State of New South Wales v Mustapha (Final)

1. [1]

   The plaintiff seeks a further extended supervision order (ESO) be imposed on the defendant pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). The defendant has been subject to supervision under the Act, or been in custody, since his release from prison in December 2021. He believes in violent extremism. While he has committed a number of offences, including violent offences, he has never been convicted of a serious terrorism offence. His risk of doing so is difficult to predict. The primary question that arises on this application is whether that risk is unacceptable.

Procedural history

1. [2]

   By summons filed on 16 May 2025, the plaintiff seeks by way of final relief an order pursuant to ss 20, 25(1)(a) and 26(6) of the Act that the defendant be subject to an ESO for a period of three years from the date of the order. The plaintiff seeks a further order pursuant to s 29(1) of the Act directing the defendant to comply with the conditions set out in the Schedule to the summons for the period of the ESO. The making of the order is opposed by the defendant. The background to the making of the application is set out below.

2. [3]

   On 7 August 2018, following events at Parramatta Police Station that day, the defendant was charged with the offences of assaulting a law enforcement officer (not police) and inflicting actual bodily harm; damaging property; two counts of intimidating a police officer in the execution of their duty; and three counts of resisting an officer in execution of their duty (which the plaintiff describes as “the index offences”).

3. [4]

   On 14 December 2018, following his pleas of guilty in the Local Court, the defendant was sentenced to an aggregate term of imprisonment of 3 years and 4 months, commencing 8 August 2018, with a non-parole period of 2 years and 1 month. The non-parole period expired on 7 September 2020 and the full term expired on 7 December 2021. The defendant was not released to parole.

4. [5]

   On 7 September 2021, the plaintiff commenced proceedings in this Court seeking orders under the Act in respect of the defendant. On 14 February 2022, following the imposition of three interim detention orders, her Honour N Adams J imposed an ESO for a period of 3 years from that date in respect of the defendant. The ESO was due to expire at the conclusion of 13 February 2025.

5. [6]

   On 27 July 2023, while subject to his ESO, the defendant was arrested and charged with a number of offences committed the previous day. The defendant pleaded guilty to the offences of assault occasioning actual bodily harm; armed with intent to commit an indictable offence; threatening a person to stop them from providing information to the police; and failing to comply with the ESO. On 18 October 2023, the defendant was sentenced in the Local Court to 12 months imprisonment, commencing 27 July 2023, with a non-parole period of 6 months. The non-parole period expired on 26 January 2024 and the full term expired on 26 July 2024. In the period the defendant was in custody for these offences, his ESO was suspended.

6. [7]

   During the currency of the ESO, as extended, the plaintiff applied for a further ESO. On 14 August 2025, Wright J made interim orders under the Act that the defendant be subject to an interim supervision order (ISO) for a period of 28 days, commencing 15 August 2025, and directing that he comply with certain conditions: State of New South Wales v Mustapha (Preliminary) [2025] NSWSC 926. Those orders were made together with orders appointing two qualified psychiatrists or registered psychologists (or some combination of these) to conduct separate examinations of the defendant and to furnish reports to the Court, and directing the defendant to attend those examinations. Ancillary relief restricting access to the Court’s file, which was not opposed by the defendant, was also granted.

7. [8]

   On 11 September 2025, McNaughton J, by consent, made an order that the defendant be subject to an ISO for a period of 28 days commencing 12 September 2025. That ISO was due to expire on 9 October 2025. On 7 October 2025, Yehia J, by consent, made an order that the defendant be subject to an ISO for a period of 28 days commencing 9 October 2025. That ISO was due to expire on 5 November 2025.

8. [9]

   On 4 November 2025, at the conclusion of the hearing of this matter and on reserving my decision, I made a further ISO for a period of 10 days, which is due to expire at the end of 14 November 2025. The maximum period by which I could extend the defendant’s supervision was 3 months from the expiry of his ESO: see s 28(7) of the Act. On reflection, it is arguable that the maximum extension was up to and including 13 November 2025. This is discussed further below.

The statutory scheme

1. [10]

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

2. [11]

   ESOs are dealt with in Part 2 of the Act. An application may be brought by the State of New South Wales as provided for by Division 2.3 of the Act. The requirements for bringing an application overlap to a significant extent with the preconditions to making an ESO as discussed below.

3. [12]

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

4. [13]

   The application must be made within the last 12 months of an offender’s custody or supervision, and must be supported by documentation addressing the matters in s 25(3), including a report assessing the likelihood of the offender committing a serious terrorism offence: s 23(2) and (3). These requirements are met in this case.

5. [14]

   Section 20 of the Act sets out the requirements for the exercise of power by this Court to make an ESO:

6. [15]

   The Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence: s 21.

7. [16]

   It is plain from the terms of s 20 that the exercise of the power to make an ESO is discretionary. If the preconditions for the making of an ESO are established it will be necessary to consider if, in the exercise of my discretion, an order should be made.

8. [17]

   There is no issue that the application has been made in accordance with Part 2 of the Act, satisfying s 20(b).

9. [18]

   With respect to s 20(c), the plaintiff relies on the defendant’s status as a convicted NSW terrorism activity offender within the meaning of s 20(c)(iii). A convicted terrorist activity offender is defined in s 10 as follows:

10. [19]

    It was not in contest that the defendant has displayed images or symbols and has made threats of violence within s 10(1)(c) as read with the extended definition in s 10(1A). I am, as a result, satisfied that the defendant is a “convicted NSW terrorism activity offender”. Section 20(c) has been established.

11. [20]

    This leads to a preliminary question as to whether s 20(a) is satisfied, and, relatedly, the jurisdiction of the Court to make an ESO.

12. [21]

    There is a question as to whether I have jurisdiction to make the order sought. The issue was not raised at the hearing. After the hearing, the Court advised the parties of the potential issue and requested assistance. Each party filed a short submission. Both parties accept that I have jurisdiction, though on different bases. There is reason to doubt both positions but not the ultimate conclusion. The issue arises in the context of the validity of the ISO made by Wright J. It is accepted by the parties that, if the ESO made by N Adams J expired before Wright J made his order, then Wright J did not have jurisdiction to make the ISO. On 14 August 2025, Wright J ordered that the defendant be subject to an ISO “commencing from the expiration of the defendant’s current [ESO] on 15 August 2025 for a period of 28 days”.

13. [22]

    At the time the ESO was imposed by N Adams J it was due to expire at the conclusion of 13 February 2025. As discussed above, however, the defendant served a non-parole period of 6 months commencing 27 July 2023 and expiring 26 January 2024. The ESO was, as a result, suspended for the “period” during which the defendant was in lawful custody: s 26(6), (7). The length of that “period” is, however, in issue between the parties.

14. [23]

    Section 26 of the Act provides, relevantly:

15. [24]

    Section 5 provides:

16. [25]

    The plaintiff submits the effect of s 26(7) is that the ESO was suspended for the “actual period of time during which the defendant was in custody”, being the number of days, not months. The plaintiff calculates that the ESO was suspended for 184 days and, as a result, the defendant’s ESO was extended until 15 August 2025. Accordingly, the plaintiff contends that Wright J had jurisdiction to make the ISO and this Court has jurisdiction to make a further ESO prior to the expiry of the current ISO.

17. [26]

    The defendant disputes the plaintiff’s assertion that the “period” of suspension should be calculated by reference to days, rather than months. The defendant describes the number of days as an “incident of the operation of the sentencing order imposed, and not the period for which he was in lawful custody”. The defendant emphasises that he was ordered to serve a non-parole period of 6 months. The defendant says that “month” is defined in the dictionary to the Interpretation Act 1987 (NSW) to mean “a calendar month”. A “calendar month” is defined to mean:

18. [27]

    The defendant submits that there is nothing in sentencing law, nor the Act, which suggests this definition does not apply. Consequently, the defendant submits that the ESO was extended for a period of 6 months and came to an end on 13 August 2025.

19. [28]

    The defendant nonetheless concedes that I have jurisdiction to make the ESO. It is the defendant’s position that the requirements concerning the timing of the application brought by the plaintiff do not, of themselves, preclude the Court from making an ESO under the Act. The defendant contends that the wording of s 20 has the effect that the jurisdiction of the Court to make an ESO will be met if he was under the supervision of an ESO, and within the last 12 months of supervision, at the time the application was filed. Section 20 relevantly provides (emphasis added):

20. [29]

    The words “(or was in custody or under supervision at the time the original application for the order was filed)” were inserted in s 20(a) following the enactment of the Justice Legislation Amendment Act (No 2) 2018 (NSW). The explanatory note accompanying the amendment to the Act described it as providing that an ESO “can be made in respect of an eligible offender who was in custody or under supervision at the time the application for the order was filed, but has since ceased to be in custody or under supervision.” It is not clear, however, that that objective was achieved due to the requirement in s 20 that the ESO be imposed in respect of an “eligible offender”, together with the definition of an ESO in s 4 being an “order for the supervision of an eligible offender …”. Section 7 of the Act defines an “eligible offender” as a person under continuous detention or supervision:

21. [30]

    How the words inserted into s 20(1)(a) can operate to give effect to the intention of the legislative amendment where an offender is no longer in custody or under supervision and thus is not, by definition, an “eligible offender”, is not clear.

22. [31]

    In the event, the matter was not fully argued and both parties accept that I have the power to make an ESO.

23. [32]

    I am in any event satisfied, albeit for different reasons, that I do have the power to make the order sought. The Supreme Court is a superior court of record (see s 22 of the Supreme Court Act 1970 (NSW)) and its decisions are valid unless and until they are set aside on appeal, even if they are made in excess of jurisdiction. As Rich J said in Cameron v Cole (1944) 68 CLR 571 at 590; [1944] HCA 5 (Latham CJ agreeing):

24. [33]

    See also Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at [20] (Gleeson CJ), State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and, more recently, State of Queensland v Mr Stradford (a Pseudonym) [2025] HCA 3; (2025) 99 ALJR 396. Thus, the order made by Wright J, even if made without jurisdiction, remains in force with the result that the defendant remains an eligible offender and I have power to make the order.

25. [34]

    Separately, the defendant submits that while I have power to make the order sought, given that (on the defendant’s construction) Wright J did not have jurisdiction to make the ISO, the Court ought revoke the existing ISO pursuant to s 31 of the Act.

26. [35]

    Section 31 provides a power to vary or revoke an existing order. While there is no express limitation on that power, it will most commonly be exercised where there has been some change in circumstances since the original order was made. It may be doubted that the power would extend to revoke an order on the grounds that it was not validly made. Certainly, I am not prepared to use the power to, in effect, rule that an order made by another judge of this Court (and thus made at the same level of the judicial hierarchy) was made without jurisdiction. There are more appropriate remedies if this is the outcome sought.

27. [36]

    No other issue arises as to whether the application has been properly brought, or whether the statutory preconditions to making an ESO have otherwise been satisfied. Consequently I may make an ESO subject to satisfaction of the unacceptable risk test in s 20(d).

