State of New South Wales v Lawrence (Preliminary)

By Summons dated 14 June 2019, the State of New South Wales (“the State”) seeks final orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) for the continued detention and/or the continued supervision of the defendant, Tukiterangi (Tuki) Lawrence. The State also seeks interim orders for his continued detention or continued supervision pending the final hearing of the Summons.

The State also seeks an order appointing one qualified psychiatrist and one registered psychologist to conduct separate examinations of the defendant and to furnish reports to the Court in advance of the final hearing.

The defendant opposes the Court making orders for his extended detention or extended supervision on either an interim basis or as final orders (and the orders that he be examined by a Court appointed expert) on the basis that the Act is Constitutionally invalid because it undermines, or is incompatible with, the institutional integrity of the Court as a repository of Federal jurisdiction under Chapter III of the Constitution, and is therefore beyond the State’s legislative power. Allied to that submission is the alternative submission that particular provisions of the Act are invalid for the same reason.

In the event that the Constitutional challenge fails, the defendant submitted that the Court is without power to make interim orders for the defendant’s continued detention or extended supervision because, as a matter of statutory construction, one of the statutory criteria for the making of those orders is not met.

The Constitutional challenge was first raised on 30 July 2019 by service of a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). That notice was served after the matter was fixed for a preliminary hearing on 6 July 2019 (with a one day estimate) and after an application by the Attorney General that certain evidence for the purposes of the proceedings be dealt with by the Court as “terrorism intelligence” in accordance with the procedure provided for in Part 5 Div 5.3 of the Act on 25 July 2019 had been heard and determined: State of New South Wales v Lawrence [2019] NSWSC 946. Both hearing dates were fixed in circumstances where the Court was made aware that the defendant’s sentence of 18 months for the index offences of demand property with intent to steal in company, contrary to s 99(2) of the Crimes Act 1900 (NSW), and being armed with intent to commit an indictable offence, contrary to s 114 of the Crimes Act, was due to expire on 21 August 2019.

On 1 August 2019 (two days after service of the notice of a Constitutional matter) the date for the preliminary hearing was vacated as were orders for the service of evidence and submissions going to the preliminary issues raised by the Summons. The preliminary hearing (together with any argument as to the Constitutional validity of the Act) was relisted to commence on 19 August 2019, two days before the defendant's sentences for the index offences expire. On 1 August 2019 a reformulated timetable was also set with a direction for the filing of submissions going to the Constitutional issue.

By 16 August 2019 the Court was provided with lengthy submissions from both the State and the defendant on the Constitutional issue, and equally lengthy submissions directed to the defendant's challenge to the Court’s jurisdiction to make the interim orders sought by the State and the discretionary question that arises were the Court to find the statutory criteria for the making of interim orders of either kind satisfied. The Court was also furnished with eleven lever arch volumes of material comprising the evidence upon which the State proposed to rely at the hearing.

At the commencement of the preliminary hearing on 19 August 2019, and after the evidence to be adduced by the parties was identified and admitted with the agreement of the parties, Mr Robinson SC for the defendant addressed the issue of Constitutionality to which Mr Renwick SC responded on behalf the State.

In summary, Mr Robinson submitted that there are features of the Act which, either collectively or individually, impair the institutional integrity of the Court. In his submission they include provisions which have the effect of selectively applying the rules of evidence so as to give the appearance that the Court is an instrument of the Executive; provisions which have the effect of derogating from the principle of open justice; provisions which substantially compromise or negate the Court's discretion in significant areas of its jurisdiction under the Act; and provisions which require the Court to depart, in a significant degree, from the methods and standards which characterise the exercise of judicial power. He submitted that the High Court decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 continues to be binding authority and that there is nothing in the cases which have considered and applied Kable which would dictate any different result. He also submitted that Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 is inconsistent with the majority judgments in Kable.

