, as was appropriately conceded by Mr Cheema’s representatives in written submissions. I interpolate that Mr Lawrence was subjected to an interim detention order by Fullerton J on 21 August 2019: see State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101. The State’s application for final relief under the Act against Mr Tuki Lawrence has yet to come before the Court (I’ll add, however, that the matter is listed).

16. [24]

    Putting all of that to one side, the evidence before me supports a finding on the balance of probabilities that: first, Mr Lawrence is a person who has advocated support for any terrorist act or violent extremism; and second, Mr Cheema has had an “association” with Mr Lawrence as that term is expanded by s 10(1A)(b)(i), through his communication with him.

17. [25]

    The State adduced evidence of a letter penned by Mr Cheema when both he and Mr Lawrence were inmates at Goulburn Correctional Centre (albeit it appears Mr Lawrence was separated from and adjacent to Goulburn Correctional in the High Risk Management Correctional Centre). The letter contained little as far as violent extremism or radical salifi-jihadist thought is concerned. Its express terms could be described as almost innocuous in this regard, although some of its contents are obviously anti-authoritarian with respect to the police and corrective services. The letter began with the salutation, “My Dear Brother”, and contained many other articulations consistent with private correspondence between close friends; Mr Cheema reminisces about their friendship, states that he loves him, that he is part of his family, and is saddened by their separation (Ex MC-1 pp. 958 – 964). I infer from the content of this communication that the men have a continuing friendship even if contact between them is restricted due to each being subject to restrictive orders under the Act.

18. [26]

    As s 10(1A)(b)(i) makes abundantly clear, it is not the content of the communication itself but the mere fact that it was made that is sufficient to engage the deeming provision. So long as the communication is made with someone who has advocated support for violent extremism, its content is immaterial for the purpose of the subsection. The emphasis is upon the fact and nature of the association rather than the actual content of any communication. It is not necessary that the State demonstrate that Mr Cheema and Mr Lawrence communicated about violent extremism.

19. [27]

    Nor can there be any doubt that Mr Lawrence is a person who has previously advocated support for violent extremism. In evidence before me was a transcript of a surveillance listening device installed in Mr Lawrence’s cell at Goulburn, containing the following conversation between Mr Lawrence and his cellmate on 6 May 2019 (Ex MC-2 p. 95):

20. [28]

    It is unfortunate that the person labelled “V1” is not identified in the operation and transcription log sheet, nevertheless I am satisfied on the balance of probabilities that the speaker was Mr Lawrence for the following reasons. First, the person “V1” states that his daughter is two years old (Ex MC-2 p. 95). This age seems sharply consistent with the presentation of Mr Lawrence’s daughter in 2018, the year before the surveillance recordings, as aged about nine to twelve months old (See Ex MC-2 pp. 225 – 228, 245). Second, the surveillance operation and name of the transcription document is “Strike Force Parallax – LAWRENCE”, the same operational name that appears on the Cellebrite download on his phone. It makes logical sense that Mr Lawrence, the subject of the warrant and investigation, would be designated as person 1 of the two persons in the cell. Combined with the consistent description of Mr Lawrence’s daughter, the probabilities highly favour person V1 being Mr Tuki Lawrence.

21. [29]

    Furthermore, the material obtained from the Cellebrite download before me also supports the conclusion Mr Lawrence has advocated violent extremism. In a Whatsapp conversation on the evening of 30 November 2018 with an individual named Hamzah, Mr Lawrence made the following statements (Ex MC-2 pp. 187 – 189):

22. [30]

    Although left undefined, the Act clearly considers “advocating support for a terrorist act or violent extremism” to include, non-exhaustively, those examples of conduct provided in s 10(1A)(a), such as making a pledge of loyalty to a group that supports terrorist acts or violent extremism. For Mr Lawrence, his indication that he has “been in the Islamic State” for a lot longer than his cellmate is germane to the question of whether he has advocated support for first, a group that supports violent extremism and second, whether he himself has advocated support for violent extremism. It scarcely needs to be said that Islamic State is, at the very least, a group that advocates support for violent extremism, if not a social movement. Such a conclusion does not demand expert exposition.

23. [31]

    Particularly pertinent here is Mr Lawrence’s stated intention to not only martyr himself but for his children to follow that path, “to kill the West and blow themselves up”. This combined with the undertones of fighting, preparation and his stated inclusion ‘in’, or at the very least allegiance with, the Islamic State satisfies me on the balance of probabilities that Mr Lawrence has advocated support for violent extremism.

24. [32]

    As I have already said in cross examination, Mr Cheema conceded that he formed a close relationship with Mr Lawrence while they were both incarcerated at Goulburn Correctional Centre. They became close when they spent time together in the yard there (63.28T). Mr Cheema denied ever discussing Mr Lawrence’s religious beliefs with him. They trained, exercised and ate together, but Mr Cheema could not remember ever having discussed Mr Lawrence’s religious views with him (63.45T). He did come to learn that Mr Lawrence had been placed on an interim supervision order under the Act. He denied he was not being honest (64.15T). After some hesitation he admitted looking up to him and said, “he was a good person” (64.33T). He denied that he had ever discussed Mr Lawrence’s support for violent extremism with him and rejected the suggestion that his evidence was not true (64.50T). When cross-examined about the contents his letter, he denied it contained any implicit reference to his Islamic State ideology or belief. (66.29T).

25. [33]

    I find it hard to accept that Mr Lawrence never expressed his apparently Safali-Jihidist views to his good friend, Mr Cheema, given the freedom with which the evidence suggests he was otherwise willing to express them. In any event, for the reasons I have given, it is not necessary for me to make a positive finding that he did. The fact of their association is sufficient.

26. [34]

    By reason of their association, I am satisfied on the balance of probabilities that Mr Cheema is a convicted NSW terrorism activity offender.

27. [35]

    Among other associations that are unnecessary to detail for the purpose of the statutory precondition, the State also sought to rely on Mr Cheema’s current association with his partner, Ms Rose Karroum.

28. [36]

    Mr Cheema met Ms Karroum after his release to parole on Facebook around April 2020 (70.18T). In his affidavit sworn on 27 August 2020 (defendant’s Court Book Tab 4), he did not mention Ms Karroum by name, but included in his aspirations the desire to marry, work and have a family. He did speak of “his partner” to Dr Katie Seidler, clinical and forensic psychologist, one of the Court appointed experts, whose report of 29 July 2020 is in the plaintiff’s Court Book Vol. 1 Tab 2. Mr Cheema told Dr Seidler that they met on Facebook and “just clicked”. They have associates in common which “led to their bond developing more quickly” (Dr Seidler [64], p. 38). Dr Seidler also records ([65]) that Mr Cheema told her that he had been “banned” from associating with his partner because her “ex husband and sister” were killed overseas as freedom fighters for a terrorist organisation. Mr Cheema claimed to be unsure of the organisation. Mr Cheema said he understood why he was banned from seeing his partner, but he denied that she had the same extremist beliefs as her former husband and sister (Dr Seidler [66]).

29. [37]

    In cross-examination Mr Cheema accepted that Abdul-Rahman Saleh was one of the common associates, other evidence suggests he has encouraged by social media Mujahadeen martyrdom (affidavit DSC Bernadette Vella affirmed 4 August 2020, Annexure H, Court Book Tab 19, p. 666).

30. [38]

    Although Mr Cheema accepted that he told Dr Seidler that Ms Karroum’s former husband was killed overseas and he accepted that he had died in Syria (71.18T), he denied telling Dr Seidler that he had died fighting in Syria for a terrorist organisation (71.25T). And he denied that Ms Karroum regarded her former husband as a Mujahadeen martyr and herself as an ISIS widow. It is difficult to accept his evidence in this regard. A number of Ms Karroum’s Facebook posts are printed out as attachments to the fourth affidavit of Snr Const. Helena Kadlec sworn on 15 July 2020 (plaintiff’s Court Book, Tab 14, p. 442ff). These Facebook posts have been analysed in the supplementary report of Professor Greg Barton of 29 July 2020 (plaintiff’s Court Book Tab 9, p. 258f). In these posts Ms Karroum speaks of his martyrdom and that of her sister and brother-in-law. On a post of 1 January 2019, dealing with the death of her sister and brother-in-law, one of the images appears to be of armed Islamic fighters walking along the track with the caption “Until victory or shahadah”. Another of 28 March 2019 is in the following terms:

31. [39]

    On 19 September 2019, Ms Karroum posted “another memorial to her departed husband “jihad”, G”” (Barton supplementary report, CB, p. 270 [2.1.14]). Professor Barton expresses the opinion that the post “further confirms [Ms Karroum’s] view of her departed husband “jihad” and “G” is a noble Mujahid and Shaeed – a martyr who died fighting in the Holy war defending Muslims”.

32. [40]

    I am not purporting to summarise all of the evidence about Ms Karroum’s posts. I will deal with two more. On 7 December 2019 (CB Tab 13, p. 498) she posted an image of a man and a woman in silhouette. They are holding hands. It is obvious that the man depicted is a Mujahid carrying an assault rifle. He is holding hands with a woman apparently clad in an abaya, a loose fitting outer garment, sometimes favoured by Muslim women for reasons of modesty (supplementary Barton report [2.1.16], CB p. 271). The caption reads:

33. [41]

    A post of 16 January 2020 contains two similar images of a bearded man wearing a black hood, apparently Ms Karroum’s former husband. The caption reads, “Green bird baby in sha’ Allah love you always”. Professor Barton says ([2.1.15] p. 270):

34. [42]

    Having reviewed and analysed the Facebook posts attributed to Ms Karroum, Professor Barton offers the following opinion, which I accept ([5.1], CB Tab 9, p. 277):

35. [43]

    In cross-examination, Mr Cheema denied that he was aware that Ms Karroum: “glorifies Salafi Jihadi violent extremism”; “the martyrdom of the Mujahadeen”; “the ideology of the Islamic State”; and that he shared “those same very beliefs” (73.5 - .20T). Mr Cheema explained his relationship with Ms Karroum in these terms (74.5 - .20T):

36. [44]

    While it is very difficult to accept Mr Cheema’s account that he is unaware of, what appears to be on the evidence before me, Ms Karroum’s strong and entrenched beliefs supportive of violent extremism, as I have said, I accept the opinion of Professor Barton as to the significance of the content of Ms Karroum’s Facebook posts which he has considered and analysed. I am satisfied that Mr Cheema’s association with Ms Karroum satisfies s 10(1)(c)(ii) because she is a person who is advocating support for violent extremism. This is so whether or not the evidence Mr Cheema gave about his knowledge of Ms Karroum’s beliefs is true. Frankly, I do not accept it having regard to the account he gave to Dr Seidler which I have referred to above.