28. [37]

    The real contest in the present matter concerns s 20(d). Am I “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order”. There are a number of components to this test. At the centre of the test, however, is the question of the risk of the defendant committing “a serious terrorism offence”.

29. [38]

    The determination to be made for the purposes of s 20 must be made in accordance with s 24 of the Act. I am required to either make the order or dismiss the application: s 24(1). In making the determination, “the safety of the community must be the paramount consideration”. I am required to consider the various matters set out in s 24(3) and put to one side any intention on the part of the defendant to leave New South Wales.

30. [39]

    The term “serious terrorism offence” is defined in s 4 of the Act as an offence contrary to Part 5.3 of the Criminal Code (Cth) for which the maximum penalty is 7 or more years of imprisonment. Part 5.3 of the Criminal Code is headed “Terrorism” and contains a number of such offences in Division 101 (“Terrorism”), Division 102 (“Terrorist Organisations”) and Division 103 (“Financing Terrorism”). Those offences generally rely on a (potential or actual) “terrorist act”. There are some offences that do not pick up the definition of terrorist act, in particular those which relate to “terrorist organisations” in Subdivision B of Division 102 where the terrorist organisation is one which is specified by the regulations, rather than one falling within the general part of the definition, being an “organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act”. The plaintiff did not rely on any risk with respect to an offence relating to a particular prescribed organisation. Consequently, the definition of a “terrorist act” is central to this application.

31. [40]

    A “terrorist act” is defined in s 100.1 as:

32. [41]

    The offences in Division 101-103 of Part 5.3 deal with:

    1. (1)

       Offences related to terrorist acts, including engaging in a terrorist act (s 101.1), providing or receiving training connected with terrorist acts (s 101.2), possessing things connected with terrorist acts (s 101.4), collecting or making documents likely to facilitate terrorist acts (s 101.5), and acts done in preparation for, or planning, terrorist acts (s 101.6).

    2. (2)

       Offences related to terrorist organisations, including membership, recruiting, training, collecting or receiving funds, providing support and associating with a terrorist organisation (ss 102.2-8).

    3. (3)

       Offences related to financing terrorism and financing a terrorist, including by intentionally providing, making available or collecting funds and being reckless as to whether the funds will be used to facilitate or engage in a terrorist act (ss 103.1-2).

33. [42]

    A helpful exposition of the test in s 20(d) was provided in State of New South Wales v Naaman (No 2) [2018] NSWCA 328; (2018) 276 A Crim R 30 (Naaman (No 2)) at [29]. Despite that guidance, an issue arose on the application. The defendant submitted that for a threat to form the basis of an offence relying on the definition in s 100.1, the threat must result in one of the consequences in s 100.1(2).

34. [43]

    The defendant’s argument draws attention to the fact that in the definition of “terrorist act”, paragraph (a) refers to “the action”, while paragraphs (b) and (c) refer to “the action … or the threat”. The defendant submitted that the “action”, which may be a threat of action, must satisfy s 100.1(2). While that reading is understandable, I do not accept it is the correct reading of the provision.

35. [44]

    The word “action” where it appears in s 100.1(1)(a) does not appear in isolation. It appears under the chapeau “terrorist act means an action or threat of action where …”. Thus, where s 100.1(2) requires the “action” to have a particular quality, where a threat is concerned, it is the action the subject of the threat that must have that quality. Admittedly, this requires, in the context of a threat, for s 100.1(2) to be read as if the action, if it occurred, would do one of those things. This does not overly strain the text. Conversely, to read the provision as the defendant contends would give a very limited role to threatened actions. The defendant submitted that there was still scope for threated actions on his interpretation. The type of threat that would fall within the section, as postulated by the defendant, would be a threat such as holding a knife to someone standing on a cliff edge leading to them falling off. The holding of the knife in that situation is, however, likely to itself be an action which causes serious harm: see Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.

36. [45]

    The argument is also contrary to Naaman (No 2). While this aspect did not form part of the dispositive reasoning, not only would I hesitate to depart from what was said, but it accords with my own view. In Naaman (No 2) the Court noted (at [33]) that s 100.1(1)(a) did not “squarely [pick] up both action and threat of action”. Their Honours then observed (at [34]) that “[a]lthough par (a) does not refer to ‘threat of action’, it defines the parameters of ‘action’, whether actual or threatened”. Their Honours further observed, consistently with what I have said above, that such a construction “allows the application of subss (2) and (3) in every case” while the alternative would limit the application of subss (2) and (3).

37. [46]

    The above conclusion does not, however, mean that there is no distinction to be made between actions and threats for the purposes of the test in s 20(d). While the plaintiff’s submissions at times lacked clarity, I understood the plaintiff to accept that the relative seriousness of any “serious terrorism offence” the defendant might commit, a matter necessarily including the consequences of such an offence, will be relevant in determining whether the risk is unacceptable. In this context, a risk that the defendant might commit a serious terrorism offence by making a threat will, generally speaking, be less concerning than a risk that the defendant will commit an offence that in fact has one of the consequences set out in s 100.1(2). Consistently with this, the Court in Naaman (No 2) observed (at [29](4)) that “it will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct”.

38. [47]

    I thus proceed to apply the test in the manner explained in Naaman (No 2), particularly at [29].

The evidence

1. [48]

   Tendered before me was a joint statement of agreed facts filed 6 August 2025 and a joint supplementary statement of agreed facts filed 31 October 2025.

2. [49]

   Dr Anna Farrar and Dr Katie Seidler furnished reports to the Court in accordance with the orders made by Wright J on 14 August 2025. At the hearing, both experts gave concurrent evidence and were cross-examined.

3. [50]

   The plaintiff relies on the affidavits of Aleksandra Jez sworn 15 May 2025, 27 June 2025, 4 August 2025 and 17 October 2025, the affidavits of Jonathan Hamilton-Foster sworn 22 April 2025 and 10 October 2025, the affidavit of Katrina Czerkies affirmed 5 June 2025 and the affidavit of Heather Jackson sworn 10 June 2025, together with the associated annexures and exhibits. The material tendered by the plaintiff includes, most relevantly: the reports of Drs Farrar and Seidler; the risk assessment report (RAR) of Ms Ahu Kocak dated 30 April 2025, which the plaintiff relied on pursuant to s 23(3)(b) of the Act; the RAR of Dr Tamara Sweller dated 8 April 2025, which the plaintiff did not rely on pursuant to s 23(3)(b) but which was accepted as being a report relevant to s 25(3)(b) of the Act; and the subject matter expert reports of Dr Rodger Shanahan.

4. [51]

   The defendant relies on the affidavit of Joseph Harding affirmed 28 July 2025, the affidavits of Marie Iskander affirmed 28 July 2025, 28 October 2025 and again on 28 October 2025, and the affidavit of Elizabeth Tsitsos affirmed 24 October 2025, together with the associated annexures and exhibits. The material tendered by the defendant includes, most relevantly, the subject matter expert report of Professor Mehmet Ӧzalp dated 27 October 2025.

5. [52]

   In total, six lever arch folders of material were tendered. The regrettable length of these reasons reflects that quantity of material, the significant contest between the parties and the limited time in which to prepare the judgment. This last factor recalls the observation commonly, but it seems wrongly, attributed to Mark Twain, that “If I had more time, I would have written a shorter letter”. Apparently Blaise Pascal is more likely to be the source.

Factual background

1. [53]

   The following is summarised from the joint statement of agreed facts and the joint supplementary statement of agreed facts.

2. [54]

   The defendant is a 38-year-old man born in Sydney. He was raised by his aunt and uncle, whom he understood to be his biological parents until the age of 14. He has one half-sister who lives in Lebanon. The defendant attended primary school and high school until year 8 or 9. He recounts his academic functioning as poor, with significant challenges in comprehension, attention, hyperactivity, restlessness and language. On leaving school, he became employed in plumbing and cement rendering, and later worked as a courier, but was unable to maintain long-term employment.

3. [55]

   The defendant said that while he was growing up, he travelled regularly to Lebanon with his family. His last trip to Lebanon was in 2014, prior to his passport being confiscated. In 2015, the defendant travelled to Türkiye, where he was imprisoned by Türkish authorities for approximately four weeks on suspicion of violating the border into Syria. The defendant was interviewed by Australian Federal Police upon his return. He was not charged with any offence but his passport was confiscated. He told police that he had travelled to Türkiye for humanitarian purposes to assist with the influx of Syrian refugees.

4. [56]

   Other than a two-year marriage at the age of 21, the defendant has not had any significant relationships and is presently single. The defendant reported feeling depressed after his divorce and was treated with antidepressant medication for three months, after which he self-discontinued the medication. He had a subsequent period of increased drug and alcohol use, including using cocaine, cannabis, and abusing prescription medications, including Tramadol, Valium and Xanax. He has attributed his increasing substance use to his psychological pain, confusion, and escalating paranoia. He has also reported experimenting with amphetamines, crystal methamphetamines, “acid” and ecstasy.

5. [57]

   The defendant has reported experiences of trauma and racism during his life. These were summarised in the agreed facts as follows:

6. [58]

   The defendant was recently assessed as meeting the criteria for Autism Spectrum Disorder (ASD) Level 1 (requiring support) with accompanying intellectual impairment. In her report to the Court, Dr Farrar likewise opined that the defendant meets the criteria for ASD, together with Antisocial Personality Disorder, Generalised Anxiety Disorder, Substance Use Disorders (alcohol, cannabis, cocaine, amphetamines, buprenorphine, benzodiazepines, Tramadol and steroids) in remission, with features of Borderline Personality Disorder.

7. [59]

   Dr Sweller reported that the defendant’s ASD diagnosis manifests through various behaviours and difficulties including: [1]

8. [60]

   Dr Farrar considered that the defendant’s presentation and history are inconsistent with diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Psychotic Disorder. This was contrary to the opinion expressed by Ms Kocak in her RAR that the defendant presents with unspecified ADHD and unspecified Schizophrenia Spectrum and Other Psychotic Disorder. Ms Kocak described the defendant as presenting with symptoms of “significant paranoia”, which he sometimes describes as “wigging out”, including pre-occupation with particular concepts such as the “Jinn”, suspicions of “black magic” or “evil eye” attacks and seeking Ruqyah (spiritual cleansing). In this regard, Dr Seidler considered the defendant has struggled with paranoid ideation at times, with concerns noted that such ideation extends to a delusional degree, although he has always denied any symptoms of psychosis.

9. [61]

   With respect to his cognitive functioning, Dr Farrar formed the view that the defendant does not have an intellectual disability, while Dr Sweller observed that there has been inconsistent reporting of the results of cognitive functioning testing, with the results being reported as both “borderline to low average range” and “low average to average range”. Dr Sweller noted the defendant’s verbal skills had been measured as “very low” with the result that he requires support when managing verbal tasks or when provided with verbal instructions.