Mr Renwick submitted that the Constitutional challenge particularised in Mr Robinson's written submissions, and which he addressed orally, has not been established. He submitted that the Act has much in common with the legislation considered in Fardon and Kamm v State of New South Wales (No 4) [2017] NSWCA 189 (in both cases a Constitutional challenge to state legislation was dismissed). He submitted that the commonality of provisions and their operation in this Act within the statutory framework of the legislation under consideration by the High Court and the Court of Appeal is demonstrated by a schedule (attached to his submissions) which compares key provisions of the legislation under consideration and the Act under challenge here. Mr Renwick submitted that since this Court is bound by both Fardon and Kamm, and where there is no relevant basis upon which to distinguish them, the Constitutional challenge mounted by the defendant should be dismissed.

Mr Renwick also submitted that since the High Court decisions in K-Generation Pty Limited Liquor Licensing Court [2009] HCA 4; 237 CLR 501 and Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38, each of which bear directly on the Constitutional validity of the terrorism intelligence provisions in Part 5 of the Act, are also of binding authority, this Court would need to find those cases were wrongly decided in order for the defendant’s specific Constitutional challenge to Part 5 of the Act to be upheld, an argument not available to the defendant in these proceedings.

Mr Casselden SC did not wish to be heard on the Constitutional argument.

Mr Casselden then addressed the issues raised by the Summons on behalf of the State to which Mr Robinson responded. Save for a very limited submission from Mr Renwick, he did not wish to be heard on the issues raised in the substantive proceedings.

Mr Fraser, who appeared for the Attorney General of New South Wales, did not file submissions; nor did he seek to be heard on any of the matters addressed in the submissions by either the senior counsel retained by the State or senior counsel for the defendant.

Although in other circumstances the determination of a Constitutional challenge to State legislation would logically precede the resolution of an inter partes dispute as to the operation of that legislation, it was accepted by all parties that I should resolve the defendant’s opposition to that part of the Summons which concerns the application by the State for interim orders first and reserve judgment on the Constitutional challenge.

It was accepted that approach would not be productive of any practical prejudice to the defendant in circumstances where, because he has been sentenced to a further term of imprisonment after the sentence was imposed for the index offence on 30 July 2019 (a sentence he is currently serving concurrently with the balance of the sentence imposed for the index offence), were I to reject Mr Robinson's submissions that the Court is without power to make the interim orders, and were I to reject his submission that the Court should not make the interim orders in the exercise of discretion, any interim orders for the defendant’s continued detention or extended supervision vis the index offence would not take effect (that is, it would be “suspended”) until he has served the sentence imposed on 30 July 2019, being “in lawful custody” for that offence, given the operation of ss 28(8) and 42(2).

Accordingly, this judgment will not deal with the Constitutional validity of the Act. What follows will deal only with question whether the interim orders sought by the State at the preliminary hearing ought be made.

As noted above, in the Summons filed on 14 June 2019 the State seeks a range of orders, including final orders under ss 34(1)(b), 39(1)(b) and 40(1)(b) of the Act that the defendant be subject to a continuing detention order (“CDO”) for a period of 3 years, and an order under ss 20, 25(1)(a), 26(6) and 69(2) that he be subject to an extended supervision order (“ESO”) for a period of three years commencing upon the expiration of the CDO, with an order directing him to comply with a range of proposed conditions, itemised in Schedule A to the Summons, for the duration of the ESO.

The hearing on 19 August 2019 was convened as a preliminary hearing in accordance with s 24(4) of the Act with the State seeking orders under ss 41 and 42(1) of the Act that the defendant be subject to an interim detention order (“IDO”) for a period of 28 days commencing from 22 August 2019 and, in the alternative, an order under ss 27 and 28(1) of the Act that he be subject to an interim supervision order (“ISO”), also for a period of 28 days commencing from 22 August 2019, and that he be directed to comply with the same conditions sought in respect of the ESO for the duration of any ISO the Court was minded to make. The interim order (whether an IDO or an ISO) was sought pending the final hearing of the Summons.

The State relied upon the following evidence:

The State read the affidavits of:

The defendant tendered a statement of agreed facts and read the affidavits of Rhiannon McMillan dated 5 August 2019 and 16 August 2019.

The State submitted that the application for both the CDO and an ESO satisfies the requirements in ss 37 and 23 of the Act, respectively. The defendant did not submit otherwise.