37. [45]

    The State also relies upon Mr Cheema’s association with Ahmed Sayier Naizmand and Abdul-Rahman Saleh. I have referred to the latter’s relevance already.

38. [46]

    According to the affidavit of Det. Sgt. Kate James sworn on 29 May 2020 (plaintiff’s CB Vol 2, p. 712) Mr Cheema and Mr Naizmand were housed at the Goulburn Correctional Centre in the same area served by the same yard, but in different cells, between 28 January 2019 and 17 January 2020. According to Det. Sgt James, a Cellebrite download of Mr Cheema’s phone after it was seized by police officers executing a search warrant in March 2020 disclosed five incoming and unanswered calls from Mr Naizmand to Mr Cheema. According to Det. Snr. Const. Vella’s third affidavit affirmed on 5 June 2020 (plaintiff’s Court Book Vol. 2, Tab 17 [21] – [22], Annexure C), there are 59 entries of communication between the mobile phone of Mr Cheema and that of Mr Naizmand. Mr Naizmand’s phone number is associated with contact information saved from Mr Cheema in three locations under the name Abu Musab. In cross-examination, Mr Cheema accepted that Mr Naizmad was also known to him as Abu Musab (61.23T).

39. [47]

    Mr Naizmand came to the attention of law enforcement authorities in May 2014 under suspicion of being involved with assisting Australian foreign incursion fighters to go to Syria. His passport was cancelled on 1 July 2013. An Interim Control Order was imposed on 5 of March 2015 which was contravened on 5 occasions. On 27 February 2020, Bromwich J of the Federal Court of Australia made another Interim Control Order which was confirmed on 20 May 2020. Mr Cheema knew that Mr Naizmand was on a control order (67.25T). He claimed to have no knowledge of why Mr Naizmand was in custody, what his religious views were or whether he had “in the past supported the ideology of Islamic State” (67.20 - .45T). Mr Cheema agreed that he spoke to Mr Naizmand after the latter was released to the community in February 2020. Mr Cheema claimed that he could not remember downloading Islamic State videos within a week after speaking to him by video call on 13 March 2020 (68.15 - .25T), although he admitted that he had looked at Islamic State videos (68.49T).

40. [48]

    Det. Snr. Const. Vella detailed Mr Cheema’s access of Islamic State videos in paragraph 8 of her affidavit affirmed on 11 May 2020 (plaintiff’s CB 2, Tab 14 pp. 520 – 531). The circumstances of Mr Naizmand’s interaction with law enforcement is fully set out in the affidavit of Commander Sandra Booth of the Australian Federal Police in her affidavit sworn on 31 July 2020 (plaintiff’s CB 2, Tab 20, p. 679ff). Commander Booth confirms that the telephone device attributed by DSC Vella to Mr Naizmand was the device he was permitted to use by the AFP under the conditions of the control order to which he was subject.

41. [49]

    Mr Cheema’s denial of knowledge of Mr Naizmand’s belief and his advocacy of violent extremism is highly implausible. Even if I were to put that consideration to one side, I am satisfied that his association with Mr Naizmand falls within s 10(1)(c)(ii) and is a further basis for finding that Mr Cheema is a convicted New South Wales terrorism activity offender.

Unacceptable risk of committing a serious terrorism offence if not kept under supervision

1. [50]

   By operation of s 20(d), the Court may not make an ESO unless it is satisfied to the required high degree of probability that Mr Cheema poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

2. [51]

   The mandatory considerations the Court must consider before making its dispositive order under s 25(3) are also relevant to the question of whether Mr Cheema poses an unacceptable risk under s 20(d): see State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [52] and in the similar legislative context of the Crimes (High Risk Offenders) Act 2006 (NSW), State of New South Wales v Fisk [2013] NSWSC 364 at [23]. Accordingly, after discussing the relevant authorities I propose to deal with those mandatory considerations which I will also take into account in my assessment of the risk or otherwise posed by Mr Cheema. However, I acknowledge the s 20(d) inquiry is not constrained by them. Other matters are also relevant.

3. [52]

   The Court of Appeal in State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 (“Naaman (No 2)”) (Basten, Macfarlan and Leeming JJA) made the following six observations as to the operation of the s 20(d) test (at [29]):

4. [53]

   In determining whether to make the order sought, the safety of the community must be the paramount consideration of the Court: s 25(2).

5. [54]

   ‘Serious terrorism offence’, the expression deployed by s 20(d), is defined under s 4 to mean “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”. The offences under the Criminal Code Act 1995 (Cth) caught by this definition cover a broad range of conduct, including inter alia:

   1. (1)

      Engaging in a terrorist act, s 101.1;

   2. (2)

      Providing or receiving training in preparation, engagement or assistance of a terrorist act, s 101.2;

   3. (3)

      Possessing something in relation to the preparation for, engagement in, or assistance with a terrorist act, s 101.4;

   4. (4)

      Being a member of a terrorist organisation, s 102.3;

   5. (5)

      Recruiting for a terrorist organisation, s 102.6; and

   6. (6)

      Providing support to a terrorist organisation, s 102.7.

6. [55]

   I agree with Johnson J in the preliminary judgment (at [189]):

Ideological, religious, political and social beliefs or commitments – s 25(3)(l)

1. [56]

   The State placed considerable emphasis on the evidence and opinions of Professor Barton of Mr Cheema’s religious and political beliefs as informing the nature of his risk. This was focussed on the first four categories dealt with in the immediately following paragraphs.

2. [57]

   The State relied on material from the Corrections Intelligence Group. All of that material can be readily dismissed as either irrelevant, speculative, or otherwise without probative value. As intelligence it doubtless has value for the purposes for which it is gathered but it does not provide reliable proof of the facts represented under the law of evidence.

3. [58]

   The first is a Corrections Intelligence Group report detailing a search of Mr Cheema’s cell on 8 November 2014. A diary marked to Mr Cheema was located in the search enclosing contact information for various persons, including other inmates. The report states that “[a] number of the persons listed are known to have links to Islamic extremism and Middle Eastern Organised Crime…” (Ex MC-1 p. 918). Quite frankly, it would be surprising indeed if associations Mr Cheema had formed whilst in custody did not have links to organised crime, or indeed, as often happens when inmates are segregated on the basis of their identity, Islamic extremism as opposed to violent extremism. The report says nothing of the extent of Mr Cheema’s relationship with these persons. It would be an incredibly long bow to draw to state that Mr Cheema’s status as a prisoner and proximity to criminals is somehow relevant to his religious or ideological beliefs. Of course, many prisoners take comfort from renewed religiosity in gaol. Without more, this report could not possibly inform his risk.

4. [59]

   The second report cites an unnamed source describing an unnamed inmate with the characteristics of “a beard and a big gut and Pakistani background” who had arrived at the correctional centre on 9 November 2017 (the date which Mr Cheema had arrived) discussing with other inmates that it was just to “kill in the name of religion” (Ex MC-1 p. 940). Importantly, the report stated, “There was no information available to support the claims made by [the unnamed individual]”. The claims made, therefore, are unverifiable. it is not clear whether the subject of claims is Mr Cheema, and nor are the claimant’s motives discernible from the report. I place it to one side.

5. [60]

   The third report relied upon is perhaps the most concerning. The State seek to rely on a report that Mr Cheema was observed practicing the call to prayer in his cell as evidence of an “emerging religious commitment”. It may have been, but to be blunt, to rely on the call to prayer in such a way is beside the point. There is a plethora of material by which the court can draw the inference that Mr Cheema is an adherent of the Islamic faith. The practice of the Muslim faith and belief in its teachings are not themselves probative of any issue arising in these proceedings. Extreme views cloaked in the language of established religious belief may be a different matter. An “emerging religious commitment” is not probative of risk.

6. [61]

   The affidavit of Snr. Constable Helena Kadlech sworn on 8 February 2019 (plaintiff’s CB Tab 10 pp. 289ff) provides evidence of the publicly available information from Mr Cheema’s Facebook page which was accessed and downloaded by the deponent. The material covers the period from December 2018 to January 2019. In an exchange with other Facebook users in December 2018, Mr Cheema defended the reputation of Mr Ahmed Elomar, whose brother, Mr Mohammed Elomar is a deceased ISIS fighter. He questions the suggestion that the latter was a terrorist. I am paraphrasing that he raised the question of the definition of a terrorist and posed the rhetorical question whether allied nations engaged in the air campaign against ISIS including the RAAF and USAF “dropping bombs … in populated areas killing families, women, children are they terrirists (sic)?” I accept the State’s argument that when considered in context including that the post provided links Martial Nasheeds and other martial images, the comment raises questions about whether Mr Cheema holds extreme political views in connection with the involvement of the allied nations in the Syrian conflict.