10. [62]

    As observed above, the defendant has never committed a terrorist offence.

11. [63]

    The defendant’s criminal history comprises traffic offences, drug offences, resist/assault police type offences and assaults. In 2007, the defendant was charged with one count of assault officer in execution of duty, which was dismissed without conviction by the Local Court. In 2010, the defendant was convicted of assault occasioning actual bodily harm for punching a security guard at a bar. He was sentenced to a two-year good behaviour bond. Between 2012 and 2018, the defendant was convicted of possess (or attempting to possess) a restricted prescribed substance, possess equipment for administering prohibited drugs, driving with a suspended licence and two counts of possess prohibited drug.

12. [64]

    On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm. He attended the victim’s home late on that evening and spoke to the victim outside. When the victim turned to return to his residence, the defendant, without warning, struck him to the left side of the face from behind, knocking him to his hands and knees. The defendant then kicked the victim in the head, knocking him backwards and causing his head to hit the concrete. The defendant was arrested on 6 April 2018 and released to bail. In the course of the arrest, police seized an iPhone belonging to the defendant. Police later undertook a Cellebrite extraction of the phone and took photographs of it.

13. [65]

    On 7 August 2018, whilst on bail in relation to the above offence, the defendant was arrested for breaching his bail conditions and was conveyed to Parramatta Police Station where he committed the index offences. The conduct the subject of the index offences is summarised in the agreed facts as follows:

14. [66]

    As discussed above, the defendant pleaded guilty in the Local Court to the index offences. He was sentenced to an aggregate term of imprisonment of 3 years and 4 months with a non-parole period of 2 years and 1 month. In sentencing the defendant, Magistrate Still remarked that the offences were “serious”, though some of the offences were far worse than others. His Honour expressed guarded views about the defendant’s expression of remorse and stressed the need for psychological treatment. His Honour accepted that the defendant was “sorry for what he has done” and that the relative insignificance of the injury occasioned was a mitigating factor.

15. [67]

    While the defendant has been subject to orders under the Act, he has been convicted of the following further offences, as set out in the agreed facts:

16. [68]

    In agreed facts, the parties highlighted the following as relevant to an assessment of the defendant’s risk: [2]

    1. (1)

       Material located on the defendant’s phones and hard drive. As discussed above, police seized the defendant’s iPhone on his arrest on 6 April 2018 and later undertook a Cellebrite extraction, and took photographs of, the iPhone. On 7 August 2018, police seized the defendant’s Nokia phone and later undertook a Cellebrite extraction of the phone. Police also seized a Toshiba hard drive from the defendant’s home on 10 August 2018, which was later subject to a digital preview examination.

    2. (2)

       On 22 July 2019, the defendant wrote a letter to the judge presiding over his then ongoing criminal case in respect of the reckless grievous bodily harm offence, a copy of which went to the Governor of Parklea Correctional Centre. The letter included the following references:

    3. (3)

       In September 2019, Corrective Services photographed the defendant’s body. He had tattoos which included the word “Jehad” and an AK-47 machine gun.

    4. (4)

       On 24 October 2019, the defendant was designated a National Security Interest inmate.

    5. (5)

       On 9 March 2020, the defendant’s cell was searched. The defendant became verbally aggressive about the manner in which his religious books were handled, and then became physically aggressive in the course of being restrained after failing to comply with directions. The defendant made statements to a Muslim searching officer, including that “you’ve got to choose your side, you chose your side, you can’t be Muslim and do that”. When the defendant was restrained by Correctives Services officers, he said: “I’m going to fuck your mum you fucken dog”; “you traitor cunt”; “you call yourself a Muslim you’re a fucken murtad” (apparently an apostate). The defendant made violent threats, including “I’m going to put holes in you”; “I’m going to fucken kill you” and “I am going to cut your throats and rape your mothers”. During the search, graffiti on the cell wall was identified, including a picture of what appeared to be a machine gun, with the word “Klashiknove” (sic) written underneath and the abbreviation “NSI” with the words “National Security Interest” written in small letters underneath.

    6. (6)

       On 24 November 2022, police attended the defendant’s residence and recorded an interaction with him on body worn video. During the interaction, the defendant made various comments in relation to the attack of the Charlie Hebdo magazine in Paris, expressed religious views about Muslims who give their allegiance to anything other than Allah, and said he would “smash” someone if they insulted the Prophet. With respect to his compliance on the ESO, he said he was doing his “best” and further that:

    7. (7)

       On 3 August 2023, following his arrest, police executed a search warrant at the defendant’s address. A mobile phone belonging to the defendant was seized, along with what was described as an “orange box cutter/Stanley knife”.

17. [69]

    These materials are discussed in greater detail below in the context of the reports of Dr Shanahan.

Unacceptable risk

1. [70]

   As is apparent, the matter has a history involving the making of a number of orders under the Act. In the course of making those orders, numerous reports have been prepared by suitably qualified experts. Those reports were authored having regard to primary materials made available to the authors, prior expert reports where appropriate, and in some cases interviews conducted with the defendant. Of the material tendered, the reports of Drs Seidler and Farrar are most relevant. Each of those experts had regard to both their interviews with the defendant, and documentary material in terms of both primary material and expert reports. Additionally, the RAR of Dr Sweller was the subject of some focus, the defendant placing particular reliance on it. I also took the view that the RAR of Ms Kocak and the subject matter expert reports of Dr Shanahan and Professor Ӧzalp were particularly relevant. The statute of course requires me to have regard to a range of material. While I have had regard to the matters in s 25(3) of the Act, my approach has been informed by the extent to which I was taken to materials by the parties, noting the adversarial context in which the determination is made and the limited time available to me to make my decision.

2. [71]

   On 7 October 2025, Dr Seidler, a clinical and forensic psychologist, furnished a report to the Court. [5] She assessed the defendant for the purposes of the report on 18 September 2025. Dr Seidler had previously assessed the defendant as a court appointed expert in relation to the first application for an ESO. Her report of 21 January 2022 was also tendered. [6]

3. [72]

   With respect to the defendant’s compliance, Dr Seidler noted that the defendant had reoffended in a violent manner while under the ESO, and had been subject to a further period of imprisonment, extending the ESO by 6 months. However, Dr Seidler described the defendant’s reoffending behaviour as having “nothing to do with terrorism or violent extremism risk” but as “reflective of impulsivity, affective dysregulation, distorted thinking, poor consequential reasoning, egocentricity and a lack of empathy, all of which may also be relevant to acts of violent extremism”. [7] Other than this offence, she described the defendant as otherwise being compliant with the conditions of his ESO, cooperative with authorities and seemingly anxious about possible breaches of the ESO.

4. [73]

   In terms of the effect of the ESO, Dr Seidler noted that it had not had any tangible impact on addressing or reducing the risk factors relevant to the defendant’s future risk of violent extremism, which was likely to continue to be the case with respect to any future ESOs imposed. She described the primary benefit of the ESO as being access to ongoing intervention and professional support, which was limited by the defendant’s refusal to engage with psychologists. Dr Seidler noted the ESO had some “risk increasing influence” for the defendant in the sense that it had enhanced his grievance and further cemented his alienation from the mainstream community. [8] As a result, Dr Seidler considered there to be a question as to the “future utility” of an ESO, and how long the defendant could be reasonably subject to an ESO, “especially if it only continues to serve his sense of grievance, anger and resentment”. [9]

5. [74]

   Dr Seidler noted the defendant has likewise expressed resentment at his inability to contact “like minded” people deemed non-associations for him as a result of their national security interest. As a result, without the restrictions of the ESO, Dr Seidler opined that it “seems likely” that the defendant would “connect with others who hold extremist views and who support violence, in addition to possibly accessing such content online”. [10] To this end, Dr Seidler concluded that the ESO has had a containing or restricting influence by limiting the defendant’s access to peers and online media which may influence and expose him to extremist ideology.

6. [75]

   Dr Seidler did not re-apply risk assessment tools in her report. Having previously assessed the defendant’s risk using the Violence Risk Scale (VRS) and Violent Extremism Risk Assessment – Version 2 Revised (VERA-2R) tools in 2022, Dr Seidler took the view that the defendant’s risk remained unchanged. [11]

7. [76]

   Dr Seidler had, in 2022, reported that the defendant was, overall, “considered to pose a moderate risk of engaging in a future act of violent extremism” and that it was “possible that this may approach the threshold to be considered a serious terrorism offence”. Read in context, I understand this to mean that such an act may reach the particular threshold required. Even so, Dr Seidler’s opinion reads as a bare possibility. When asked to assess the defendant’s level of risk, Dr Seidler again used the term “moderate” but in the context of a “moderate risk of engaging in a future act of violent extremism”, [12] not the risk of a serious terrorism offence. She did postulate that if the defendant were to disengage he “would be vulnerable to the influence of others who hold extremist ideologies and who encourage [the defendant] to become involved in an organised act of terrorist violence as a means of gaining acceptance, belonging, meaning and identity. She said that such an act is likely to be directed at someone in a position of authority or a symbolism of authority that he considers oppressive, unjust and/or racist”. [13]

8. [77]

   In Dr Seidler’s report for the purpose of these proceedings, she noted that the defendant had been subject to intensive case management while on the ESO, the conditions of which she described as “arduous and restrictive”. [14] The defendant had made some gains while subject to the ESO, however he was yet to establish a prosocial routine, although he blamed the conditions placed on him by the ESO for this. Dr Seidler discussed with the defendant his engagement in psychological services while on the ESO, the defendant confirming he had engaged in the Proactive Assessment and Intervention Service (PRAXIS) program. The evidence is the defendant has engaged in some 70 sessions. He disengaged on 28 July 2025 and told Dr Seidler he would never consult with a psychologist through the program again. This was the result of his belief that the confidentiality of the sessions was breached by Ms Kocak providing a RAR to the plaintiff when she had previously engaged with the defendant in the PRAXIS program.

9. [78]

   Dr Seidler pointed to a range of risk factors, including the defendant’s “violent ideology, history of violence, expressions of support for violent extremism, alienation from national identity, desire for associations with others who have an extremist ideology, persistent grievance and a past history of accessing extremist content online”. [15] With respect to his past behaviour, Dr Seidler noted the defendant had never formally aligned with a terrorist organisation; never been involved in planning or preparing for an act of violent extremism; never identified a particular target for a terrorist offence; and never expressed an intention to engage in such an act. However, the defendant had indicated that he would likely engage in an act of violence in support of his religious ideology if someone disrespected the Prophet or threatened his religion.

10. [79]

    Ultimately, Dr Seidler concluded that the defendant presented “a risk of future violent extremism”, [16] which was less than that of general violent offending. She opined: [17]

11. [80]

    Again, I understand the use of the expression “could approach” the level of a serious terrorism offence to mean could meet that level. In understanding the defendant’s risk, Dr Seidler explained that the best predictor of future behaviour is a person’s recent past behaviour, a significant feature of this case being that the defendant has not been convicted of a serious terrorism offence.