Insofar as the application for the CDO is concerned, the defendant concedes he is a an “eligible offender” as provided for in ss 34(1)(a)-(d) of the Act in that he is a detained offender (being a person who is in custody whilst serving a sentence of imprisonment for a NSW indictable offence – the index offence); the application for the CDO was made in accordance with Part 3 of the Act; he meets the definition in s 10 of the Act of “a convicted NSW terrorism activity offender” having previously made a statement advocating support for a terrorist act or violent extremism; and the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism of offence (as defined) if not kept in detention under the order.

Insofar as the application for the ESO is concerned, the defendant accepted that he is an “eligible offender” as provided for in ss 20(1)(a)-(d); that he is in custody while serving a sentence of imprisonment for a NSW indictable offence; the application for the ESO was made in accordance with Part 2 of the Act; he meets the definition in s 10 of the Act of “a convicted NSW terrorism activity offender”; and the Court would be satisfied, to a high degree of probability, that he poses an unacceptable risk of committing a serious terrorism offence (as defined) if not kept under supervision under the order.

Section 20(1)(a), which provides that in order to qualify as an eligible offender the offender must either be in custody or have been in custody at the time the original application for the ESO was made, is of some significance on the construction of what is constituted by “current custody”. It will be necessary to return to the definition of “current custody” in the context of the Act in both ss 19 and 33 of the Act. As the parties recognised, it was the resolution of what is meant by that term which will determine whether the Court has jurisdiction to make the interim orders sought by the State under ss 27 and 41 of the Act.

In conceding that the application for both the CDO and the ESO was made in accordance with Part 3 and Part 2 of the Act respectively, the defendant acknowledges (or does not put in issue on the preliminary hearing) that the application for both orders was supported by documentation addressing each of the matters referred to in ss 39(3) and 25(3) of the Act, including a report (prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert), being the risk assessment report of Filipa Abreu and Naomi Prince, which assesses the likelihood of him committing a serious terrorism offence.

While the defendant conceded that the Court would be satisfied to a high degree of probability that the supporting documentation (if proved at the final hearing) supports the making of a CDO and an ESO, I propose to set out the matters to which I must have regard in making that determination as provided for in ss 39(3) and 25(3) of the Act.

In a psychological risk assessment report, undertaken at the request of the New South Wales Commissioner of Corrective Services, the following findings were made regarding the defendant’s likelihood of committing a serious terrorism offence as defined:

The risk assessment report further noted at par 110 that:

In determining whether or not to make final orders of the kind sought by the State, the Court may also have regard to the level of a defendant’s compliance with any obligations to which he is or has been subject in the past. This extends to any obligations while on release on parole, subject to a control order, subject to an earlier extended supervision order or interim supervision order, or subject to any other order of a court.

On 21 August 2018, the defendant was released on parole under the supervision of Parramatta Community Corrections. Parole was revoked on 18 March 2019 and the defendant was returned to custody.

The defendant also demonstrated an attitude of non-compliance during an earlier release to parole in 2013. This was described in the risk intervention report as follows:

During his time in custody, the defendant has incurred a number of institutional misconduct charges. These were summarised in the risk assessment report at par 69:

Following the revocation of parole in August 2018 and the defendant’s subsequent return to custody, the defendant incurred a further institutional misconduct charge for intimidation. This involved threatening to assault staff over the Offender Telephone System.

In the risk assessment report, the defendant’s response to community supervision was detailed as follows:

The defendant’s pattern of non-compliance with a number of community based orders was also referred to in the risk intervention report:

Further, the defendant has a history of non-compliance with bail conditions, including three consecutive breaches in 2012.

The criminal history of the defendant is extensive and demonstrates an escalation over time in both the violence and frequency of his offending. The New South Wales Police Facts Sheets provide further details of the nature and severity of the offences attracting criminal sanction which date back to the defendant’s early adolescence. A summary of the various offences is found in the risk assessment report:

On 1 March 2018, McAnulty LCM sentenced the defendant to imprisonment for a period of 18 months with a non-parole period of 6 months for demanding property by force in company with intent to steal, contrary to s 99(2) of the Crimes Act and being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act (the index offences). The sentence for the index offences commenced on 22 February 2018 and is due to expire 22 August 2019.