7. [62]

   Snr Const. Kadlec’s evidence also shows that at this time Mr Cheema’s Facebook page included a “featured photo” of an image of the Shahada (“there is no God but Allah and Mohammed is his messenger”) over crossed assault rifles. Professor Barton identified the image as having associations with jihadism (plaintiff’s CB Tab 8, p. 241 [11]). Professor Barton opined that the crossed assault rifles reflect jihadi iconography consistent with support for the general jihadi narrative of violent extremism. Professor Barton states that a depiction of a banner or flag with the Shahada statement on it is not in itself evidence of extreme beliefs. He states, however, the representation of white text on a black banner is often taken to be a symbol of jihadi groups such as al-Qaeda and ISIS. In a similar vein is the featured “photo” of the Shahada in white text on a black background over crossed swords adjacent to a white lion. Professor Barton identifies the crossed swords as reminiscent of a mid-twentieth century version of the flag of the Kingdom of Saudi Arabia. The lion is regarded as a noble beast associated with a heroic and Godly struggle. Professor Barton says ([10.5]):

8. [63]

   I have referred above (at [20] – [21]) to the Heed the Call nasheed in a different context. Professor Barton states (p. 242 [12.4]) that this nasheed is linked to ISIS, as is seen by the fact that it was released by the ISIS media channel Ajnad Media. It is important to bear in mind that the image was displayed on Mr Cheema’s Facebook page as recently as 5 February 2020, within a month of his release to parole.

9. [64]

   Between March and April 2019, police lawfully deployed listening devices recording conversations between Mr Cheema and his cell mate, Mr Tatenda Chabrika in their shared cell. Transcripts of the material are contained in the affidavit of Det. Snr. Const. Justin Hewitt sworn on 28 May 2020 (plaintiff’s CB, Tab 25, p. 811ff). It is not necessary to set out the conversations in detail. The conversations occurred while the cell mates are watching TV programmes or videos saved to a USB stick depicting various aspects of the Syrian conflict.

10. [65]

    In a transcript of a conversation of 2 April 2019, Mr Cheema was listening to a commentary including references to those “who pledged allegiance to Mohammed to do the jihad”. Mr Cheema comments “he goes through all the leaders of the Mujahadeen”. The narration on the video also refers to “the arms of its righteous sons and the arms of their immigrant brothers who shared with them pain and joy in all stages of the jihad”.

11. [66]

    In another video there is reference to martyrdom and the “virgins of paradise”. Mr Cheema comments “it shows them picking … who’s going to do … the suicide operation”. Professor Barton expresses the opinion based upon the commentary which can be heard that Mr Cheema is watching a pro-ISIS video production (p. 237 [6.20]). I repeat that in cross-examination, Mr Cheema admitted to watching ISIS videos.

12. [67]

    As I have said I have not set out the whole of the material which is quite extensive. I have sought to capture the tenor of the material and the conversation it engendered. Watching these programs themselves says something about Mr Cheema’s interest in the activities of Islamic State. His comments are generally approbative. He is not disapproving in any way of what he is watching.

13. [68]

    I have already referred to this matter when discussing the evidence in relation to Mr Cheema’s association with Mr Naizmand. The titles of articles viewed included: “The Collapse of the Caliphate”, “ISIS Releases Videos of fighters and Baghuz as War Reached Final Days” and “Islamic State Prepares Resurgence”. It may also be significant that he viewed this material, a matter he does not deny, shortly after contact with Mr Naizmand when they were both in the community. Moreover, the evidence indicates that contact was frequent. Professor Barton commented that viewing this material indicated a worrying level of interest in Islamic State (plaintiff’s CB, Tab 9 [20.3]).

14. [69]

    There is other police material in 2004, May 2017 and January 2019 where Mr Cheema has made threats to kill police, I infer while agitated at the point of arrest. In 2004, a very long time ago, he threatened to join al Qaeda and “bomb the cops”. When arrested for intimidating his mother with a knife on 22 May 2017 he was obviously in a state agitation leading police to convey him to hospital for a mental health assessment. He is said to have referenced the late Curtis Chang, stating he will kill police. After his arrest for the index offences in January 2019 while being handcuffed at hospital he made threats to kill police “when I get out”. It is difficult to treat these threats seriously as evidence going against the plaintiff in the context of the State’s application. I acknowledge that when made they were intended to intimidate police. I am not persuaded Mr Cheema meant to act on them.

15. [70]

    As I have said previously, Dr Katie Seidler is a clinical and forensic psychologist who is one of the Court appointed experts in this matter. Her reports of 31 July 2020 and 24 August 2020 are in the plaintiff’s CB at Tabs 2 and 3 respectively. In her first report ([121], p. 52), Dr Seidler records that Mr Cheema acknowledged that he was first exposed to some extremist ideology/content when he was in jail in 2013 and came into contact with other inmates who were committed to this ideology. He acknowledged having heard lectures and seen videos “that espouse extremist content and encourage religious jihad”. Mr Cheema said he found the material “interesting”. He thought he was looking at a “different world” and this was fascinating, “like seeing something (he has) never seen before”. Mr Cheema denied ever being motivated to become involved, although he thought some terrorist organisations overseas are fighting to protect and support Muslims. He also recognises that such groups were “harming others” and “making it worse” ([122], p. 53). He also acknowledged having associations with people who are of interest to national security as a result of terrorist connections ([125], p. 53). Mr Cheema said he did not wish to become involved with their activities.

16. [71]

    It is pertinent to record in this part of the judgment that Mr Cheema read his own affidavit sworn on 27 August 2020, that of his sister, Sumaira Cheema sworn on 19 August 2020 and that of his mother Nighat Hassan sworn on 19 August 2020. Ms Cheema was not required for cross-examination. In his affidavit, Mr Cheema states that he is not religiously strict nor is his family. He gives an example of never having fasted for one full Ramadan. He accepted that he was interested in what was happening in the wars in the Middle East, but he stated that “terrorists and violent extremists are just making things worse for all the Muslims because they are destroying everything as well”. He said that he did not agree with what they were doing, and he did not agree with anyone hurting innocent people.

17. [72]

    He acknowledged telling Dr Seidler about knowing people of interest to national security organisations. He said he met these people in the yard at Goulburn Correctional Centre. He said they were coming out of Supermax. He claimed to have no interest in what they are doing now. Had he known associating with them “could make me a terrorist” (defendant’s CB, Tab 4, [19]), he would not have associated with them. He confirmed his aspirations were for a pro-social normal life, married with a family and work to go to.

18. [73]

    Ms Cheema states that “the whole concept of ‘terrorism’ is fundamentally incongruent with the family’s religious and cultural values” (defendant’s CB, Tab 5, [11]). While they are adherents of the Muslim faith none of her family, including Mr Cheema, “have ever been what [she] would describe as ‘extremist’”. She said her parents, before their separation, raised the children “with the values of Australian culture”. She attended a Christian school where they were afforded Islamic religious instruction. She stated that “as a family we have never endorsed or support (sic) radical interpretations of Islam that promote or justify violence”. Ms Hassan states that she raised her children as Muslim, but she describes her belief and the beliefs of her children as “very moderate” (Defendant’s CB Tab 6 [8]). Ms Hassan states that the family do not attend mosque regularly and the family have friends of various religious beliefs including Hindu and Christian. Some of her friends are “non-religious”. She does not support the use of violence or threats in the name of religion. Neither she nor her daughter wear the hijab.

19. [74]

    I have set out pertinent cross-examination of Mr Cheema in relation to this evidence above and I will not repeat it here. Ms Hassan was aware that since his release from jail in January 2020 her son had relapsed into heroin use, albeit not in her presence (80.20T). Her son’s lapses were a great disappointment to her (82.21T). She was not challenged in cross-examination about her description of the nature of her faith and the pattern of her practice of it.

The court appointed experts and Dr Eagle

1. [75]

   I will now dealing with the experts who were appointed under s 24(5) of the Act. The experts are Dr Seidler and Dr Yolisha Singh, forensic psychiatrist. As is common in the assessment of the risk of an offender committing a further serious offence of a particular kind, each expert utilised a structured professional judgment tool or tools (“SPJ”). Dr Eagle who prepared the risk assessment report referred to s 23(3)(b) and s 25(3)(b) took the same approach. That is not to say that I understand their opinions to be wholly based upon the application of the relevant SPJs but that the SPJ was used as an aid in the assessment and formation of the professional opinion expressed by each of the experts. The relevant SPJs applicable to assessment of the risk of engagement in terrorist activity are the Violet Extremism Risk Assessment – Version 2 Revised (“VERA 2R”) and the Terrorist Radicalisation Assessment Protocol (“TRAP 18”). Perhaps more controversially Dr Seidler also undertook the Level of Services, Case Management Inventory (“LS/CMI”) and the Historical Clinical Risk Twenty – Version (“HCR – 20 V3), structural risk assessment guides relating generally to antisocial conduct and the risk of future violence generally respectively. Dr Singh also administered both VERA 2R and HCR - 20 V3. Dr Eagle also administered the HCR-20 V3. I mention these matters at the outset because there was considerable focus upon the inherent limitations in the VERA 2R and TRAP 18 on the one hand, and the applicability of the HCR – 20 V3 on the other. I should say that Mr M Robinson SC and Dr J Lucy of Counsel who appeared for Mr Cheema provided very detailed written submissions challenging the evidential utility of the various tools employed by Dr Seidler, Dr Singh and Dr Eagle. The attack was two-pronged. First learned counsel embarked on the lengthy analysis of Australian case law by which they sought to undermine the cogency of the SPJs. Secondly, to the extent to which the experts applied the HCR – 20 VC and the like, as they were asked to do in their qualifying letter, counsel argued that the results produced by the application of those general tools were simply irrelevant to the assessment of the risk of Mr Cheema engaging in a serious terrorism offence, if not under an ESO. The argument was organised by reference to the case law, the proper approach to assessing the relevant risk and pointing out the acknowledgment by each expert of the limitations in the tools employed by her in any event.