12. [81]

    Dr Seidler indicated the defendant had little to no insight into relapse prevention or strategies to avoid future offending and had little commitment to avoiding such conduct, other than wanting to avoid reincarceration and a further ESO. She also indicated he had “few protective factors” which were evident, [18] noting his family had exerted little controlling influence over his past behaviour.

13. [82]

    Dr Seidler considered that if the Court was minded to impose a further ESO, it would be done with a view to containment and control rather than for the purposes of rehabilitation or change. In that case, a longer ESO would be most appropriate, given the likelihood that a further ESO would need to be considered at the expiry of any ESO imposed, regardless of its period. However, with respect to the potential negative impact of an ESO, Dr Seidler reported: [19]

14. [83]

    On 8 October 2025, Dr Farrar, a forensic psychiatrist, furnished a report to the Court. She assessed the defendant for the purposes of the report on 11 September 2025. [20]

15. [84]

    Dr Farrar administered the VERA-2R tool to assess the defendant’s risk of violent extremism. Dr Farrar assessed the defendant as having a “high loading” of risk indicators relating to his Beliefs, Attitudes and Ideology, a “moderate loading” of risk factors associated with Social Context or Intention and a “moderate loading” of risk factors associated with History, Action and Capacity. Dr Farrar summarised the defendant’s risk factors and risk indicators as follows: [21]

16. [85]

    Dr Farrar in scoring the VERA-2R category “Seeker, user or developer of violent extremism materials” had regard to evidence that the defendant had, between 2022 and 2024 (whilst on the ESO) “searched material related to organised crime, Islamic and Koran guidance, Gaza and Rashid Rida (an Islamic extremist)”. [22] His interest in Rashid Rida also contributed to his rating with respect to his “Susceptibility to influence, control, indoctrination”. At the hearing, it was accepted that Rashid Rida is not an Islamic extremist. It is not clear whether Dr Farrar’s assessment was impacted or at least significantly impacted by her having been misled in this regard. The evidence is that the defendant has been compliant with the ESO. He certainly searched for extremist material prior to the ESO being imposed. It is likely he will do so again if not subject to a further order.

17. [86]

    Dr Farrar considered the defendant had limited protective or risk mitigating indicators, which included his previous participation in programs against violent extremism, support from government agencies (whilst under the ESO) and possible support from family members for non-violence. She also considered that his risk of violent extremism may be mitigated or reduced by his expressed intention not to commit a terrorism or violent offence, his prosocial intentions (to find employment and a wife), his lack of previous convictions for terrorism offences, deficits in his functioning associated with his ASD and Anxiety Disorder which reduce his social and public interactions, and his predominant compliance with his supervision.

18. [87]

    Ultimately, Dr Farrar assessed the defendant’s risk of committing a “terrorism offence/violent extremism” as “moderate”. [23] On its face, this assessment does not distinguish between a serious terrorism offence and engagement in violent extremism. Later in her report, Dr Farrar indicated that the defendant “does pose a risk of committing a serious terrorism offence”, [24] by reference to the definition with which she was provided, if not subject to an ESO. Notably, however, the level of this risk was not indicated.

19. [88]

    Dr Farrar opined that the defendant’s most likely risk scenario would involve him engaging in a terrorist act (either an action or threat) to coerce a government or intimidate the public: [25]

20. [89]

    Dr Farrar explained the defendant’s risk scenario on the basis of the following: [26]

21. [90]

    Dr Farrar considered the following risk scenarios also apply to the defendant: [27]

22. [91]

    Dr Farrar did not provide an opinion on the appropriate length of an ESO but noted that most of the defendant’s psychiatric conditions would be considered “chronic” and that treatment, including offending-specific treatment programs, may or may not be effective in reducing his risk. She considered that while the conditions sought under the ESO “are necessary to manage” the defendant’s risk, they could “conversely increase his risk by increasing his frustration and anger”. [28]

23. [92]

    Dr Sweller provided a RAR dated 8 April 2025 in anticipation of the present application. Dr Sweller was subsequently contacted to review some supplementary material but was unavailable. This led to the plaintiff engaging Ms Kocak to obtain a RAR.

24. [93]

    Dr Sweller’s assessment does not support the making of an ESO. Unsurprisingly, her opinion was relied on by the defendant. She was called to give evidence in accordance with the defendant’s request and leave was given to the plaintiff to cross-examine her.

25. [94]

    Dr Sweller observed with respect to the defendant’s beliefs: [29]

26. [95]

    Dr Sweller stated that, at “times when he is emotionally dysregulated, [the defendant] appears to speak at length about the justification for the use of violence within Islam”. [30] She went on to note, however, that during PRAXIS sessions, when he had presented in this manner, he had “been assessed to be at no imminent risk of perpetrating violence”. A consistent theme of Dr Sweller’s evidence was that while the defendant had made “verbally aggressive statements that include language and content relevant to the terrorism context”, such “behaviour consistently occurs at times when he is emotionally dysregulated and experiences a lack of control”. Dr Sweller observed that on the evidence of the Offender Integrated Management System (OIMS) case notes and PRAXIS progress notes, the defendant presented in a “calmer more regulated manner overall” subsequent to his release in January 2024. She noted the defendant’s report that his ASD diagnosis had assisted him in understanding his own behaviour.

27. [96]

    Dr Sweller observed that the defendant’s use of violence in the past has been reactive rather than instrumental. She observed that conduct the defendant had engaged in which could be assessed as “falling within the terrorism context” appeared “to be dependent on his emotional state and capacity to manage emotions at the time”. [31] Dr Sweller’s opinion in this regard is consistent with the opinion of Ms Filipa Abreu, who prepared the RAR in the previous proceedings, that future violence, should it occur, was likely to be the result of a lack of emotional regulation and poor interpersonal functioning rather than an intended act of violent extremism, politically motivated violence, or terrorism activity.

28. [97]

    Dr Sweller opined that the defendant’s primary risk relates to his use of ordinary violence as opposed to terrorism-related violence. With respect to various risk scenarios, she first considered the risk of him engaging in behaviour that would be considered an act of terrorism. She noted his past statements “could appear concerning” with respect to the potential that he might engage in terrorism related behaviour, but said these statements needed to be understood in the context of his situation at the time the statements were made and in the context of his ASD diagnosis. In this regard, she observed that when emotionally regulated, the defendant had expressed an understanding of the differing belief systems of others and, in particular, that while he might not accept or support another person’s beliefs, he would not engage in harmful behaviour towards that person on this basis. She observed that when statements supportive of violence based on intolerance have been made by the defendant, they have been made at the time of dysregulation. She described this as “‘venting’ as opposed to expressing his intent to act”. At such times, according to Dr Sweller, the defendant’s intent would not be to advance a political, religious or ideological cause, even if he might subsequently rely on a religious context to provide a “post-hoc justification for his behaviour”. [32] Dr Sweller opined that threats in this context would “in all likelihood … not reflect realistic or specific plans/intent” but would rather reflect his emotional dysregulation in the context of his particular deficits. [33] Dr Sweller opined that the defendant’s risk of actual violence, as opposed to making threats of violence, would manifest in a scenario involving “emotionally reactive violence as opposed to instrumental violence with the aim of furthering an ideological cause”. [34]

29. [98]

    While not expressly stated, Dr Sweller appeared to distinguish between the defendant’s statements which on their face supported a cause or ideology, and an intention to actually advance that ideology. As I would understand her report and her evidence, when the defendant has in the past made statements supportive of religious extremism, one could not infer any intention to advance the cause in the context of his functioning, including his ASD and immediate dysregulation. In essence, it is likely the defendant’s statements simply express his belief as to what should occur in response to a particular trigger.

30. [99]

    A second risk category considered by Dr Sweller was the risk of the defendant preaching and thereby inciting others to act. Dr Sweller was of the view that this risk scenario was more likely to eventuate than the defendant directly engaging in a serious terrorism offence. She was, however, of the opinion that the defendant’s preaching would not “appear to have intent to incite others to engage in terrorism related offending”. While she acknowledged that his behaviour might be interpreted as inciting others, as I understand her evidence, his intention would be limited to sharing his belief system. [35] Sharing a belief in religiously justified violence falls short of inciting an act of terrorism.

31. [100]

    Dr Sweller also considered the potential effect of a further ESO, expressing the view that there were both potential positive and negative outcomes. [36] Potential counterproductive effects referred to by Dr Sweller included the prospect an ESO might promote the defendant’s sense of grievance and result in increased hostility towards authority. Significantly, she noted that the potential positive outcomes of an ESO were not directly related to risk management for a serious terrorism offence, but to the defendant’s ongoing vulnerabilities relating to general criminality. [37]

32. [101]

    Subsequent to providing her report, Dr Sweller was provided with additional material in October 2025 comprising the affidavit of Mr Hamilton-Foster sworn 22 April 2025, the report of Dr Shanahan dated 23 April 2025, updating OIMS notes and additional documents provided by police. [38] Dr Sweller confirmed at the hearing that she had not read the 2025 report of Dr Seidler nor the report of Dr Farrar (noting her report references the earlier report of Dr Seidler). She also confirmed that when she initially prepared her report, she had not had access to OIMS notes postdating 3 April 2025. Nor, it should be observed, had she had the benefit of interviewing the defendant, he having refused to engage with her. The additional material she had considered did not cause her to change any opinions expressed in her report. In cross-examination by the plaintiff, Dr Sweller accepted that despite her view that past threats made by the defendant in a dysregulated state were not accompanied by an associated intent, the defendant was not at these times incapable of forming such an intent and he could, consequently, make threats expressing a genuine intention in the future. [39] Dr Sweller qualified this, stating, “I just think that’s much less likely, given everything that I know from the materials”. [40]

33. [102]

    Dr Sweller accepted that the defendant had, on numerous occasions, said that he would, based on his ideology, respond violently in various situations. Dr Sweller observed that these statements, given the hypothetical nature of the questions, reflected his ideology but not necessarily his intended behaviour. [41] Dr Sweller acknowledged that there was, nonetheless, a possibility he would act on his ideology. Her answer in this regard was more in the nature of not being able to rule out the possibility, it being a possible future event, with her opining that it was “not a likely outcome”. [42]

34. [103]

    Dr Sweller accepted that the defendant had, prior to August 2018, engaged in various activities such as posting material online and making threats in the context of his arrest, demonstrative of his support for Islamic State. Dr Sweller said she gave less weight to those matters due to the passage of time and the defendant’s engagement with psychological services in the meantime. Those services, it should be noted, target disengagement not deradicalisation. Dr Sweller confirmed that research had shown disengagement to be more effective than deradicalisation. She also observed that in terms of his actual behaviour, the defendant engages appropriately with people in authority and there is nothing to suggest he would act on his ideology. While the issue was not raised with Dr Sweller, this last answer might be qualified if it is accepted that the purpose of the defendant’s travel to Türkiye was an attempt to cross into Syria in order to engage with Islamic State. I will return to this issue in due course.