The details of the index offences were summarised in the risk assessment report of 15 May 2019 at pars 48-50:

The defendant’s current and continuing affiliation with fundamentalist belief structures is demonstrated by several documented instances of support for violent extremist activities or behaviour which “contained elements of an extremist religious ideology”. The risk assessment report details these instances:

In addition, the risk intervention report made the following findings which suggest that the defendant’s continued alliance with violent extremism may present a serious concern to community safety:

The risk intervention report also details the defendant’s associations with organised crime groups, escalation of extremist religious views, associations with religious extremists, weapon use and associated violence:

After undertaking the evaluative exercise required of the Court under ss 25 and 39 of the Act, I am satisfied that the supporting documentation, if proved, would justify the making of an ESO or a CDO.

In s 33 in Part 3 of the Act, “current custody” in relation to an eligible offender in respect of whom an application for a CDO is made is defined as “the custody (if any) to which the offender is subject at the time of the application”.

In s 19 in Part 2 of the Act, “current custody” in relation to an eligible offender in respect of whom an application for an ESO is made is defined as “the custody to which the offender is subject at the time of the application”.

While Mr Robinson accepts that the defendant is an “eligible offender” for the making of an ESO under Part 2 of the Act, and an “eligible offender” for the making of a CDO under Part 3 of the Act (it being conceded that the application by the State in seeking both orders was made in accordance with Parts 2 and 3 of the Act, including that he was “in custody” at the time the original applications were made – that is, at the time of the filing of the Summons), he submitted that on a proper construction of the concept of “current custody” as defined in ss 19 and 33, the Court could not reasonably form the view that the defendant’s “current custody” will expire before the final hearing of the Summons, a state of affairs that is a prerequisite for the Court making an ISO under s 27 of the Act and a prerequisite for the making of an IDO under s 41 of the Act.

Section 27, which deals with ISOs, provides:

Section 41, which deals with IDOs, provides:

It is common ground that the defendant's sentence for the index offences is due to expire on 21 August 2019. It is also common ground that on 30 July 2019 he pleaded guilty and was sentenced in the Local Court to 18 months’ imprisonment, with a non-parole period of 9 months, commencing on 30 July 2019 for the offence of stalk/intimidate with intent to cause fear of physical harm (domestic) pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), an offence committed whilst he was on parole for the index offences. That sentence does not expire until February 2021 with the earliest release date 29 April 2020.

Put simply, Mr Robinson submitted that the defendant’s “current custody” necessarily includes the sentence imposed on 30 July 2019 and, that being the case, and because the Court could not be of the reasonable view that sentence will expire before the final hearing of the Summons, neither an IDO nor an ISO can be made. The State submitted that, properly construed, “current custody” in each of ss 19 and 33 means the custody referable to the index offences which tethers the application for a CDO and an ESO brought by the State by the filing of the Summons, and that custody will expire well before the final hearing of the Summons, namely on 21 August 2019.

Mr Robinson submitted that in the event that the Court is satisfied that the statutory criteria for the making of either an IDO or an ISO is met (that is, that the Court has jurisdiction under ss 27 and 41 to make the orders), he submitted that the Court should, in the exercise of its discretion, decline to make the orders in circumstances where, because the defendant is in lawful custody for offending other than the index offending and where his earliest release date for that offending is April 2020, the application at this time for interim orders for the defendant’s continued detention or supervision is inutile.

Although Mr Robinson conceded that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or a CDO (including his acceptance that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision or kept in detention as provided for in ss 20(d) and 34(d) of the Act), he submitted that since the primary statutory objective in providing for the extended supervision and continuing detention of offenders who pose an unacceptable risk of committing serious terrorism offences is to ensure the safety and protection of the community, the Court would be satisfied that the defendant's current custodial circumstances, and his stated intention not to appeal the sentence imposed on 30 July 2019, are such that he poses no risk to the community at all.

In short, the defendant submitted that the State’s application for an ISO or an IDO is premature and, in the exercise of discretion, the application should be refused.