2. [76]

   With respect, it is not necessary for me to embark upon a detailed analysis of the relevant case law. It is clear from the express provisions of ss 23(3)(b) and 25(3)(a) – (c) that parliament expects that the Court would receive evidence of this type. Although guidance may be derived from the treatment of such evidence in other like cases, because the material is concerned with a factual question, the present assessment of the risk of future offending, previous decisions are not strictly binding. Nonetheless, to the extent to which previous decisions suggest care in evaluation of evidence of this type, the need to avoid delegating the Court’s responsibility for determining ultimate questions to experts and assessments of risk ought not be understood as predictions of future conduct, I will take the matters argued into account.

3. [77]

   The approach I propose to take is to summarise the opinions of each of the experts including Dr Eagle and then deal with the matters raised in cross-examination. Each expert was subjected to a similar line of cross-examination and each made similar, if not identical concessions in relation to the limitations of the SPJs and the limited applicability of the risk assessment tools developed for assessing the risk of general antisocial behaviour and violent offending to the specific area of assessing the risk of engaging in a serious terrorism offence.

4. [78]

   In her report of 31 July 2020 (plaintiff’s CB 1, Tab 4, p. 103), Dr Singh referred to the VERA 2R as a structured professional judgment tool specifically developed for the individual assessment of the risk of those inspired by any beliefs, principles or philosophy which fall within the spectrum of ideologically motivated violence. She emphasised “there is no one single pattern or profile for violent extremists”. Nonetheless, VERA 2R is based upon such empiricism as is available and the current state of expert knowledge concerning extremism. It is widely used. I interpolate that it arose out of cross-examination of each of the experts that to use the SPJ tool a two-day course of training is required under the tutelage of the expert who developed it, Dr Elaine Pressman. Dr Singh provided the following explanation of the tools structure and purpose (plaintiff’s CB 1, Tab 4, p. 130):

5. [79]

   In Dr Singh’s assessment of Mr Cheema and his profile on the HCR – 20 V3, “the overall risk judgment is that Mr Cheema presents with a high loading of historical, clinical and risk management factors for future violent offending” (Tab 2, p. 114).

6. [80]

   Dr Singh regarded Mr Cheema as a willing participant in the assessment who “engaged very well”. He appeared open and apparently genuine.

7. [81]

   Dr Singh regarded her diagnosis of Mr Cheema as suffering “severe substance abuse disorder” as of primary concern. He also suffered a generalised anxiety disorder and met the criteria for antisocial personality disorder. He also met the criteria for a major depressive disorder of moderate severity (in remission) substance induced psychotic disorder and attention deficit-hyperactivity disorder of moderate severity, the symptoms of which have attenuated with age.

8. [82]

   While acknowledging the limitation of the SPJs she applied, Dr Singh formed the opinion that Mr Cheema may be at increased risk of engaging in violence and aggression to authority figures such as police and correctional officers when in company particularly if intoxicated, and possibly involving a weapon given his criminal history. He may justify his conduct on the ground of perceived injustice to Muslim people. She also regarded him as at risk of possessing things connected with terrorist acts, given his interest in ISIS related material in the past. Through his sourcing of violent extremist material including Nasheeds online, there is a risk that Mr Cheema may be identified by violent extremists as a fellow traveller and recruited to the cause, given his susceptibility to peer influence. He may also seek to influence or indoctrinate others.

9. [83]

   In her supplementary report of 28 August 2020 (plaintiff’s CB 1, Tab 5), Dr Singh adhered to her previous views and expressed the view that the stringent conditions sought are likely to ameliorate the risk she identified.

10. [84]

    As I have mentioned, Dr Seidler’s primary report dated 29 July 2020 is at plaintiff’s CB 1, Tab 2, p 15ff. Dr Seidler conducted a psychometric assessment of Mr Cheema using the Personality Assessment Inventory (“PAI”). The results suggested that Mr Cheema is a person who has a history of acting out behaviours most seriously in the area of substance abuse. There are concerns with impulsivity, recklessness and sensation seeking which may impair judgment. His personality structure is reflective of antisocial features. There is evidence of anxiety and stress which may be a function of his involvement in the legal system. He has a negative self-image. His results also suggest he would be amenable to psychological treatment.

11. [85]

    Dr Seidler said that Mr Cheema does not present with a strong investment in extremist ideology and does not feel any personal responsibility to act on such beliefs. Rather, he is an “observer” who does show some interest and engagement (Tab 2, p. 62 [159]). Dr Seidler states that Mr Cheema presents as a person searching for “a sense of identity status and belonging” within an antisocial peer culture in more recent years within a group who endorse extreme views whom he has associated with in gaol.

12. [86]

    Dr Seidler recorded that Mr Cheema was a willing participant in her assessment. So far as the VERA 2R is concerned, Dr Seidler rated Mr Cheema in the moderate range in X XX XXX XXXX XXXXXX, in the low to moderate XX XXX XXXXXX XXXXXXX XXXXXX. I infer that she rated him low in the XXXXXX XXX XXXXXX XXXXXX ([172] pp. 66 – 67) and probably high in the XXXX XXXXXX XXXXX XXXXX, as she said he had “few protective factors that would inoculate against this risk”. I infer, overall, her rating is no higher than moderate.

13. [87]

    In her second report of 24 August 2020 for which she reviewed additional material concerning Mr Cheema’s associations she confirmed her views previously expressed.

14. [88]

    Dr Seidler stated that the LS/CMI risk assessment tool produced a very high risk of future criminal conduct and the HCR 20 – V3 suggested that Mr Cheema would pose a moderate risk of future violence generally.

15. [89]

    Dr Seidler stated that Mr Cheema’s risk:

16. [90]

    Dr Eagle’s report of 15 May 2020 is found at plaintiff’s CB 1, Tab 6, p. 126ff. Mr Cheema did not consent to a psychiatric examination by Dr Eagle for the purpose of her report and accordingly I am required to find that he was not willing to participate in the assessment process. While Dr Eagle stated in cross-examination that clinical assessment is very important to “risk assessment” and “central”, I am not of the view that this detracts from the weight that should otherwise be afforded to Dr Eagle’s opinion. These are civil proceedings. Section 25 itself makes the willingness of Mr Cheema to participate in the process a mandatory relevant factor for the Court’s consideration. The general considerations of inferential reasoning in civil proceedings would suggest that to the extent to which Dr Eagle’s opinions would enable an inference to be drawn against Mr Cheema, his failure to co-operate may lead to the inference being more readily drawn.

17. [91]

    At the outset of her report Dr Eagle explained the “inherent limitations” in risk assessment process which are “substantially increased in relation to terrorism and violent extremism, particularly given the specific limitations of the research in this area”. Because she was not able to undertake a clinical psychiatric assessment of Mr Cheema, she was limited to a desk top review of the documents. Mr Cheema did not afford her the opportunity to conduct a mental state examination ([9] – [11], p. 129). Dr Eagle repeated these limitations (at [207] – [208]) and she explained (at [209]):

18. [92]

    Dr Eagle also pointed out that the relationship between mental illness and violent extremism is highly complex ([212], p. 156). However, such research as is available indicates a higher prevalence of mental illness and mental disorders for lone actor terrorists than the general population. However, mental illness is only one “of many drivers in an individual’s pathway to violence”.

19. [93]

    Dr Eagle identified a number of risk factors associated with an increased risk of violent extremism by reference to the VERA 2R. They included: interest in ideology supporting violent extremism, although it was “less clear whether he had established commitment to the ideology” ([216.1.1]); perceived grievances or injustices over western treatment of Muslims ([216.1.2]); possible derogation of Australia’s involvement in the Syrian conflict; Mr Cheema has sought out, disseminated and used violent extremist materials including the materials set out above ([216.2.1]); his associations with persons who promote violent extremism ([216.2.3]); while Mr Cheema had not expressed a specific intention to commit an act of violent extremism, in the lawfully recorded cell conversations he had spoken with admiration of the type of weapons depicted in the images being viewed; Mr Cheema is described by others who have examined him as highly susceptible to peer influence and has associated with persons linked to violent extremism ([216.2.7]); his violent criminal history includes violence involving the use of firearms and knives ([216.3.3]); Mr Cheema appears to have developed an increasing pre-occupation with Islamic religious beliefs ([216.4.1]); some of his past criminal offending has been partially motivated by opportunism, but this is not a significant motivating factor ([216.4.2]); Mr Cheema’s primary potential motivation in relation to violent extremism would appear to be group belonging ([216.4.3]); and status and stability may be motivational factors ([216.4.7 - .8]). The only obvious potentially protective factor appears to be the support of his pro-social family.

20. [94]

    Dr Eagle did not rate the risk in terms of low, moderate or high, but thought the factors she had identified indicated an increased risk Mr Cheema might engage in acts of violent extremism.

21. [95]

    So far as the TRAP 18 was concerned, Dr Eagle identified some variables that were relevant to risk assessment. However, as I have said, the purpose of the TRAP 18 is to attempt to identify a developed risk. There are two sets of variables, the first 8 being warning behaviours and the second 10 being distal characteristics from the available empirical and theoretical research on lone actor terrorists. Mr Cheema, on the material available to Dr Eagle, exhibited 2 of the 8 proximal warning behaviours, being fixation in terms of an increasing preoccupation with violent extremist material and a persistent interest in the use of weapons. The material suggested to Dr Eagle that Mr Cheema exhibited 6 and possibly 7 of the 10 distal characteristics including moral outrage, the making of statements reflecting justification for violence, the pattern of internet use, the absence of occupational stability and recent changes in his thinking including the attraction to association with persons interested in violent extremism, the absence of a stable relationship, and the propensity for criminal violence.