35. [104]

    Dr Sweller confirmed that while, as part of his ideology, the defendant supports the use of violence in certain situations such as when the Prophet is insulted, when asked as to what he would actually do in those situations, he did not confirm that he would in fact act, on at least one occasion stating he did not know what he would do.

36. [105]

    Dr Sweller addressed the risk of the defendant raising funds for a terrorist organisation but said she did not believe he had the organisational capacity to do so. She said simply managing his own finances was a challenge for him. [43] She was additionally of the view that his communication skills and other deficits were such that he did not have the capacity to intentionally influence others. [44]

37. [106]

    Ultimately, Dr Sweller accepted that there were certain scenarios in which the defendant might be more likely to commit a serious terrorism offence, were he not subject to an ESO, but that there was no way of assessing that risk. That conclusion was expressed in the context of Dr Sweller’s opinion that there was no valid or reliable assessment tool to do so. In this regard, she noted that while she had used the VERA-2R tool as a prompt, she did not attempt to use it to rate risk based on the literature regarding its limitations in assessing risk.

38. [107]

    Dr Sweller went on to state that her assessment assumed the defendant would have support in the community, including something called the “engagement and support program”, but that, having not interviewed him, she did not know whether he would in fact agree to engage in that, or presumably other programs. She was of the opinion that the defendant may be more willing to engage in community based services rather than services offered under an ESO as a result of his hostility towards government and authority. She could not express an opinion as to his likelihood of engaging in private psychology sessions.

39. [108]

    Ms Kocak provided a RAR dated 30 April 2025 in anticipation of the present application. The defendant did not consent to participate in an interview for the purposes of the report. As a result, Ms Kocak relied on the documentary records provided to her.

40. [109]

    Like Drs Seidler and Farrar, Ms Kocak described the defendant as being “primarily compliant with his conditions”, [45] noting he “appears to exhibit a conscious effort to abide by and understand” his ESO. [46] In this regard, Ms Kocak noted the defendant’s convictions arising from the 27 July 2023 charges while subject to the ESO. She described the defendant attributing the offences to him “wigging out on everyone”, [47] his anger issues, the “cunt [inferentially, the victim] … being lazy”, [48] his frustration with his ESO conditions, and a build-up of emotions. Ms Kocak also noted the three offences incurred by the defendant in custody while he served his non-parole period, namely, entering other cells, assaulting and fighting.

41. [110]

    With respect to the defendant’s progress while subject to the ESO, Ms Kocak described the defendant as attempting to adhere to strict interpretations of Islam in making decisions around employment, socialisation and engagement with services under the ESO, including by refusing to obtain a driver’s licence or to take psychiatric medication. She described difficulty with social interactions and the defendant’s reliance on public transport as limiting his ability to secure employment. On the other hand, she reported the defendant had been “consistently engaged” with his case worker and PRAXIS, [49] often using the service to vent frustrations or distress, which she considered assisted with the defendant’s de-escalation process. Ms Kocak noted that the defendant had, however, disengaged from the service in 2023, and that he had expressed an intention to disengage if he were to receive a further ESO. She also described his responsivity to the service as limited as a result of his cognitive rigidity and limited insight, with he at least on one occasion referring to PRAXIS as “the enemy”. [50]

42. [111]

    Like Drs Seidler, Farrar and Sweller, Ms Kocak opined that the ESO served to “aggravate [the defendant]’s perception of religious discrimination, unfair or unjust treatment and government oppression”. [51] In a similar vein, it was Ms Kocak’s view that fear of non-compliance with the conditions of his ESO appeared to cause the defendant “anger outbursts and distress”. [52]

43. [112]

    Ms Kocak applied the Violence Risk Appraisal Guide – Revised (VRAG-R) tool to assess the defendant’s risk of future ordinary violence. She found that he fell into “Risk Bin 8 (out of nine)”, [53] with 60 percent of offenders in that risk “bin” reoffending violently within five years. She also administered the Terrorist Radicalization Assessment Protocol (TRAP-18) to assess the defendant’s risk of “lone actor” terrorist attacks or targeted extremist violence. He was assessed as having two out of eight dynamic indicators, being “fixation” and “identification”, and seven out of eight “distal” indicators: “personal grievance and moral outrage; framed by an ideology; failure to affiliate with an extremist or other group; thwarting of occupational goals; mental disorder and criminal violence”. [54] Ms Kocack concluded that the results of the TRAP-18 indicated the defendant requires active case management and monitoring.

44. [113]

    Ms Kocak also administered the VERA-2R. She assessed the defendant as having a “high loading” of risk indicators relating to his Beliefs, Attitudes and Ideology, a “low-moderate loading” of risk factors associated with Social Context and Intention and a “moderate loading” of risk factors associated with History, Action and Capacity. She considered that the defendant demonstrated few robust protective factors against future violence, noting those that were present “appear conditional, situational, and vulnerable to deterioration under emotional stress of perceived abandonment, persecution or injustice”. [55]

45. [114]

    Ms Kocak described the defendant’s “largely open and transparent” attitudes and views towards violent extremism and religiously motivated violence, primarily his support of violent Jihad or the justification of the use of violence within Islam. As I have said, the defendant’s views in this respect are uncontroversial on this application.

46. [115]

    Ms Kocak described the defendant’s neurodivergent traits as particularly evident in his absorption into religious doctrines and extremist materials and considered that his pattern of hyper-focussed interests has led to “intense preoccupation” with certain Salafist interpretations of Islam, which he “rigidly repeats without nuanced comprehension”. [56] In this regard, Ms Kocak said: [57]

47. [116]

    Ms Kocak emphasised that the defendant’s primary risk lies in “impulsive interpersonal violence” which is “triggered by perceived threats, paranoia, personal grievances, or emotional dysregulation” rather than “ideologically orchestrated aggression”. [58] She noted a “consistent lack of evidence of operational planning, target identification, or strategic mobilisation toward an actual act of terrorism”. [59] She distinguished between the defendant’s views, which she noted “may never change” and his risk of committing an act of terrorism, violent extremism or other unlawful behaviour, on the basis of the necessary intention to act. [60]

48. [117]

    Ms Kocak ultimately concluded, having regard to the defendant’s risk formulation, that he does pose a risk of committing a serious terrorism offence if not subject to an ESO and/or continuing detention order. She opined that the defendant’s “risk relates predominantly to emotionally reactive, grievance-driven, ideologically justified violence rather than premeditated, sophisticated terrorist acts”, [61] but that his vulnerabilities nonetheless “create specific risks” that could amount to the commission of a serious terrorism offence. [62]

49. [118]

    With respect to the defendant’s risk scenarios, Ms Kocak considered that if the defendant were to engage in violence, it would most likely be interpersonal violence or aggression to resolve disagreements about his values, rather than a large-scale attack. She also considered that he had the potential to move abroad to support or join a political or Jihadist movement, but that this was much less likely in the absence of a passport. She described four possible risk scenarios, should the defendant commit a serious terrorism offence, and their respective likelihoods as follows: [63]

    1. (1)

       The defendant’s likelihood of committing an offence contrary to s 101.1 (engaging in a terrorist act) is moderate to high. There is a risk a personal confrontation or event will provoke him to commit a violent, retaliatory or reactive act, framed ideologically as a defence of his faith and advancement of his perceived religious obligation and principles.

    2. (2)

       The defendant’s likelihood of committing an offence contrary to s 101.4 (possessing things connected with terrorist acts) is moderate to high. Given his history and vulnerability to preoccupation with fixed interests, there is a risk that the defendant will, without supervision, seek to possess or share materials intended to glorify, inspire or prepare for Jihadist violence.

    3. (3)

       The defendant’s likelihood of committing an offence contrary to s 102.3 (being a member of a terrorist organisation) is moderate. With ongoing isolation and emotional instability, there is a risk the defendant could connect with extremist peers via online networks, or present with sustained ideological allegiance to Islamic State through online expressions without formal recruitment.

    4. (4)

       The defendant’s likelihood of committing an offence contrary to s 102.7 (providing support to a terrorist organisation) is moderate. The defendant may express support for Islamic State objectives or verbally encourage actions that bolster Islamic State’s ideological aims even without formal affiliation, including urging others to commit violence through verbal encouragement or ideological rhetoric.

50. [119]

    Dr Shanahan, a subject matter expert, prepared three reports in respect of this matter dated 27 May 2021, 12 March 2025 and 23 April 2025. Dr Shanahan was asked to provide his opinion on a volume of material in respect of the defendant, including statements made by him.

51. [120]

    In his initial report, which had been prepared for the previous proceedings under the Act, Dr Shanahan identified the following content contained in photographs of the defendant’s iPhone, which had been seized in 2018 following the commission of the index offences: [64]

52. [121]

    With respect to the Cellebrite extraction of the Nokia phone, Dr Shanahan identified two audio files as Islamic State nasheeds which were produced by Islamic State’s al-Ajnad media group. Dr Shanahan opined that both the nasheeds were “closely associated with the violent, Salafist-Jihadist ideology espoused by Islamic State”, with one talking about “beheading the enemy”. [65] Likewise, Dr Shanahan opined that some of the social media material which had been captured from Facebook and Instagram accounts apparently operated by the defendant in 2018, was associated with violent extremism.

53. [122]

    Dr Shanahan opined that the threat made by the defendant to behead a police officer in the course of the index offending was “consistent with the type of act that Islamic State (or ISIS) called on its followers to undertake”. [66] Dr Shanahan also considered the letter written by the defendant to a judge as “consistent with the ideological view that there is a war on Islam and its followers, which is a fundamental argument espoused by jihadist groups such as al-Qa’ida and Islamic State”. [67]

54. [123]

    In relation to the defendant’s tattoos, Dr Shanahan said that that the AK-47 weapon is a mainstay of jihadist groups around the world, and opined that “jehad/jihad in this context could reasonably be understood to mean a religious obligation to undertake armed action against designated enemies of Islam”. [68]

55. [124]

    In his report dated 12 March 2025 prepared for the present application, Dr Shanahan opined that the statements made by the defendant, as recorded in OIMS Case Notes and PRAXIS case notes post-dating 14 February 2022, demonstrated he had a view of violent jihad within Islam which was consistent with the interpretation held by radical Islamist terrorist groups such as Islamic State and Al-Qa’ida. Likewise, his rejection of man-made laws, his statements in relation to non-Muslims, and his statements in relation to homosexuality were consistent with the stances advocated by Islamic State and Al-Qa’ida. In his report dated 23 April 2025, Dr Shanahan identified the statements made by the defendant on 24 November 2022 as conveying support for terrorist acts or violent extremism, and indicated that they were consistent with views expressed by Al-Qa’ida and Islamic State in relation to government and man-made laws.

56. [125]

    Dr Shanahan’s reports are consistent with other evidence as to the defendant’s beliefs about violent extremism and religiously motivated violence but, in my view, do not go further to resolve the question of the defendant’s risk of actually committing a serious terrorism offence.

57. [126]

    Professor Ӧzalp, an Islamic scholar and theologian, prepared an expert report in respect of this matter dated 27 October 2025 which was relied on by the defence. In it, he explained key Islamic concepts as relevant to the present matter.

58. [127]

    Professor Ӧzalp described Salafism as a Sunni reform movement that calls on Muslims to emulate the “pious predecessors”, [69] who are normally understood to be the first three generations of Muslims (the immediate followers “Companions” of the Prophet Muhammad, and the two generations of scholars who followed the Companions). [70] Salafi Muslims selectively follow the views of later Islamic scholars such as Ibn Taymiyya and Muhammad Abdul-Wahhab. Professor Ӧzalp described Abdul-Wahhab as a scholar known for justifying violence towards people who do not accept his purest interpretations of Islam, in that he would excommunicate them and say it was lawful to shed their blood. The followers of Abdul-Wahhab, the Wahhabis, were declared outside the fold of Islam by mainstream Muslim scholars and as a result began to refer to themselves as Salafis.

59. [128]

    Professor Ӧzalp said that the Arabic word “jihad” means to “struggle” or “strive” and applies to any effort exerted by anyone. Jihad is a broad concept; it does not mean “holy war” and cannot properly be restricted to military campaigns or acts of terrorism. [71] Jihad has three distinct components: inner struggle, social and religious activism, and military struggle.

60. [129]

    Professor Ӧzalp said that, according to mainstream interpretations of the Qur’an, violence is justified in two respects: maintaining order and enforcing the law, and taking part in warfare. He said that jihadist Salafists represent an extremist offshoot of the broader Salafi movement and are often influenced by or aligned with jihadist groups like Al-Qa’ida, Islamic State and similar organisations that frame violent struggle as a religious duty incumbent on all Muslims. These movements prioritise armed struggle as the central expression of Islam and broaden the concept of “takfir” (excommunication) [72] to justify rebellion against Muslim rulers and violence against Muslim civilians.

Consideration

1. [130]

   Dr Seidler said of the defendant: [73]

2. [131]

   The defendant is entitled to hold these views. He is, of course, not entitled to act on these views. Relevantly for present purposes, he is not entitled to act on his views in a manner that would amount to a serious terrorism offence. What makes this case difficult is assessing risk largely based on the defendant’s belief system. That he holds such beliefs is worrying. But what is the evidence as to the risk he will act on his beliefs? It was common ground that, despite the defendant having maintained his belief system for some years, he has not committed a serious terrorism offence. I have not been provided with any statistical material as to the relationship between holding extremist views and acting on them. That programs dealing with violent extremism focus on disengagement (it being more effective than deradicalisation), [74] tends to confirm that simply holding extremist beliefs does not, of itself, mean a person will act on those beliefs.

3. [132]

   Nonetheless, Dr Seidler confirmed in her evidence the salience of risk factors for violent extremism for assessing the risk of the commission of a serious terrorism offence. Further, both Drs Seidler and Farrar confirmed that their assessments of the defendant’s risk were not based solely on his extremist beliefs, but were determined with regard to a range of factors, including the various considerations indicated by the VERA-2R. The limitations of the VERA-2R were acknowledged. Dr Sweller was clear (and unchallenged) in her evidence that there is no “validated, reliable risk assessment tool within the terrorism space”. Nonetheless, Drs Seidler and Farrar maintained that the VERA-2R was capable of being used to assist in the assessment of risk.

4. [133]

   There is at least some evidence of the defendant expressing his beliefs, and indeed going further and stating his intention to act based on those beliefs, but then not following through with that action. The defendant told a police officer on 10 July 2025 that he would not be legally represented at the ESO hearing as his beliefs clash with those of his lawyers. He said he would not want his lawyer to stand or call the judge “your Honour” because he does not accept the appointment of judges or the government. Despite this, he was represented at the hearing (and needless to say his lawyers acted decorously). Significantly, perhaps, the defendant’s rejection of legal representation was referred to by Dr Farrar in giving the defendant a “high score” in relation to the rejection of democratic society and values component of the VERA-2R risk assessment tool. That the defendant did not follow through on his beliefs on one occasion does not, of course, mean that he will not do so on another. It does confirm that it is not inevitable.

5. [134]

   The weight that can be given to the fact that the defendant has not committed a serious terrorism offence is limited by the reality that the defendant has either been in custody or under supervision since 2018. It is difficult to know what this means with respect to the defendant’s risk if he were not subject to an ESO.

6. [135]

   In considering the defendant’s risk if he were not subject to supervision, it is relevant to have regard to any insights or progress he has made while under the ESO. Since being on the ESO, the defendant has engaged in some 70 PRAXIS sessions. The extent to which these have assisted him, if at all, remain unclear. Ms Abreu in her RAR indicated that at the point of disengagement the defendant “was beginning to show growing awareness of his own thinking patterns, emotions and how his behaviour affects others” and “had started to develop some skills in perspective-taking, recognising emotions, and considering viewpoints that differed from his own”. [75] Ms Abreu observed that such gains as had been made “remain underdeveloped and inconsistent”. [76]

7. [136]

   While Dr Seidler accepted that the defendant had made progress as a result of his engagement with psychological services, in her view this reduced his risk only with respect to his general offending. Dr Seidler’s view was that there was no treatment program or intervention that would significantly reduce the defendant’s risk of future violent extremism. Despite this view, it does seem that significant in his progress is the defendant’s ASD diagnosis which has given him an improved understanding of himself.

8. [137]

   Both Drs Seidler and Farrar were taken to the “covenant” apparently made by the defendant with his solicitor not to offend. Dr Farrar regarded this as a significant protective factor in that it would preclude the commission of a serious terrorism offence, albeit other factors may lead to him offending. On the other hand, Dr Seidler was unable to comment on the religious significance of the covenant, nor its strength with respect to a commitment not to act with violence. It seems the “covenant” may have some, perhaps significant, role in reducing the defendant’s risk. It is, however, difficult to assess that impact.

9. [138]

   With respect to assessing risk, Dr Seidler referred on a number of occasions to past behaviour being the best predictor of future behaviour. The consistent view of the experts is that the defendant’s past behaviour indicates a risk of the defendant engaging in general – that is, not terrorism – related violence. The risk with which I am concerned, however, is associated with a serious terrorism offence. The fact that the defendant has not previously committed a serious terrorism offence must be given significant weight, given the relevance of past behaviour as a predictive factor. It is also, in this context, helpful to consider the terrorism component to the defendant’s past offending and other behaviour.

10. [139]

    In relation to the August 2018 offences, the defendant made threats to law enforcement officers that are, on their face, troubling. Dr Shanahan described at least one of these threats as “consistent with the type of act that Islamic State (or ISIS) called on its followers to undertake”. The consistent evidence given by Drs Sweller, Seidler and Farrar, however, is that the defendant was, at the time of the offences, likely dysregulated, and that the threat was reflective of his reactive emotional state. It is unsurprising that, in a dysregulated state, he would be vociferous in his expression of his ideology. On the evidence, however, I could not find that the threat evinced any actual intention to carry out the threatened action. Dr Seidler made clear, and Dr Farrar agreed, that while the defendant might believe that violence is justified in certain circumstances, such as when the Prophet is insulted, “we have no demonstration that he’s prepared to do that”. [77]

11. [140]

    The letter to the judge (also received by the Governor of the Correctional Centre and intelligence officers) while undoubtedly more considered than the threats made to the law enforcement officers, was not suggested to be a serious terrorism offence. The letter was headed “we disbelieve in your laws – a letter to the judge”. [78] While the letter makes the defendant’s ideology clear, there is nothing in the letter indicating the defendant intended to himself act on that ideology. Dr Farrar gave evidence that given the defendant’s difficulty with abstract thinking, what he says may be more in the nature of a “rigid mantra” [79] rather than a reflection of his actual belief, raising a question as to whether he would act on his word.

12. [141]

    A more difficult question is raised by the defendant’s travel to Türkiye in 2015. There is no issue the defendant travelled to Türkiye and, within Türkiye, to a town on the border of Syria called Gaziantep. Gaziantep was, according to Dr Shanahan, “one of the hubs in Southern Turkey from which Jihadist fighters were able to be smuggled into Syria to join groups including Islamic State”: see State of New South Wales v Mustapha [2022] NSWSC 87; (2022) 295 A Crim R 296 at [164]. The defendant has at no stage accepted that he travelled to the location for that purpose. His explanation for his presence in the particular location was that he had travelled there to engage in humanitarian work. The defendant submitted that, given the nature of the allegation, I would apply the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) before drawing any adverse inference against the defendant in relation to this evidence. The standard of proof to be applied is satisfaction to a high degree of probability with respect to the ultimate question of whether the defendant poses the relevant unacceptable risk. I do not regard it as appropriate to apply a standard of proof to individual facts any more than I would do so in a criminal case based on circumstantial evidence where the particular fact cannot be described as “an indispensable basis for an inference of guilt”: Shepherd v The Queen (1990) 170 CLR 573 at 576; [1990] HCA 56 (Mason CJ); see also Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13.

13. [142]

    The evidence of the defendant’s travel to Türkiye forms part of a mosaic of evidence relied on by the plaintiff. It cannot be viewed in isolation from the evidence of the defendant’s beliefs. The defendant had certainly adopted a fundamentalist ideology by the time of the searches conducted in 2018. Closer in time to the defendant’s return from Türkiye on 21 September 2015 is evidence that he was seen in a car with Amin Elmir on 28 November 2015. Mr Elmir was later convicted of an offence against s 119.4(1) of the Criminal Code committed between about 23 April and 19 June 2016. The offence involved Mr Elmir committing acts in Türkiye in preparation for incursion into Syria for the purpose of engaging in hostile activities. While the offence of which Mr Elmir was convicted is not a terrorism offence it is the location of his offending and its connection with the defendant’s ideology which is presently significant. While little more is known of the connection between the defendant and Mr Elmir, their presence together in a vehicle does not speak of a chance encounter. Given the proximity of the meeting to the defendant’s return to Australia and Mr Elmir’s subsequent travel, an inference is available the meeting was related to that later travel. It is difficult, however, to know what light this sheds on any assistance the defendant may have provided Mr Elmir or the nature of the defendant’s prior travel. Ultimately, the most that can be said is that the evidence in relation to the defendant’s travel may cast some doubt on the assumption that the defendant has not in the past acted on his beliefs.