“Current custody” is defined in identical terms in Parts 2 and 3 of the Act as follows:

The definition of “current custody” in ss 19 and 33 is then deployed in Part 2 of the Act in ss 23(2) and 27(b). Section 23(2) deals with the requirements that need to be met for the making of an ESO and specifies that “an application for an extended supervision order in respect of an eligible offender may not be made until the last 12 months of the offender’s current custody or supervision”. Section 27 is set out at [49] above.

The definition of “current custody” is also deployed in Part 3 of the Act in s 41 which concerns the making of an ISO. That section (set out at [50] above) mirrors the operation of s 27 which concerns the making of an ISO, save for the fact that s 41 provides expressly for an application being made even if the eligible offender is not in custody at the time of the application such that the only precondition to the making of an IDO is that there are proceedings on foot seeking a CDO. Turner v State of New South Wales [2019] NSWCA 164 makes that clear. In that case the Court held, for the purposes of s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”) (s 18A being in precisely the same terms as s 41), that there is no express condition requiring that the person be in current custody when the IDO is made. The Court was satisfied that construction was consistent with the reasoning in Attorney General for New South Wales v Tillman [2007] NSWCA 119 that there is no temporal mandate limiting the power of the Court to hear and determine an application for an interim order, including a renewed order, except that proceedings for final relief are pending. This is consistent with s 41(a) of the Act such that the Court may make an IDO if it appears to the Court that the offender’s current custody “(if any)” will expire before the proceedings are finally determined.

In Mr Robinson’s submission, when given their ordinary meaning, the words “current custody” refer to the custody to which an offender is held in detention after being sentenced for a “NSW indictable offence” and at the time the application for interim orders is heard by the Court. In the defendant's submission, the term or concept of “current custody” should not be limited to the detention in custody of an offender that follows the imposition of a sentence of imprisonment for the index offence (that is, the sentence of imprisonment being served for the NSW indictable offence in s 23(1)(a) and ss 33 and 37(1)(a) which grounds the application by the State for an ESO or a CDO), but should include any sentence of imprisonment for a NSW indictable offence that is being served by the defendant at the time the application for interim orders is heard by the Court, whether that sentence was imposed at the same time as the sentence for the index offence or before or after that date.

Applying that construction, Mr Robinson submitted that at the time the Court hears an application for the making of interim orders under s 27 or s 41, the Court is simply to enquire into the earliest date the defendant will be released from custody for any NSW indictable offence for which he or she is serving a sentence of imprisonment at that time and, after making a reasoned assessment of the date by which the proceedings for final orders will be determined, to make a further reasoned assessment as to whether the offender’s “current custody” will expire before that date.

Mr Robinson submitted that the interpretation of “current custody” for which he contended is supported by the principles of statutory construction having regard to the context in which the words appear in the Act and when the Act is read as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]. He accepted that the words must also be construed so that they are “consistent with the language and purpose of all the provisions” of the Act and on the prima facie basis that the provisions “are intended to give effect to harmonious goals”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70].

Mr Robinson submitted that ISOs and IDOs are, by definition, “interim” orders; that is, they are intended to ensure the safety and protection of the community while an application for an ESO or a CDO is pending by providing that an eligible offender may either be detained or supervised while the application is pending with the community protected in the interim. Mr Robinson submitted that it would be inconsistent with this objective for the words “current custody” to refer only to the custody directly referable to the sentence being served for the index offences at the time the application was filed (the position advanced by the State), there being no utility in interim orders being made where, at the time of the preliminary hearing, the offender (while an eligible offender for the making of final orders) is a person who is in custody serving a sentence or sentences the expiration of which is some time in the future.