22. [96]

    There were difficulties with applying the HCR 20 V3, given the absence of the clinical psychiatric assessment. However, the Level of Service Inventory – Revised (“LSI-9”), an actuarial assessment tool was capable of application, although ideally it should have been carried out in conjunction with a clinical interview. On the material available, Mr Cheema had a number of risk factors indicating a high risk of violent reoffending.

23. [97]

    Dr Eagle developed or postulated scenarios indicating an increased risk of violent extremism and she regarded Mr Cheema as most vulnerable for engaging in acts of violent extremism as a result of the influence of others associated with violent extremism; ongoing exposure to violent extremist propaganda could increase his susceptibility; a combination of the preceding factors may lead to the development of an increasing sense of grievance combined with an increased endorsement of extremist beliefs; the use of illicit substances is likely to be a barrier to the establishment of pro-social influences in relationships; access to weapons such as a firearm may lead to a risk of escalation in confrontation with authority figures such as police; his vulnerability may lead to him being identified by associates with an interest in violent extremism as a person who can be recruited to their cause; and Mr Cheema may seek to influence others. This is all similar to the approach of Dr Singh.

24. [98]

    Dr Eagle is of the opinion that Mr Cheema suffered an antisocial personality disorder and a severe substance abuse disorder. Dr Eagle did not believe that any psychiatric or psychological condition of Mr Cheema would significantly bear on his risk of violent extremism, although his substance abuse might make him vulnerable to influence by others.

25. [99]

    It is convenient to deal with the cross-examination of the experts together as I have said given that a common approach was, appropriately, adopted. Before doing so, I should mention, however, at the outset of the hearing I made a non-disclosure order including the following:

26. [100]

    Dr Singh confirmed that she had qualified to use the VERA 2R as an assessment tool (119.36T). She is also qualified to use the HCR - 20 V3 (119.43T). Dr Singh explained that the VERA 2R is not valid in risk prediction but has some validity and is empirically based (120.20T). When asked about Exhibit 2, Dr Singh agreed that predictive validity is not considered a realistic goal by the developers of the SJP because of the dynamic character of the process of radicalisation to violence (122.40T). She also agreed that the risk characteristics for violent extremists and terrorists differ significantly from those of ordinary violent offenders. Therefore, “tools developed specifically to assess the predictive validity for the population of general violent offenders should not be assumed to apply to violent extremists” (Exhibit 2, p. 260).

27. [101]

    When challenged about her use of the HCR-20 V3, Dr Singh said she had been asked to provide an opinion of risk of general violence as well as violent extremism (122.50T). She was then asked some questions about Exhibit 1. Dr Singh agreed that the “standardised risk assessment tools for general violence had not been validated on … ideologically motivated violent offenders” (Exhibit 2, p. 1 (123.24T)). However, she did not accept that the social demographic variables of violent extremists on the one hand and common violent criminals on the other were necessarily different. She accepted that VERA 2R “is not a silver bullet of prediction” (Exhibit 2, p. 14), although the authors of Exhibit 1 stated that VERA 2R was useful “to assist security and case management decisions for convicted violent extremists”. Dr Singh felt it still provided a framework of utility “where an individual has not committed any violent extremists offences but may have some risk indicators suggesting that they could” (124.23T).

28. [102]

    As I have said, Dr Seidler was cross-examined on the same basis. Dr Seidler said she did not use the TRAP 18 as she did not believe it was appropriate in Mr Cheema’s case (103.24T). She agreed that the VERA 2R had not been “validated” (104.5T). This was because to validate an SPJ tool “you need very large samples statistically”. There was not a sufficiently large cohort of violent extremism offenders (104.29T). Dr Seidler agreed that there were no tools specifically designed to address the s 20(d) question (105.5T). Dr Seidler said that VERA 2R provides “a guide to inform decisions about predicting behaviour” (105.50T). And, it is an “aid” (106.18T). Dr Seidler said that the process of risk assessment had been developed to “reduce people relying on gut feeling, and also relying on factors that weren’t related to the risk” (106.35T). She said that she agreed completely with Dr Eagle’s opinion about the inherent limitations involved with the VERA 2R as set out at paragraphs 9 – 11 of her report (107.50T). She agreed with Dr Eagle that “risk assessment (does) not reliably enable prediction of outcomes, especially for violent extremism” (108.7T). Dr Seidler agreed with each of the passages that Dr Singh had been taken to in Exhibit 1 (101.27T). Dr Seidler agreed with the passages in Exhibit 2 to which she was taken and emphasised that she did not use HCR-20 to predict violent extremism (112.16T). But when asked the following question she gave the answer which immediately follows (112.33T):

29. [103]

    Dr Eagle agreed that she did not use HCR-20 V3 for violent extremism, only for general violent offending. She said it was “completely unreliable in any risk assessment process to say whether say whether someone will or will not go on to do something” (86.14T).

30. [104]

    Dr Eagle introduced the expression structured professional judgment tool into the evidence (87.20T). She explained that VERA 2R and TRAP 18 are SPJs. She said:

31. [105]

    Dr Eagle was shown the article which became Exhibit 1 and was taken to the same passages as the other experts and indicated she agreed with its content. She qualified this slightly indicating that the article was concerned with the VERA 2. The current version is the VERA 2R, which includes revisions “when they felt that it could have more broader application” (sic). When asked about Exhibit 2, Dr Eagle agreed that tools like HCR-20 developed for use with general violent criminals, should not be used for trying to assess whether a person may or may not engage in acts of violent extremism (96.26T). But she pointed that some persons suspected of being at risk of engaging in acts of violent extremism “may also be violent offenders” (96.30T).

32. [106]

    When asked whether it was too early in the cycle of the analysis of VERA 2R and TRAP 18 to say whether they were accurate, Dr Eagle responded (97.15T):

Assessments by other relevant professionals – s 25(3)(b)

1. [107]

   I have already dealt with the opinion of Dr Eagle whose risk assessment report and other opinions are applicable to this consideration. I have found in accordance with their opinions which, in this regard, were essentially unchallenged that the view of the court appointed experts and Dr Eagle is that Mr Cheema suffers from a number of co-morbidities recognised by the standard diagnostic manual (“DSM-5”). In my view, perhaps the most significant of them for present purposes is the anti-social personality disorder to which he remains subject, but which may attenuate somewhat with age.

2. [108]

   In 2001, Dr Christopher Lennings, psychologist, assessed Mr Cheema to be of average intelligence, but probably suffering from a chronic adjustment disorder since adolescence. Dr Lennings opinion was that he was “likely to experience continuing difficulties with adjusting to authority and conventional patterns of living his life for the next few years” (report dated 2 October 2001; Ex MC-1, Tab 107, p. 1042).

3. [109]

   In 2012 Dr Ross Colquhoun, psychologist, treated Mr Cheema for his heroin dependency. He received a history of significant feelings of depression for some time and the results of the psychological tests he administered had Mr Cheema scoring in the extremely severe range for depression and severe range for anxiety (Report 6 December 2012; Ex MC-1, Tab 107, p. 1042).

4. [110]

   Dr Mark Howard, psychologist, examined Mr Cheema and prepared a report for sentencing purposes in relation to property offences in 2014. Mr Cheema gave a history of mainly having social contact amongst people involved in substance abuse. Mr Cheema indicated a willingness to engage in alcohol and other drug rehabilitation (“AOD”). Like others who have examined Mr Cheema over the years, Dr Howard identified anxiety and depressive symptoms, and negative self-appraisal. The results to the psychological tests administered by Dr Howard showed high scores for depression and stress and substance abuse. Dr Howard was of the view that high intensity interventions were necessary (Report 20 January 2014; Ex MC-1, Tab 105, p. 1028).

5. [111]

   Dr Richard Furst, psychiatrist, provided a report on 13 June 2018 in relation to the sentencing proceedings arising out of Mr Cheema’s plea of guilty to the intimidation offending in 2017 involving his mother and sister. I record, in the history of chronic drug use Dr Furst noted Mr Cheema’s claim to have been abstinent in custody since his arrest. Dr Furst did not find any clinical evidence of severe mood disturbance, anxiety or a major mental illness. He did, however, record a history of hospitalisation for various causes including Xanax overdose, agitation and anxiety, and possible drug induced psychosis or delirium following the use of Methylamphetamine. Like others, Dr Furst diagnosed a substance abuse disorder, episodes of Methylamphetamine induced psychosis but also Post Traumatic Stress Disorder (“PTSD”). Dr Furst appeared to be of the view that PTSD accounted for the symptoms of anxiety and depression. Dr Furst considered that Mr Cheema had to be treated with an antidepressant and drug and alcohol counselling to deal with his Substance Abuse Disorder.

6. [112]

   This psychiatric evidence does strongly suggest a long history of, in particular, prohibited drug abuse and engagement with antisocial friends and associates.

Risk Intervention Report – s 25(3)(d)

1. [113]

   A Risk Intervention Report (“RIR”) has been prepared within the Terrorism High Risk Offenders Unit by Stela Ilijevska dated 28 May 2020, Annexure B to the affidavit of Melissa Cork sworn on 29 May 2020. Essentially, Ms Ilijevska was of the opinion that while it will be challenging to manage Mr Cheema in the community, it can be achieved by the imposition of and adherence by Mr Cheema to strict conditions. This assessment is mainly due to Mr Cheema’s poor response to supervision in the past, including a history of further offending while on parole. Ms Ilijevska also emphasises the relationship between Mr Cheema’s drug abuse and his offending.

2. [114]

   The strict suite of conditions proposed to manage Mr Cheema include: face to face weekly contact visits and scheduled and unscheduled home visits and reporting requirements; a schedule of proposed movements coupled with electronic monitoring; accommodation conditions, probably with his mother; place and travel restrictions; screening of education and employment opportunities; supervision of finances; prohibition of the use of drugs other than drugs prescribed to him by a doctor for medical treatment; non-association conditions; weapons prohibition; restrictions on the use of electronic devices; and approval for significant changes to appearance; and ability to direct Mr Cheema’s attendance for necessary medical treatment.