14. [143]

    Even if it were to be accepted that the defendant, motivated by fundamentalist ideology, travelled to Türkiye intending to cross into Syria, his particular objective in doing so remains unknown. While it may have been with the intention of committing a terrorist act or other offence within Division 101 of the Criminal Code, a conclusion cannot be reached in this regard. His travel is unlikely to have been related to a financing offence within Division 103 of the Criminal Code. The most likely possibility would be that the defendant did so with at least an intention of providing support for Islamic State within the meaning of s 102.7.

15. [144]

    The result of this analysis is that, even if the defendant’s travel was fuelled by a belief in violent extremism, while it may inform a risk of the defendant committing a serious terrorism offence, it remains difficult to draw any conclusions with respect to the consequences, or at least the direct consequences, of any serious terrorism offence that may be committed by the defendant based on his past behaviour.

16. [145]

    The defendant’s belief in violent jihad, his possession of extremist materials, and relatedly, his online activity, unsurprisingly caused Dr Farrar to say the fact the defendant had not committed a serious terrorism offence did not mean there was no threat of him doing so. But an unacceptable risk is not satisfied by any threat. It is necessary in the context of the above discussion to consider both the extent of the risk and how that risk, should it be realised, is likely to manifest.

17. [146]

    As observed above, Dr Farrar said that the defendant “does pose a risk of committing a serious terrorism offence”, [80] by reference to the definition provided to her, if not subject to an ESO. Notably, however, the level of this risk was not indicated.

18. [147]

    With respect to the extent of the defendant’s risk, Dr Seidler’s opinion was that “a future act of violent extremism cannot be ruled out as a possibility” [81] and that it was “possible that any such act could approach the level” [82] of a serious terrorism offence. While elsewhere in her report, Dr Seidler referred to the risk of the defendant committing an act of violent extremism as “moderate” the likelihood that this would rise to a serious terrorism offence remains unclear.

19. [148]

    Dr Sweller’s opinion was at odds with the opinions of the other experts. Dr Sweller was, from my vantage point, an impressive witness. I would, however, say the same of Drs Farrar and Seidler. When the evidence of Drs Farrar and Seidler as to the defendant’s risk of committing a “serious terrorism offence” is isolated from their opinions with respect to an act of violent extremism, it may be that there is little difference between their opinions and that of Dr Sweller.

20. [149]

    One matter that causes me to pause before accepting the defendant does not pose a relevant risk if not subject to an ESO is that the defendant’s behaviour has undoubtedly been affected by the fact he has been on an order with stringent conditions, or in custody, since 2018. In this regard, Dr Sweller acknowledged that she could not predict what course the defendant would take if he were not the subject of an ESO. This was, at least in part, the result of her not having had the opportunity to interview the defendant due to his refusal.

21. [150]

    Ms Kocak found, consistently with the other experts, that the defendant’s “risk relates predominantly to emotionally reactive, grievance-driven, ideologically justified violence rather than premeditated, sophisticated terrorist acts” [83] . While acknowledging this to be his primary risk, she found that the defendant’s vulnerabilities “create specific risks” that could amount to the commission of a serious terrorism offence. The language of “could” suggests, similarly to Dr Seidler, and perhaps Dr Farrar, that the risk is in the realm of bare possibility. She did, however, additionally say that the results of the TRAP-18 indicate the defendant requires active case management and monitoring. While expressing the opinion the defendant “could” commit a serious terrorism offence, Ms Kocak rated the defendant as being at a moderate to high risk of committing specific serious terrorism offences. Her opinion in this regard is discussed further below.

22. [151]

    In addition to Drs Farrar, Seidler and Sweller and Ms Kocak, I have had regard to earlier reports including that of Dr Dayalan and Ms Abreu. I regard the more recent reports as being of greatest relevance.

23. [152]

    It must be acknowledged that the defendant’s primary risk is, as discussed above, in relation to general offending. Further, to the extent that the defendant may commit a reactive offence, perhaps of a similar nature to the 2018 offences, but which rises to the level of a serious terrorism offence, an ESO will likely do nothing to prevent it, subject only to any rehabilitative effect it may have. In this regard, at least Dr Seidler was doubtful that an ESO would have any rehabilitative effect. Putting to one side the potential rehabilitative effect of an ESO, it is difficult to see how the defendant could be at an unacceptable risk if not placed on an ESO, if the risk would not be mitigated by that order. Further, a reactive offence will, by its nature, not involve planning and at least to the extent of similarity with the 2018 offences, is unlikely to involve a weapon. (I accept in this regard that the defendant in 2023 used a box cutter to reinforce his threat, although it was not used any further in the commission of the offences.) To the extent that an offence may be of a similar nature to a letter written by the defendant containing threats, while such conduct, accompanied by the necessary intent, may amount to a serious terrorism offence, the product of the risk and the consequences would not be such as to justify the making of an ESO.

24. [153]

    Dr Seidler’s view was the most likely manifestation of the defendant’s risk of committing a serious terrorism offence would be him expressing support for a terrorist organisation, becoming involved in a terrorist organisation, engaging in acts to support a terrorist organisation or influencing others to be involved in a terrorist act through preaching. Dr Seidler thought it unlikely the defendant would have the capacity to plan or organise a terrorist act himself but that he would be “vulnerable to the influence of others”. [84] Dr Seidler was of the view that, “without the restrictions of the ESO, it seems likely that [the defendant] would connect with others who hold extremist views and who support violence, in addition to possibly accessing such content online”. [85]

25. [154]

    Dr Farrar regarded the most likely manifestation of the defendant’s risk would involve him engaging in conduct such as making threats, either verbally or in writing, similar to his conduct in the past, but presumably with some additional component elevating the conduct to a serious terrorism offence. Dr Farrar also considered there to be a likelihood of the defendant being in possession of things connected with a terrorist act. On my understanding of her evidence, this referred to a past terrorist act, rather than a thing that might facilitate a terrorist act for the purposes of an offence against s 101.4 of the Criminal Code (or similarly in relation to a document under s 101.5 of the Criminal Code).

26. [155]

    Ms Kocak gave ratings to various risk scenarios. While it is not entirely clear in context, the ratings appear to be with respect to the likelihood that, in the event the defendant did commit a serious terrorism offence, it would be of a particular type. It will be recalled that Ms Kocak’s opinion was that the defendant “could” commit a serious terrorism offence. If he were to commit such an offence, Ms Kocak rated the risk of him committing an offence contrary to s 101.1 (engaging in a terrorist act) as being moderate to high. The scenario postulated was one of reactive violence. There is reason to doubt that the defendant in such a situation would act with the requisite intent to make the act a terrorist act given the evidence that such an offence would likely be committed while he is in a dysregulated state. There is also, as discussed above, reason to doubt that an ESO would mitigate the risk of such an offence.

27. [156]

    Ms Kocak rated the prospect of the defendant committing an offence contrary to s 101.4 (possessing things connected with terrorist acts) as moderate to high. Based on the defendant’s history, this was likely to manifest in him possessing or sharing materials intended to glorify, inspire or prepare for Jihadist violence. Additionally, Ms Kocak found the likelihood of the defendant committing an offence contrary to s 102.3 (being a member of a terrorist organisation) or s 102.7 (providing support to a terrorist organisation) to be moderate. This would likely be the result of the defendant connecting with extremist peers via online networks, or, even without any formal affiliation, urging others to commit violence through verbal encouragement or ideological rhetoric.

28. [157]

    If an ESO were to do nothing to reduce risk, the defendant would not pose an unacceptable risk if he were not subject to an order. Applying the same logic, if the risk was cancelled out by the risk-increasing effect of an ESO, the test would not be met. There is a uniformity of opinion to the effect that the making of an ESO will have a risk increasing effect. It will do so by adding to the defendant’s sense of grievance. It was not suggested that this increase in risk effectively counterbalanced the risk if no ESO was made, although, understandably, there was no attempt to provide any quantification. Given the defendant’s existing attitudes and the possibility, and perhaps inevitability, that he will be the subject of some treatment by an authority he regards as unfair, he is likely to maintain his grievance against the State irrespective of the making of the ESO. While it must be accepted that that grievance may be exacerbated by the making of an ESO, given that this is just one of the vicissitudes that may befall him, I would not place great weight on this consideration.

29. [158]

    It must be accepted that, during the course of the ESO, the defendant has been punctilious in abiding by its conditions, with the exception of the offences committed in 2023 which were not the result of any deliberation. He has consequently demonstrated a capacity to abide by the rules set for him despite his ideology. On this logic, he will likely abide by the law including by not committing offences contrary to Part 5.3 of the Criminal Code. At this stage, however, it cannot be known whether the defendant’s compliance is purely pragmatic in the context of his close supervision under the ESO or reflective of a deeper commitment not to act on his beliefs. Nor can it be known whether, with increased opportunity, he may be more willing to act on his beliefs.

30. [159]

    While the low incidence of terrorism offences makes it statistically difficult to predict the applicant’s risk, the statutory task requires me to consider it. What can be said is that while the defendant’s risk of committing a serious terrorism offence is not quantifiable, I do not understand the evidence of Drs Seidler and Farrar to rate it as a possibility in the sense that anything is possible. His risk of committing such an offence is clearly higher than it is for the vast majority of the population.

31. [160]

    A common thread through the various experts is the defendant’s vulnerability to influence. This vulnerability is capable of being exploited. Any attempt to forecast what the defendant might in fact do if he were not subject to an ESO is largely foiled by the absence of any recent history during which the defendant has not been on an extremely restrictive order or in custody. The difficulty in such circumstances is that, despite the uncertainties that abound, given the defendant’s beliefs, and the prospect of his exploitation by others with greater organisational capacity, the risk that he may engage in or facilitate an act with dire consequences if not supervised under an ESO, even if small, is real. It is underscored by the absence of a settled routine in the community without close supervision. In the result I am ultimately satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under the supervision of an ESO.

Discretion

1. [161]

   The risk that the defendant may be more likely to commit a general violent offence if made subject to an ESO, while not relevant to the test in s 20(d) of the Act, is relevant to whether I should exercise my discretion to make an ESO.

2. [162]

   To the extent that either of Drs Farrar and Seidler considered the defendant presented any imminent risk, it was limited to a context in which he received a setback. The granting of an ESO is the most obvious potential setback in the immediate future. While that could be avoided by not extending the ESO, as discussed above, the prospect that the defendant will not at some time suffer setbacks in the future seems unlikely.

3. [163]

   There is a further downside to the making of an ESO in that it may solidify the defendant’s anti-authoritarian beliefs and, consequently, his risk. However, in circumstances where the evidence is that the defendant’s beliefs are unlikely to charge irrespective of external events, I would not place weight on this factor.

4. [164]

   There is some uncertainty as to how the defendant will respond to being in the community in the absence of an ESO, at least in the view of Dr Farrar. [86] This uncertainty might be met by a continuous cycle of applications and orders. Dr Seidler’s view was that, in the absence of an ESO, the defendant will likely do what he says he will do and maintain a routine, however he would also associate with “like-minded” persons. Relevantly, Dr Seider expressed the view that the defendant’s risk was not likely to change, potentially resulting in ongoing ESOs, potentially for the rest of his life. The prospect of the defendant being on a lifelong ESO is, in the context of the uncertain assessment of his risk, a relevant consideration in determining whether I would exercise my discretion to impose an ESO.

5. [165]

   There is evidence that the defendant has himself sought out and obtained permission under the ESO to engage in psychological treatment. Given his distrust of government services it appears to be the most likely manner in which he will receive psychological services in the future. It seems, however, that his willingness, insight and motivation to engage oscillate. Given these matters it may be that the absence of an ESO will not negatively impact the defendant’s receipt of psychological services. In the absence of an ESO it would not, however, be known if the defendant was obtaining psychological treatment and whether this was assisting him.

6. [166]

   Dr Seidler accepted that there was a danger of long term psychological damage to the defendant as a result of him being under the stress of an ESO over a long period of time. In a context where there is, on her evidence, little or no utility to a short ESO, this is an important consideration. Quite apart from the concern that the ESO, which is based on offences in relation to which the defendant has served his punishment, and which itself is not intended to be punitive, will negatively impact the defendant, the community is not well served by such an impact on one of its members. That is particularly so if it should manifest in violent behaviour, a risk referred to by Dr Seidler.

7. [167]

   The defendant submitted I would not exercise my discretion to make the ESO. While there is significance in some of the matters referred to above, I am of the view that, in the context of the risk and the uncharted territory entered by declining to make an ESO, an ESO should be made. I am of the view that many of the concerns raised above can be met by appropriately stepping down the conditions imposed with the ESO.

Conditions

1. [168]

   Section 29(1) of the Act provides that I may direct an eligible offender to comply with such conditions as I consider appropriate, before providing a non-exclusive list of conditions that may be set. Section 29(1A) of the Act provides a set of prescribed conditions which must be imposed unless the Court orders differently.

2. [169]

   Section 11 of Crimes (High Risk Offenders) Act 2006 (NSW) is also framed as a power to make orders the Court considers “appropriate”. In that context, Hoeben CJ at CL in State of NSW v Hunt (Final) [2020] NSWSC 1005 said:

3. [170]

   The making of the ESO itself is a reflection of the need to give paramountcy to the safety of the community: s 25(2). While the primary object of the Act remains community protection, and must be applied in the framing of the conditions, there is, in the present case, significant scope to provide for the further object of rehabilitation: s 3. The unusual nature of this case has the result that my approach to the conditions may also be somewhat out of the ordinary. The ESO will be significantly less restrictive than was sought.

4. [171]

   Three factors primarily lead to my approach. First, having regard to the discussion above, I am of the view that the defendant is very unlikely to commit a serious terrorism offence while he is subject to an ESO. Second, is the fact that, against the defendant in the decision to make the ESO, he is essentially untested in the community. It has only been since August of this year, when the ISO was imposed, that the defendant has not been subject to a schedule of movements. That he is presently untested supports the imposition of a period of time where his integration into the community can be tested. The third primary factor is that there is strong evidence that the defendant will comply with the ESO. That is, based on the evidence of the defendant’s punctilious commitment to complying with the order to date, the additional conditions can be framed on the basis of a presumption the defendant will comply. As a result, conditions primarily directed to enforcement can be relaxed or dispensed with.

5. [172]

   Additionally informing my approach is that the defendant has made some progress through his psychology sessions. His ASD diagnosis remains recent. It appears that the defendant has gained some insight into his functioning as a result of this diagnosis. In this regard, I note the potential benefits of an ESO as referred to by Dr Sweller at [150] of her report.

6. [173]

   In formulating the conditions, I have had regard to the evidence including, in particular, the Reintegration Management Report of John Banton and the NSW Police ESO Management Report of Jimmy Wang. The conditions I will impose do not align with those reports. They are, however, in my view appropriately adapted for the circumstances of the case.

7. [174]

   Part A: Supervision, Movements & Reporting. Having regard to the matters discussed above, I would not impose the scheduling condition. My reasons are essentially the same as those of Wright J. I would otherwise impose the conditions sought in Part A. These conditions are fundamental to the ESO in providing oversight of the defendant.

8. [175]

   Part B: Vehicles. I will impose the conditions in Part B. These conditions assist in supervising the defendant without being particularly onerous on him.

9. [176]

   Part C: Financial Oversight. The effect of the evidence of Drs Sweller, Farrar and Seidler was that the defendant does not present a risk of committing a serious terrorism offence by himself providing finance. Nor does he have the skills to raise money. He could, potentially, be used by another to transfer funds. I would impose condition 9, preventing him from transferring funds outside Australia without informing an Enforcement Officer. This is not an onerous condition. I would not otherwise impose the conditions in Part C.

10. [177]

    Part D: Electronic monitoring. This part proposes a single condition prescribed by s 29(1A). The presence of an electronic monitoring device is a very significant intrusion on the defendant’s liberty. Having regard to the unusual features of this case, I do not regard it as justified. The defendant it seems is likely to maintain a confined routine. He is, further, likely to respond honestly with respect to his movements.

11. [178]

    Part E: Accommodation. This part provides conditions with respect to the defendant’s residence, including a curfew. I will impose conditions 11, 12 and 13, each of which are prescribed conditions. Conditions 11 and 12 are not onerous or intrusive. Condition 13 does involve a level of intrusion but is appropriate as part of the general supervision of the defendant. I would, however, modify the condition so that any visit is to be between the hours of 8am and 8pm. I will not impose condition 14 which seeks a curfew. There is nothing in the evidence to suggest the defendant poses a greater danger at night. The defendant himself is likely to have a regular schedule without the need to impose one on him. I would also allow the defendant to have visitors at his address and thus will not impose condition 15. The defendant of course may be asked about visitors by his Enforcement Officer and is expected to answer honestly in accordance with condition 3. Condition 16 in relation to entering into leases, mortgages, or hire agreements, on balance, should not be imposed. The defendant is unlikely to hire a facility for a nefarious purpose on his own account. While it is possible he may be used by another, I consider this to be unlikely with an ESO in place, and I would err on the side of keeping the conditions simple.

12. [179]

    Part F: Place & Travel Restrictions. Condition 17 would allow an Enforcement Officer to restrict the defendant going to certain places. Limiting the defendant in this way has the potential to reduce the risk of the defendant’s exposure to persons who may negatively influence him. I will impose this condition but would expect it to be utilised judiciously. I would also impose conditions 18 and 19 requiring the defendant to remain in NSW and restricting his access to a passport. I do not regard condition 20 as necessary.

13. [180]

    Part G: Search & Seizure. These conditions are necessary and appropriate as part of the defendant’s supervision under the ESO.

14. [181]

    Part H: Addictions. These conditions are generally appropriate with the exception of those related specifically to alcohol. There is no suggestion the defendant has any issue with alcohol and it is, presumably, contrary to his beliefs. I will remove the reference to alcohol from conditions 24 and 27, and will not impose conditions 25 and 26.

15. [182]

    Part I: Weapons. These conditions are appropriate and I will impose them.

16. [183]

    Part J: Psychological/Psychiatric Assessment, Counselling & Medical Treatment. I regard these conditions as important in assisting the defendant’s integration into the community and will impose them.

17. [184]

    Part K: Employment, Volunteering & Education. Condition 36 requiring the defendant to keep his Enforcement Officer appraised of his employment is appropriate as part of his supervision. The particular risks in relation to potential workplaces and education in the Reintegration Management Report are not, on the evidence of the experts, particular risks in this case. I will modify condition 37 to allow the defendant to take up work, including volunteer work, and educational courses and require him to notify his Enforcement Officer “if practicable before so engaging or otherwise at his next interview with an Enforcement Officer.”

18. [185]

    Part L: Communication, Internet use & Electronic Devices: Conditions 38 and 42 to 44 are appropriate having regard to the nature of the defendant’s risk. I do not regard conditions 39 to 41 as necessary having regard to the other conditions that I will impose including in particular condition 38 and the evidence of his past compliance.

19. [186]

    Part M: Associations. This set of conditions raises the most difficult question. As discussed above, the defendant’s risk is most pronounced in the area of his associations and the potential for him to be subject to negative influence. On the other hand, the defendant feels the restrictions of the ESO most acutely in its impact on his ability to find connections in the community. While the defendant’s position may not be entirely rational, that does not affect the conviction with which it is held. As a result, his prospects of moving forward will, it seems, be severely diminished by the imposition of these conditions. The dilemma is resolved in my view by the observation previously made: that the defendant, on the evidence, can be expected to abide by the conditions of his ESO. In particular, conditions in relation to his online activity and conditions to follow in relation to not engaging in extremist activity provide sufficient protection. I will not impose these conditions.

20. [187]

    Part N: Identity & Appearance. Condition 50 is appropriate. According to the NSW Police ESO Management report, condition 51 is sought to address a concern in relation to the defendant obtaining a false identity. The condition is more appropriately framed as “The defendant must not possess or attempt to possess any form of identification in a name other than Mejid Mustapha”. Condition 52 allowing the Enforcement Officer to photograph the defendant for identification purposes is not unduly onerous and will be imposed. I will not impose condition 53 given its limiting effect, the potential for uncertainty and the power of the Enforcement Officer to photograph the defendant if necessary. While the ESO Management report suggests the condition is necessary to counter the possibility the defendant changes his appearance to avoid detection, if the defendant is willing to do something to his appearance for the purpose of avoiding being detected, presumably in some unlawful activity, this proposed condition is unlikely to be effective.

21. [188]

    Part O: Extremism. These conditions are, subject to one matter, appropriate and, indeed, central to addressing the defendant’s risk of committing a serious terrorism offence. The one caveat is that, in its present form, condition 55(b) goes beyond the concern the defendant will commit a serious terrorism offence. I will confine the condition to the relevant risk by deleting the words “for reasons related to concerns regarding violence or”.

22. [189]

    For ease of understanding these reasons, the conditions as sought by the plaintiff will be set out in a Schedule to the orders with any deleted conditions or words struck through and any words added underlined. It is expected that the defendant will be provided with a clean copy of the conditions and that they will be carefully explained to him, including as to the extent of the relaxation of the conditions and the reason for that relaxation.

Duration

1. [190]

   In accordance with my view that the ESO provides an opportunity the defendant has not previously had to be tested in the community with a greater level of freedom, I would not impose an ESO of the length sought by the plaintiff. In my view, one year will provide the defendant sufficient time to prove himself. It is hoped that the conditions and limited duration encourage him to do so.

2. [191]

   The ESO will commence on the day it is made, that being 13 November 2025. It will (noting that the law does not generally deal in part days) be due to expire at the end of 12 November 2026.

Orders

1. [192]

   I make the following orders:

   1. (1)

      Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act), I order that the defendant be subject to an Extended Supervision Order for a period of one year from today.

   2. (2)

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