Mr Robinson submitted that it is clear that the legislature intended to make provision for the restriction of a defendant’s liberty in advance of a final hearing on the question whether that restriction should be made by a CDO or an ESO, by providing for the making of an interim order where the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a final order (ss 27(b) and 41(b)). He also submitted that it was also clear that the legislation intended that a restriction on an eligible offender’s liberty should only be for a short time; that is, where it appears to the Court that, without such an order, the defendant’s “current custody” would expire. Mr Robinson also emphasised that an interim order is limited to a period of not more than 28 days (ss 28(1)(a) and 42(1)(a)) subject to extension at the expiration of 28 days, but not to exceed 3 months (ss 28(7) and 42(3)). He submitted that it is unlikely that the legislature intended that interim orders might be suspended for long periods of time after they are made while the defendant is otherwise in lawful custody for unrelated offending, despite there being a statutory mechanism in ss 27(6) and 42(2) for that to occur.

Finally, Mr Robinson advanced the submission that the legislature could have specified that the words “current custody” (as defined) referred only to the custody referable to the sentence for the NSW indictable offence in respect of which the offender was in custody at the time the application was filed (being the index offence, so called) had it wished to do so, but it did not.

Mr Robinson was unable to cite any authority supporting the construction for which he contended. In State of New South Wales v Dunn [2018] NSWSC 1008 N Adams J considered the meaning of “current custody” in s 41 of the Act. Her Honour had to consider whether there was jurisdiction to make the interim orders sought by the State in circumstances where the defendant’s sentence for the index offence expired two days after the preliminary hearing and before his sentence for a subsequent offence commenced with that sentence due to expire 12 months later (a set of circumstances not wholly dissimilar from the situation that presents here). It is not apparent from the judgment whether the subsequent offence, which concerned the defendant damaging his prison cell, was “a NSW indictable offence”. The parties reached agreement on the meaning of “current custody” to the effect that the Court would not have jurisdiction to make interim orders if they were not made before the sentence for the index offending expired. Her Honour accepted the joint construction of the parties as to the meaning of “current custody” for the purpose of s 41(a) at [150]:

Mr Robinson submitted that, given the circumstances in which Dunn was decided, including the parties’ agreement as to the proper construction of s 41 of the Act and her Honour’s expression of doubt as to whether that construction was correct, this Court would not regard Dunn as either binding or persuasive authority. Mr Casselden submitted otherwise. He submitted that although her Honour queried whether the words “at the time of the application” in ss 19 and 33 could also mean “at the time of the application being before the Court” (namely, at the time the Court is being moved for interim orders), that construction is consistent with the State’s position that an application for a CDO is extant from the time it is commenced by the filing of the Summons until it is determined, such that the Court may make an IDO at any time between the filing of the application for a CDO and the final determination of that question, provided that the defendant’s “current custody” (if any) as it relates to the application is expected to expire prior to the application for the CDO being finally determined.

In addition to Turner (earlier referred to at [58]), Mr Casselden referred to State of New South Wales v Elmir [2019] NSWSC 263, another case, as with Turner, which concerned the operation of the CHRO Act. Although the definition of "current custody" in the CHRO Act differs to the definition under the present Act, in that it refers to “custody to which the offender is subject at the time the application is made” as distinct from “custody to which an offender is subject at the time of the application”, Mr Casselden submitted that both Turner and Elmir were consistent with the construction of ss 19 and 33 which the State advanced, namely that “current custody” is the custody to which the offender is subject at the time of the application” being “custody” (for the index offence) that was “current” at the time the application for a CDO was initiated or commenced.

Mr Casselden submitted that the operation of the Act is anchored temporally to the custody (or supervision) of an offender at the time the proceedings are commenced, as is demonstrated by the following provisions:

Mr Casselden submitted that the concept of “current custody”, utilised in both ss 19 and 33 of the Act, should be construed as a reference only to the custody related to the sentence imposed for the index offence, since it is that offence which “anchors” the application by the State both for an IDO (s 41) or an ISO (s 27), and the offence which also “anchors” the application for a CDO and an ESO in turn being the proceedings in the course of which interim orders are sought. He submitted, also by appealing to the established canons of statutory construction, that when read as a whole, the Act positions the index offending as the centrepiece of the statutory regime comprehended by the Act. He also emphasised that an offender's eligibility (or susceptibility) for the making of both an ESO and a CDO on the application of the State is premised on being sentenced for a NSW indictable offence (being the index offending) and that numerous other provisions in the Act make reference to that offence (albeit not by that name), such that a harmonious reading of the Act is only possible when the concept of “current custody” is made referable to the particular index offence the subject of the State’s application for final orders under the Act.