The views of the sentencing court for the index offence – s 25(k)

1. [115]

   Mr Cheema appeared for sentence before Magistrate Schurr in the Liverpool Local Court after entering pleas of guilty to a number of offences, including drive recklessly and fail to stop in police pursuit, drive taken conveyance without the consent of the owner and other driving offences. He also appeared for sentence in relation to a separate tranche of offending, although occurring on the same day, related to an assault of a police officer and a resist arrest after he was taken into custody in relation to the driving offences.

2. [116]

   The salient facts of the offending are essentially that a Mercedes with Queensland registration plates was observed travelling at high speeds by police officers. They ran a check on the registration number and proceeded to follow the vehicle, engaging their warning lights and sirens. The vehicle, driven by Mr Cheema, sped away and a police pursuit was commenced. Police estimated at points during the pursuit the vehicle reached speeds of 80 to 100 kmh in a 60 kmh zone. The vehicle was observed running a red light and crossing over to the wrong side of the road on multiple occasions. Mr Cheema then crashed the car and took flight. He was located a short time later.

3. [117]

   Her Honour found that in light of “the features of suburban, afternoon, peak hour, going through red lights, driving on the wrong side of the road and the collision” placed this offending in the upper end of the range of objective seriousness (Ex MC-1 p. 76).

4. [118]

   As to the assault and resist arrest offending, her Honour noted (Ex MC-1 p. 76):

5. [119]

   As an aggravating factor, her Honour took into account the fact Mr Cheema was on parole at the time of the offending. On his subjective case, she accounted for his early pleas of guilty, the connection of his drug use to the offending and accepted he had some insight into his offending.

6. [120]

   Her Honour imposed a total aggregate sentence of 17 months imprisonment with a non-parole period of 12 months.

Mr Cheema’s criminal history – s 25(j)

1. [121]

   The evidence discloses a number of instances of offending preceding the index offences. For context, the cumulative totality of the evidence before me illustrates that his criminal history is bound up with his history of drug addiction and attendant mental health issues.

2. [122]

   His criminal history dates back to 1997, when he was 14 years old. His offending encompasses assaults, assaults occasioning actual bodily harm, larceny, break and enter, aggravated break and enter, using intimidation and violence to unlawfully influence a person, robbery, and a myriad of other drug, traffic and property offences. I propose to only deal with Mr Cheema’s more serious offending.

3. [123]

   In 2007 Mr Cheema appeared for sentence before his Honour Judge Bennett SC in the District Court following a trial on two indictments for offences of assault police officer, possession of a pistol and a bullet proof vest, discharging said firearm and malicious damage to a motor vehicle. On 20 November 2005, Mr Cheema was involved in a drive by shooting, discharging at least five bullets from a .45 calibre pistol from a car in the direction of a house at Menai at night (Ex MC-1 p. 235). Three bullets hit a vehicle parked in front of the house, one hit a neighbouring home, and another lodged in the house’s staircase. On 29 November Mr Cheema was seen in public brandishing the pistol and wearing the body armour vest (p. 236). Mr Cheema hid the vest and pistol under a nearby house. Finally, subsequent to his arrest on 30 November Mr Cheema raised his fist and directed it towards a police officer. He did not strike the officer (p. 238).

4. [124]

   Mr Cheema was charged, entered a plea of guilty and was sentenced for an aggravated break, enter and steal in company committed in 2013. According to a Statement of Agreed Facts, Mr Cheema, armed with a 30-centimetre knife and at one point a machete, and a co-offender, wielding a sword, broke into an apartment (Ex MC-1 p. 284). The pair rummaged through the apartment, collecting items of value and the registration papers for a Volvo. The items were recovered from a Toyota Yaris, a stolen car in Mr Cheema’s possession (there is no “taking conveyance” with respect to this discrete set of offending on Mr Cheema’s record (Ex MC-1 p. 282)).

5. [125]

   In 2017 Mr Cheema entered a plea of guilty in relation to an offence of intimidate to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Ex MC-1 p. 317). Mr Cheema arrived uninvited to his mother’s home where his sister was hosting a party. He was distressed and angry when he arrived. He repeatedly asked for his belongings. In summary, Mr Cheema told his mother he would hurt her and threatened to slit her throat; “he was frothing at the mouth” (p. 318). Mr Cheema proceeded to pour petrol over the kitchen and threatened to burn the house down. Police arrived at the residence but with the assistance of negotiators and the Police Tactical Operations Unit. He surrendered and was taken to Bankstown-Lidcombe Hospital. Hospital staff required Mr Cheema to be sedated and police exercised their powers under s 22 of the Mental Health Act 2007 (NSW).

Mr Cheema’s compliance with parole and relevant court orders – ss 25(h) and 25(i)

1. [126]

   When imprisoned for the index offences Mr Cheema was classified as A2 maximum security. His inmate profile document records some 18 correctional centre discipline breaches for conduct ranging from drug and phone possession to assaults, threats and intimidation (Ex MC-1 p. 531).

2. [127]

   Parole was breached but not revoked in 2004 for illicit substance use. Parole was revoked on 10 September 2010 for failure to obey a direction and for failing to undertake drug and alcohol testing (Ex MC-1 p. 981). A breach of parole report from 28 July 2010 states he was charged with two drug possession charges, but no drugs were detected through urinalysis when requested (p. 981). His parole was later revoked in September 2010 for failing to obey directions to him from his parole officer to undertake alcohol and drug testing (p. 989).

3. [128]

   Drug use was again reported in 2015. His response to supervision in 2014 was described as borderline; parole was not revoked due to general compliance with his supervision (Ex MC-1 p. 995). His drug use continued in 2016 while on parole. He was admitted to Banks House’s mental health unit after behaving erratically and undressing in traffic (p. 747).

4. [129]

   Whilst on parole in 2018 the defendant said he had used heroin (Ex MC-1 pp. 793, 826). Opiates were found in his system in November of that year (Ex MC-1 p. 802). He was assaulted and reportedly stabbed at Revesby McDonald’s in October 2018 (Ex MC-1 p. 819). Mr Cheema’s mother states that he was taken to Royal Prince Alfred after being up all night, she presumes, on ice (Ex MC-1 p. 834).

5. [130]

   While on parole in 2019 a breach of parole report was issued for continuing drug use. On the 15th of January he was located at night near a stolen vehicle with a knife and a 3-centimetre gash on his leg (Ex MC-1 p. 837). His parole was revoked on 17 January 2019 for failure to follow directions and his parole officer reported concerns that Mr Cheema was a risk to the community (Ex MC-1 p. 843).

6. [131]

   It is also common ground that Mr Cheema breached Johnson J’s ISO. True it is that the Act requires the court to consider any breaches of relevant court orders. So too, it requires the court to consider the likelihood of Mr Cheema complying with the order sought by the State. Nevertheless, as the matter has not been fully argued before me, I propose to place the breach of the ISO to one side in the assessment of Mr Cheema’s risk.

Treatment and rehabilitation programs – s 25(3)(f)

1. [132]

   Between 2009 and 2011, when in custody, Mr Cheema participated in addiction programs and the getting SMART program. He completed a positive lifestyle program and the Drug and Alcohol Addiction Program. He engaged in an anger management course in 2011.

2. [133]

   In 2019, Mr Cheema failed to complete the EQUIPS Foundation and Addiction program. He was withdrawn from the program because of his failure to attend (Ex MC-1 p. 879). At that time, it appears that he was enrolled in EQUIPS Aggression, but there is no mention in his offender program status report of his withdrawing from the program. Before the ISO was made against Mr Cheema, he was undertaking counselling with Ms Jessica Hancock of Odyssey House, remotely. As I have recorded, he was also seeking psychological counselling in the community.

Prescribed Terrorism Intelligence Authority report – s 25(3)(e)

1. [134]

   There was no report falling within this category in evidence, and the State by its Senior Counsel states that no such report has been prepared and provided to wit.

Other options to reduce the likelihood of re-offending and the likelihood that the offender will comply with an Extended Supervision Order – s 25(3)(g) and (h)

1. [135]

   If Mr Cheema is released to his parole on the earliest possible date on 22 May 2022 doubtless it would be open to the New South Wales Parole Authority to impose conditions that would be capable of addressing his general criminogenic deeds under supervision of Community Corrections officers. In his evidence, Mr Cheema stated he benefited from weekly consultations with his psychologist, Amy Cody (57.26T) and the AOD counselling he was receiving with Jessica Hancock from Odyssey House by zoom due to social distancing requirements during the first lockdown (57.35 - .50T). I infer that if released to parole he would be prepared to re-engage with these therapists which, again, may reduce the risk of recidivism in the general sense, especially if AOD counsel appears successful. The difficulty is, as I have already pointed out, that his past compliance with parole has been, to say the least, problematic. And there is no compulsion to maintain a program with private professional service providers like psychologists and AOD counsellors.

2. [136]

   He is also subject to a firearms prohibition order.

3. [137]

   It is the experience of the Court that the supervision provided under an ESO whether under the Act or the Crimes (High Risk Offenders) legislation is closer and much more intensive than even strict parole conditions.

4. [138]

   The question of whether Mr Cheema will comply with the conditions of an ESO is not easily resolved given that he breached the conditions of the ISO originally imposed by Johnson J. There is force in the submissions of Mr Robertson and Dr Lucy that the question is strictly irrelevant given that the State does not seek a continuing detention order. However, it may be, that in accordance with the sixth principle formulated by the Court of Appeal in Naaman (No 2) (at [29]) that a prospect of non-compliance to the point of certainty may be a discretionary factor suggesting an ESO should not be made, assuming s 20(d) is engaged, because it will not reduce the risk. As against this, the breach of the conditions of an ESO is constituted as a serious indictable offence by dint of s 30 of the Act. This is a very significant sanction which ought to promote compliance.

Decision on the s 20(d) condition

1. [139]

   I remind myself (see [50] above), that I am not empowered to make an ESO under s 25 unless I am satisfied to high degree of probability that Mr Cheema poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO. The statutory standard of “a high degree of probability” is more stringent than the usual civil standard of proof of on the balance of probabilities, but not as exacting as the criminal standard of proof of beyond reasonable doubt.

2. [140]

   I acknowledge that notwithstanding his very poor general criminal record, including for crimes of violence, Mr Cheema has never been convicted of a terrorism related offence, let alone a serious terrorism offence. There is no overt or covert evidence that he has ever threatened, or expressed a desire, to engage in specific conduct with the necessary intent that would constitute a serious terrorism offence. To some extent this is beside the point given the primary purpose of the act is ensuring the safety and protection of the community: ss 3(1); 25(2). And for the reasons I have given he is an offender who satisfies the s 20(c)(i) condition of being a convicted New South Wales terrorist offender.

3. [141]

   I have borne in mind the 6 principles from Naamaan (No 2), I have set out above at [52].

4. [142]

   Moreover, I accept the evidence of each of Dr Singh, Dr Seidler and Dr Eagle that I have analysed above. Having said that I also accept the concessions made by each of those experts of the inherent limitations in the structured professional judgment tools available to assess the risk of engaging in terrorist activities or violent extremism by a given individual. Obviously for the reasons rehearsed by the experts and having regard to the arguments advanced by learned counsel for Mr Cheema, the opinions expressed by the experts by reference to their application of VERA 2R in the case of each of them and TRAP 18 in Dr Eagle’s case cannot of themselves be determinative. It does not follow from this that the results yielded by application of those tools are irrelevant, should be put to one side, or afforded little weight.

5. [143]

   As Dr Eagle put it (see [90] above) at [209] of her report of 15 May 2020 both the VERA 2R and the TRAP 18 may be regarded as assessment protocols or investigative templates because they identify risk factors that have been associated with terrorist events and violent extremism historically on the available evidence. It seems to me that these tools are the product of the best professional opinion in the area and for that reason are of some value. This is so even if, as Dr Eagle says, “they are not actuarial tools and do not provide reliable information regarding risk categorisation”.

6. [144]

   From the evidence of each of the experts, mainly as it emerged in the cross-examinations I have summarised above, the main reason why these structured professional judgment tools have not been “validated” is because, perhaps contrary to popular opinion, violent extremism offences have not been sufficiently prevalent to yield a sufficiently large body of empirical data to scientifically establish the premises upon which they proceed. The evidence does not disclose whether this is because frequently terrorism, or violent extremist, offenders do not live to tell the tale.

7. [145]

   It is also the case that VERA 2R, at least before its revision was developed to understand the process of radicalisation in convicted offenders in custody to inform and assess the process of their deradicalization. TRAP 18 was developed to assist law enforcement to identify and manage the escalation of an imminent terror event by a terrorist suspect. That is to say, to de-escalate the imminent materialisation of an identified risk of a terrorism offence.

8. [146]

   In my judgment that these tools represent the best available “science” makes them useful in this context; and the “validated” should not be permitted to become the enemy of the “useful” in the determination of the evaluative fact required by a s 20(d) decision. That is to say, the Court should act upon the best available information even if it does not rise to the level of scientific proof. A high degree of probability does not require scientific certainty.

9. [147]

   In reaching my conclusion, I accept Dr Singh’s opinion that VERA 2R is based upon such empiricism as is available and the current state of expert knowledge concerning extremism. The consideration that it is widely used by experts in the field is also relevant.

10. [148]

    It is of course important to bear in mind that each of the experts accept that the VERA 2R “is not a silver bullet or prediction” (Ex 2, p. 14).

11. [149]

    Each of the experts also applied the HCR-20 V3, mainly because they were asked to do so when qualified to give an opinion. While agreeing that HCR-20 had been developed for use with general violent criminals and is not designed for risk assessment for the occurrence of a violent extremism offence, each expert was of the view that it had some utility, on the common-sense basis, as Dr Eagle put it, that some persons suspected of being at risk of engaging in acts of violent extremism “may also be violent offenders” (96.30T). That is to say, the experts did not entirely agree that those at risk of engaging in violent extremism were in an entirely separate category from the more general class of violent offenders. There may be an intersection. Nor am I satisfied that the class of persons who may decide to commit a terrorist offence is homogenous, especially given the wide range of possible offending covered by the definition of serious terrorism offence by reference to the relevant provisions of the Criminal Code (Cth). Although the structured professional tools are not predictive and so far as VERA 2R is concerned are not validated actuarial templates, I am satisfied that the results obtained by each of Drs Singh, Seidler and Eagle indicate that Mr Cheema poses a low to moderate risk of engaging in violent extremism. In my judgment the risk that he poses is enhanced by the consideration that all experts agree, (subject to the qualification that Dr Eagle did not have the benefit of a clinical assessment) that Mr Cheema poses a high risk of engaging in further violent offending generally.

12. [150]

    However, for the reasons I have explained, these conclusions do not of themselves justify a finding that the s 20(d) condition has been satisfied especially to the statutory high degree of probability. But they may in conjunction with other findings.

13. [151]

    I have no doubt that Mr Cheema has developed an interest in violent extremist ideology as evidenced by his lawfully recorded comments in discussion with his cell mate while viewing the ISIS videos, his Facebook posts, his further viewing of the extremist videos on his telephone after his release to parole and especially his associations with persons known to be advocates of Salafi-jihadist violent extremist ideology. I emphasise that a most significant risk factor in Mr Cheema’s case is the associations he has formed with persons who have a demonstrable commitment to violent extremism of this type. These are the persons discussed at [23]-[49] above.

14. [152]

    I also regard his well-established pre-existing psychiatric issues, including his anti-social personality disorder as an additional risk factor. Although the connection between mental illness and violent extremism is highly complex, as Dr Eagle said, I accept her opinion that mental illness may be a risk factor for a lone actor terrorist.

15. [153]

    None of the experts considered Mr Cheema an imminent risk and they did not regard him as being someone who would be self-motivated to initiate a terrorist act. However, his vulnerability related to his susceptibility to peer influence could make him an attractive instrument of the intention of others. His continued association with persons involved in extremist ideology, in my judgment significantly contributes to this risk.

16. [154]

    I accept Dr Eagle’s opinion that Mr Cheema is vulnerable for engaging in acts of violent extremism as a result of the influence of others associated with such an ideology. And his continued exposure to violent extremist propaganda could increase his susceptibility. His sense of grievance about the treatment of Muslims in the middle east by western powers, the use of illicit substances as a barrier to the establishment of pro-social influences, his familiarity with firearms and other weapons and his anti-authoritarianism, combined may lead him to being identified by associates with an interest in violent extremism as a person who could be recruited to their cause (see [95] above). The opinion of Dr Seidler and Dr Singh is, as I understand it, not in substance different from that of Dr Eagle.

17. [155]

    While, as I have said, there may be no imminent threat of the materialisation of Mr Cheema’s risk of involvement in violent extremism, the current risk is real enough. It may not be high, but the combination of factors persuades me it is of substance. Given the serious consequences for an individual or group of persons if the risk materialises and the protective purpose of the legislation, I am persuaded to the high degree of probability necessary that the risk he presents in this regard is unacceptable.

18. [156]

    In coming to this conclusion, I have not overlooked the evidence of Mr Cheema’s mother and sister. However, I think it can be said that a member of even a moderate family can be radicalised, and quite quickly. Coming from a pro-social family is not a full proof prophylactic against recruitment for, or engagement in, violent extremism. Indeed, the homogenous view of the profile of potential terrorists described in Exhibits 1 and 2 may be taken as suggesting most at risk individuals hail from “good backgrounds”.

19. [157]

    I have not overlooked the “double requirement of intention” imposed by the definition of terrorist act in s 100.1(1) of the Criminal Code of the Commonwealth: Naaman (No 2) at [37]. That is to say, I have borne in mind a relevant act must be done with the intention both of advancing a political, religious or ideological cause and, inter alia, of intimidating the public or a section of the public. Lone actor violent extremism, when it occurs, easily satisfies that dual requirement. Even if the offending conduct were directed at one individual, it is perpetrated for the purpose of advancing the cause and intimidating others who are not the primary victim of the attack.

20. [158]

    I have also borne in mind the decision of the High Court of Australia in Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166. Although that decision is concerned with cognate federal legislation, and more pertinently with the making of continuing detention orders, it does provide guidance on the appraisal of the unacceptability of the risk for the purpose of s 20(d) of the Act. The plurality of Kiefel CJ, Bell, Keane and Steward JJ said (at [46]):

21. [159]

    It is also pertinent to bear in mind the dictum of Gageler J (at [79]):

22. [160]

    Edelman J said (at [192]):

23. [161]

    I repeat the s 20(d) condition has been satisfied.

Should an Extended Supervision Order be made?

1. [162]

   Section 25(1) provides that the Court may determine the application either by making an ESO or by dismissing the application. It is settled that at this discretionary phase of the exercise of the power, while the safety of the community must be the paramount consideration, the right of the citizen to be at liberty must also be brought into consideration: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. That the conditions of an order will necessarily be a very significant constraint on Mr Cheema’s liberty is a consideration telling against exercising the discretion to make the order.

2. [163]

   On the other hand, given the nature of the unacceptable risk which I have formulated, I am of the view that the proper exercise of my discretion requires me to make the orders sought rather than dismiss the application.

Term of the Extended Supervision Order

1. [164]

   Under s 29 an ESO commences when it is made or when the eligible offender’s current custody or supervision expires, whichever is the later. In the present circumstances the order will not commence before 22 May 2022 which is Mr Cheema’s earliest date for release on parole. The maximum period for which an order may be made is one of 3 years from the day on which it commences: s 26(6). An ESO is suspended while the offender subject to it is in lawful custody. By s 26(8) a second or subsequent ESO may be made in respect of the same offender.

2. [165]

   The State seeks an order of 2 years’ duration. In her first report, Dr Singh suggested a period of 12 months, but in her second report, having reviewed additional material, including the material in relation to Mr Cheema’s association, expressed the opinion that a period of 2 years is appropriate.

3. [166]

   Given that the matters I have identified as informing the finding I have made of unacceptable risk are well-established and that Mr Cheema has in the past had difficulty, to put it one way, complying with parole supervision, I have formed the view that it may take a little time for him to benefit from the supervision regime to which he would be subject. I consider a period of 2 years to be appropriate. In coming to this conclusion, I have borne in mind that another, or perhaps secondary, object of the Act is to encourage the offender subject to an ESO to undertake rehabilitation: s 3(2). It is to be hoped that Mr Cheema responds in this way. A period of 2 years will provide a sufficient opportunity for that to be achieved.

Conditions

1. [167]

   Under s 29(1), the Court may direct Mr Cheema to comply with such conditions as it considers appropriate. These include the conditions specified in paragraphs (a) to (t) of s 29(1). Unless the Court orders differently, an ESO must include the conditions specified in s 29(1A)(a) to (r).

2. [168]

   While the Court must be satisfied that each proposed condition is appropriate in terms of the legislation, the proceedings are adversarial, and the Court will be guided by the arguments of the parties. The appropriateness of every condition, if an order was to be made, was not disputed.

3. [169]

   The appropriateness of a particular condition is governed by the nature of the risk of future offending, which the condition seeks to address: Wilde v State of New South Wales [2015] NSWCA 28 at [53] – [54]. The relevant considerations include community protection on the one hand, and the right of the citizen to be at liberty on the other. It has been said that “a balancing exercise is required, in ensuring that the community is protected to the greatest extent possible, without unduly or unfairly restricting the liberty of the defendant”: State of New South Wales v Kay [2018] NSWSC 1235 at [68], Wilson J. Her Honour also said that “the conditions should be the least intrusive conditions available to ensure that the risk posed to the community by the defendant is adequately managed”.

4. [170]

   By Schedule A to the Amended Summons of 28 August 2020, the State proposes 42 conditions, some of which are broken up into sub-paragraphs. I will deal with the disputes concerning the matters in issue in the order in which they were raised.

5. [171]

   In written submissions, counsel for Mr Cheema argued that condition 1(i) was superfluous because he was already subject to a firearms prohibition order. However, the constraints proposed seem more extensive and there is something to be said for the appropriateness of a comprehensive suite of conditions to reduce the risk of ambiguity in Mr Cheema’s understanding of what is required and the enforcement officer’s understanding of his or her authority. The condition may stand.

6. [172]

   Condition 3A requires Mr Cheema to carry at all times a specified approved mobile phone in a condition where he is able to answer a call from his enforcement officer (“EO”), who is an officer of Corrective Services NSW or NSW Police charged with supervising Mr Cheema under the Order. It was argued that in the light of the other conditions including electronic monitoring, this condition was not appropriate. There was a concern expressed that this may be a condition requiring Mr Cheema to carry two phones, a specified approved mobile phone and his own phone (160.15T). I agree the specified approved mobile phone should be the only phone that Mr Cheema is required to carry. Indeed, I would have thought that this was the intent of the proposed condition. To clarify it, an additional paragraph could be added:

7. [173]

   Condition 11 prohibits Mr Cheema from possessing or consuming alcohol without the, presumably, prior approval of the EO. Mr Robinson argued that from the “six or seven thousand pages of evidence relating to the defendant, not once has [he been shown to have] a problem with alcohol”. It was emphasised that breach of a condition carries a maximum penalty of 5 years imprisonment under s 30. One accepts that intoxication in any form may well be a factor which increases the risk of general criminal conduct. However, I accept the argument that Mr Cheema’s substance abuse issue relates to prohibited drugs and in particular Methylamphetamine. I will delete Condition 11.

8. [174]

   It follows that it is unnecessary to impose 1(h) requiring Mr Cheema to submit to drug and alcohol testing. Giving his difficulty with illicit drugs, I am of the view that drug testing is appropriate, but I will delete the words “and alcohol” from Condition 1(h).

9. [175]

   Objection was made to Condition 1(l) prohibiting Mr Cheema from commencing “any job, voluntary work, or educational course” without approval. I am of the view that this condition is appropriate to the risk, especially given the centrality of Mr Cheema’s associations to my formulation of the risk and I would let it stand. I am confident that Mr Cheema’s EO would encourage him to engage in pro-social activities including work, but there may be areas of employment, voluntary work or education which are inappropriate given their content.

10. [176]

    Objection is taken to Condition 4 prohibiting Mr Cheema permitting guests, including overnight guests, to stay at his approved address without prior approval. The expectation of the parties is that the approved address will be his mother’s home. I heard evidence from Ms Hassan and also Ms Cheema about the invasion of the privacy of that home involved in the execution of the search warrant to which I have referred above. Doubtless actions taken under lawful authority may be done in a courteous manner with respect given to the rights of other occupants of the premises. It is not necessary that lawful authority be executed in a high-handed or rough way. Condition 4 should be read as a prohibition on a guest of the defendant only and not applying to other family members. In this form it will assist in encouraging Mr Cheema away from inappropriate associates. I would add to the end of Condition 4 the following words:

11. [177]

    Objection was taken to Condition 10 prohibiting the defendant entering into “any lease, mortgage or hire agreement (eg storage facilities without prior approval)”. It was argued that the expression employed was incredibly wide. Given Mr Cheema’s past history it seems unlikely that Mr Cheema would be in a position to raise a mortgage. He has no known property capable of supporting a debt. On the other hand, he may be inveigled by others to enter into transactions of the type the subject of Condition 10 for their purposes. I am of the view that the condition should be amended so it refers to “residential tenancy agreement, home loan mortgage or hire of a storage facility” without approval.

12. [178]

    Condition 12 requires Mr Cheema to report the start of a sexual relationship to his EO. There was debate about the meaning of the expression “a sexual relationship” with the emphasis on “relationship”. I understand that the formation of a relationship is capable of bringing a person within a bad influence. At the same time, the conditions require not only electronic monitoring, geographical restrictions and the provision of a schedule of movements. I am not persuaded that Condition 12 is appropriate to the risk and I would delete it. For instance, the schedule of movements would need to specify where he intended to go and for what purpose. Condition 15, even as I would amend it, confers a wide power to monitor and indeed control associations. Condition 12 is unnecessary and therefore inappropriate.

13. [179]

    Condition 13 prohibits Mr Cheema’s entry to any licensed premises except restaurants and cafes without approval. Given what I have said about the absence of a history of a problem with alcohol, I would delete condition 13.

14. [180]

    An objection was taken to Condition 14, rather in particular to the expression “is likely to, regularly associate”. Upon reflection, I am of the view that the condition can stand as is. I regard it as sufficiently workable.

15. [181]

    Condition 15 prohibits communication, association and affiliations of certain types. The opening expression to Condition 15 should be amended to read “The defendant must not knowingly”. Condition 15(b) should end with the phrase “illegal drugs” toward the end of the second line and the balance should be deleted.

16. [182]

    There is an objection to Condition 15(c) about contact “with any person held in custody” without prior approval. I regard the condition as appropriate to the risk given the centrality of Mr Cheema’s associations to the risk he poses.

17. [183]

    Conditions 19 and 20 limit Mr Cheema’s involvement with motor vehicles without the prior approval of his EO. Given the index offending and the potential relevance of mobility to the materialisation of a risk of a serious terrorism offence, I regard Conditions 19 and 20 as appropriate, notwithstanding some initial doubts.

18. [184]

    Objection was taken to Condition 22(a) prohibiting, inter alia, the possession of extremist material. It was submitted the expression was too wide and it should be qualified by the adjective “violent”. However, I am satisfied that the condition is appropriate and should stand as is.

19. [185]

    Objection was taken to Conditions 39 and 40 which require Mr Cheema to take prescribed medication and to notify his EO if he ceases to take it. Given his long history of mental illness and its potential relevance to the materialisation of the risk, I am of the view that these conditions are reasonable and appropriate. Obviously, compliance with prescribed medical treatment is central to the maintenance of good mental health and therefore Mr Cheema’s rehabilitation.

20. [186]

    Objection was also taken to Condition 41 requiring the defendant to permit the sharing of medical and the like information and with his EO. I accept that this constitutes a very significant infringement of his privacy at least so far as the requirement for the sharing of information with his EO is concerned. But given that a central purpose of the imposition of appropriate conditions is the management of the risk I have formulated, information disclosed to, for example, healthcare practitioners, may provide an early warning of incipient radicalisation or other circumstance relevant to the materialisation of the risk. Notwithstanding the obvious concern, I am of the view that the condition proposed is appropriate.

21. [187]

    In the orders which I will pronounce, I will require the parties to bring in Short Minutes of Order including a further Amended Schedule A incorporating the changes that I have directed.

Orders

1. [188]

   For these reasons my orders are:

   1. (1)

      An order pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) that the defendant be subject to an Extended Supervision Order for a period of 2 years from today or when the defendant’s current custody expires, whichever the later.

   2. (2)

      An order pursuant to s 29(1) of the said Act, directing the defendant to comply with the conditions set out in Schedule A to the Amended Summons filed on 28 August 2020 as further amended by these reasons for the period of the Extended Supervision Order.

   3. (3)

      Direct the plaintiff to bring in a further amended Schedule A in accordance with these reasons within 7 days by lodging them with my Chambers electronically including in soft form with copies to be provided to the defendant’s legal representatives.