Finally, Mr Casselden submitted that the distinction in the Act between “current custody”, which is defined in the Act, and “lawful custody”, which is not, is also of significance as the following provisions make clear:

In my view, it is the distinction between “current custody” and “lawful custody” which signifies that it is the custody referable to the index offence that is the subject of the definition of “current custody” in ss 19 and 33. That same distinction also satisfies me that it is the custody referable to the index offence current as at the time the application is initiated which is the subject of consideration when interim orders are sought, namely whether that custody (if any) will, in the Court's judgment, likely expire before the final proceedings are determined. “Lawful custody”, on the other hand, has a distinct and separate meaning. While not defined in the Act, logic dictates it must refer to and include any additional or other sentence for which the defendant might be serving a period of imprisonment at the time the interim orders are made.

I accept the ultimate submission advanced by Mr Casselden that if the legislature intended for the Act to operate in the way contended for by the defendant, it would have provided that the Court may make an IDO or an ISO where it appears to the Court that the offender is in “lawful custody” for any NSW indictable offence, including in “custody” for such an offence at the time of making the interim orders.

Having regard to the operation of the Act, in my view Mr Robinson’s submissions would be productive of “disharmony” were they to prevail.

I have already undertaken the evaluative exercise of determining whether, according to relevant subheadings in ss 25 and 39, the supporting documentation, if proved, would justify the making of an ESO or a CDO and concluded that it would.

In addressing Mr Robinson's submission that there was simply no utility in making interim orders for the defendant’s continuing detention or supervision at this time, Mr Casselden submitted that despite the defendant’s current intentions, communicated through his solicitor, that he will not appeal that sentence to the District Court on severity grounds, his instructions could change. I note that the defendant has 28 days under the Crimes (Sentencing Procedure) Act 1999 (NSW) within which to lodge a severity appeal at the expiration of which leave would need to be granted for the appeal to be competent within a further 3 months. Mr Casselden submitted that since there remains at least a degree of uncertainty as to the defendant's attitude to that sentence, that, of itself, would be a sufficient basis for the Court to make the orders in the exercise of its discretion.

Mr Casselden also commended to the Court the observations of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559 and the observations of Rothman J in State of New South Wales v Ceissman [2018] NSWSC 508 at [38]. In Ceissman Rothman J considered that, after concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level, discretionary factors would need to be strong before the Court, at an interim proceeding, would refuse to make an interim order in the exercise of discretion. In relation to the equivalent discretion in the CHRO Act, as Garling J said:

I note that in Elmir Campbell J made an ISO in circumstances where the defendant’s “current custody” was due to expire but where he remained in custody, albeit on remand for a Commonwealth offence as to which his Honour said:

I am not satisfied this case should attract the discretion in s 41 in favour of the defendant by the Court declining to make an IDO. I do not regard the fact that he is serving a sentence unrelated to the index offences as a factor which should attract the exercise of discretion or the fact that the orders once made will be suspended whilst the defendant serves the balance of that sentence.

On the assumption that the Court was satisfied that an interim order should be made at this time in the exercise of discretion, Mr Casselden submitted having regard to the seriousness of the defendant’s conduct on his release to parole in 2018 (conduct which formed the centrepiece of the parole authority’s decision both to revoke parole and to refuse to rescind the revocation order), it would be a sound exercise of the Court’s discretion to make an IDO and not an ISO. I accept that submission. In coming to that conclusion I also took into account what Dr Shanahan described as a “single-minded focus on a narrow and literalist interpretation of Islam”. It appears that the defendant has been engaged in the following activities:

I also take into account the conclusion reached by the authors of the risk assessment report that the defendant is at a high risk of engaging in extremist violence as I do the views expressed in the report that he appears to hold religiously orientated grievances, has violent ideation, including a willingness to die as a martyr for a religious cause and that he is continuing to seek out and engage in learning extremist beliefs.

1. Pursuant to s 38(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW):