State of New South Wales v XX

1. [1]

   By summons filed 21 October 2022, the State of New South Wales (“the State”) seeks an Extended Supervision Order (“ESO”) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) against the defendant, xxxx xxxxx. The State’s summons also seeks an order, under s 24(5) of the Act, appointing a psychologist and psychiatrist to examine the defendant and an Interim Supervision Order (“ISO”) under s 27 of the Act for a period of 28 days. This judgment deals with those latter claims for relief.

2. [2]

   At the outset, it should be noted that one feature of this application is that the defendant has never been convicted of, nor charged with, any terrorist offence, or any offence said to involve any terrorist act, although he has been convicted of a number of offences of violence. Instead, the basis upon which he is said to be subject to the regime of the Act arises out of the circumstances that occurred when he was placed in custody in close proximity to a number of persons who were either then, or were soon to become, convicted terrorists.

The Act

1. [3]

   Given the issues that have arisen on the application, it is only necessary to briefly describe the provisions of the Act. Sections 22 and 23 enable the State to apply to the Court for an ESO in respect of an “eligible offender” who is in custody or under supervision, either while serving a sentence of imprisonment for a “NSW indictable offence” or, if subject to an existing ISO, ESO, an interim detention order or a continuing detention order. Section 7 defines an “eligible offender” as including a person who is 18 years of age or older and is serving a sentence of imprisonment for a NSW indictable offence.

2. [4]

   Relevantly, on 30 July 2020, the defendant was sentenced to a term of imprisonment of 2 years and 3 months, with a non‑parole period of 1 year and 5 months for the offence of reckless wounding, contrary to s 35(3) of the Crimes Act 1900 (NSW) (the “index offence”). His sentence is due to expire xxxx xxxxx, xx xxxxxxxx xxxx. xx xxxx xxxxx, x xxxx xxxx xxx xxxxx xx xxx xxxxxxx xxxxxxxx xxxx xxxxxx xx xx x xxxxxxx xxxxxx xx xxx xxxxxxxxx xxx x xxxxxx xxxxxx xx xxxxxxx xxxxxxxxx xxxxxx xx xxxxxx xxxxxx xxxx xxxx xxxx xxxxx xxxxxx xxxx xxxxxxxx xxxx xxxxxx. It follows from this that the defendant is an “eligible offender” for the purposes of the Act.

3. [5]

   Section 24(4) of the Act requires the Court to conduct a preliminary hearing into the application within 28 days after it is filed. Section 24(4) provides that:

4. [6]

   Section 24(5) provides:

5. [7]

   Section 27 of the Act deals with the making of an ISO. It provides:

6. [8]

   Each of ss 24(5) and 27 refer to the content of the “supporting documentation”, being a reference to the material that must accompany the application. It includes a report of a qualified psychiatrist, registered psychologist, registered medical practitioner or other qualified person that assesses the likelihood of an eligible offender committing a serious terrorism offence (the “Risk Assessment Report”). These provisions refer to the making of an assessment based on the matters alleged in the supporting documentation, “if proved”; ie, on the assumption that those matters are proved. The nature of such an assessment was explained by Johnson J in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [97] to [103]. I adopt that explanation.

7. [9]

   The balance of these provisions call attention to the criteria for the making of an ESO in s 20 of the Act, which provides:

8. [10]

   In light of the matters I have already stated, there is no issue that, in this case, ss 20(a) and 20(b) are satisfied. As for s 20(c), it is said by the State that the defendant is a “convicted NSW terrorism activity offender”, as defined by s 10(1) of the Act which relevantly provides:

9. [11]

   In this case, the State contends that each of ss 10(1)(c)(i) and 10(1)(c)(ii) are satisfied. I will deal with the evidence of the defendant’s statements and associations shortly. It suffices to say that for the purposes of this application, I accept that both are satisfied.

10. [12]

    Section 20(d) of the Act poses the “unacceptable risk” test. This was addressed in the State’s lengthy submissions. It suffices to state that, on the one hand, the Court must have a high level of satisfaction, being that which inures in the phrase “high degree of probability”, while on the other there is a relatively low level of risk that is “unacceptable” in the context of “serious terrorism offences”, given the potential for widespread carnage from the commission of such offences.

11. [13]

    Otherwise, I note that in determining whether to make an ISO or an ESO, regard must be had to the criteria in s 25(3) of the Act, which will be addressed.

Background

1. [14]

   It is necessary to briefly describe the defendant’s background. The defendant is 30 years of age. The material suggests his upbringing was characterised by parental substance abuse and exposure to domestic violence. The State’s submissions accurately noted that the effect of the material suggests that he abused alcohol and drugs, and that, in his youth, he spent periods of time homeless as well as in juvenile detention and refuges.

2. [15]

   His adolescence included occasions of self‑harm as well as suicide attempts. He was diagnosed with attention deficit hyperactivity disorder (“ADHD”). At one point, a psychiatrist who assessed him while he awaited sentencing for theft offences proffered a preliminary diagnosis that included substance use disorder and substance‑induced psychotic disorder.

3. [16]

   Since 2007, the defendant has accumulated a large number of convictions for property and violence offences. Between 2007 and 2011, he was sentenced to numerous control orders in the Children’s Court for a significant number of break and enter offences, as well as other offences that included car stealing, robbery, and assault police.

4. [17]

   In 2014, the defendant was convicted of affray. In 2015, he was convicted of five aggravated break and enter offences, as well as attempting to escape from lawful custody. For these offences, he was sentenced to full‑time imprisonment. In each of 2017, 2018, and 2019, the defendant was convicted of break and enter offences and received custodial sentences.

5. [18]

   In April 2020, the defendant was convicted of damaging property by fire, and received a sentence of 20 months’ imprisonment. The index offence was committed on 21 May 2019, while the defendant was serving sentences for these offences. Otherwise, I note the State’s submissions noted various instances of misconduct within prison by the defendant between 2020 and 2022.

6. [19]

   According to the risk assessment report, which bears the date 23 August 2022, sometime in either 2019 or 2020 the defendant converted to Islam while he was detained in the High Risk Management Correctional Centre at Goulburn. The same report notes that since that conversion, his commitment to practising Islam has fluctuated. The most recent report, from January 2022, states that he informed prison staff that he had returned to practising Islam.

Statements Advocating Support for Terrorist Act of Violent Extremism

1. [20]

   As noted, one part of the definition of “convicted NSW terrorism offender” concerns any statement made advocating support for a terrorist act of violent extremism.

2. [21]

   The State’s submissions identified the statements relied on as follows. xxx xxxxx xxxxxxxx xxxx, xxxxxx xx xxxxxxxxx xxxx xxx xxxxxxxxxxx xxxxxxxxxxxx xxxxx (“xxx”) xxxxxx xxxxxxxxxx xxxxxxxx xx xxxxxx xxxx, xxx xxxxxxxxx xxxxxx xxxx xx xxxx xxxxx xx xxx xxxx xxxxxxx, xxxxxx xxx xxxx xxxx xx xxx xx xxx xxxxxxxxxxxx xxxxxx xx xxxxxxxx, xx xxxxxxx x xxxxxxxxx xxxxxx xxxx xxxxxxx xx xxxxxxxxxx xxxxxxxx xxx xxxxx xxx xxxxxxxxxx xxxxxxxxx.

3. [22]

   xxxx xxxxxxxxxx xx xxxxxxxxxxx xx xxxx xx xx xxxxxxxx xxxx, xxxxxx xxxx xxxxxxxxx, xxx xxxxxxxxx xxx xxxxxxxxx xxxxxxxx xxxxxxxxxx xx xxx xxx xxxxx xxxxxxxxx x xxxxxxxxx xxxxxxxxx xxxxxx. xxx xxxxxxxx xxxxxxxx xx xxx xxxxxxxxxxx xxxxxxxx xxxx xxxxx xx x xxxxxxxxxxx xx x xxxxxxxx xxxx xxxxx xxxxxxx xxx xxxxxxxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxx xxx xxx xxxxxxx xxx xxxxxxxxxx xx xxxxxxxx xxxx xxxxxx.

4. [23]

   xx xxxx xxxxxxxxxxx, xx xx xxxxxxxxx xxxx, xxx xxxx xxxxxxxxxx x xxxxxxxxx xx xxx xxxx xxxxxxxx xx xx x xx(x)(x)(x), xxxx xxxxxxxx xx xxxxxx xxxxxxxxxx xx x xxxxxxxxxx xxxx, xxxxxxxxxx, xxx xxxx xxxxx xx xxx xxxxxxxxx xx xxx.

5. [24]

   A second statement nominated by the State concerns a statement made by the defendant on 8 May 2020, during a stand-off with correctional services officers, which included him referring to an officer that “I’m going to fucking cut his fucking head off fuck yous, terrorism fucking fuck yous”.

6. [25]

   Again, whether this particular statement truly has any terrorist connotation was in dispute on this application in that the surrounding material indicates that it was said during a stand-off between the defendant and correctional services officers. There is some reason to believe that it represents more a form of loss of personal control on the part of the defendant, rather than some considered statement with a relevant political connotation.

7. [26]

   A further statement relied on by the State is a letter sent by the defendant on or about 19 October 2020, in which it is contended he referred to his preparedness to start a holy war against correctional officers. The State also relies on some statements made by the defendant in a further letter sent on 18 November 2020, in which the State contends he expressed support for jihadist terrorism in France and a willingness to be martyred.

8. [27]

   At this point, it suffices to state that, within the constraints of s 27 of the Act, I accept that, xxxxxxx xxxxx xxxx xxxxxxxx xx xxxxxx xxxx, the State’s submissions reflect the effect of the documentation and satisfies the test in s 10(1)(c)(i) of the Act.

Associations with Persons that Advocate Support for Acts of Extreme Violence

1. [28]

   As noted, s 10(1)(c)(ii) of the definition of “convicted NSW terrorism activity offender” refers to “associations with persons who advocate support for terrorist acts or extremist violence”. An agreed statement of facts was tendered on the application, which identified two convicted terrorists who the applicant spent time with in Goulburn Correctional Centre, and with whom he has corresponded, namely, K and A.

2. [29]

   The agreed facts recount the terms of 60 letters passing between the defendant and K between June 2019 and December 2021. The correspondence appears to principally concern matters of religion. There is no doubt that, in the correspondence, K advocated an extreme, fundamentalist version of Islam. It is known from other material that was tendered, that K is a person who advocates extremist, religious-based violence.

3. [30]

   The agreed facts also record the effects of 20 letters passing between the defendant and A, sent between June 2019 and July 2021, to broadly similar effect. I note that in correspondence between the defendant and A, being the letter dated 18 November 2020 to which I have already referred, the defendant stated, “I’ll be honest, with all that is happening in France, they deserve it and I hope they suffer more for attacks or what they are saying about the messenger”. Even without the benefit of an expert opinion concerning the effect of this correspondence and other material, this passage appears to involve the defendant articulating his support for terrorist attacks in France.

4. [31]

   Within the State’s submission, there was a contention that some material seized during a search of the defendant’s cell on 27 August 2021, revealed several Islamic books, notes and other materials which were said to involve an advocacy for violent extremism. However, this contention was based upon a passage from an expert’s report which has since been corrected. It seems to be accepted that the material that was seized does not so advocate, although it does expand upon a fundamentalist view of Islam.

Risk Assessment Report

1. [32]

   The risk assessment report was prepared by a psychologist. Much of its contents have already been referred to. The psychologist did not have the benefit of an interview with the defendant. He declined to be interviewed.

2. [33]

   The report addresses the defendant’s involvement in custodial‑based rehabilitation programs over the years. For example, in 2015 he enrolled in the Explore, Question, Understand, Investigate, Practice Succeed (“EQUIPS”) addiction program, but was unable to participate due to relocating to a protection unit. However, he completed the program the following year.

3. [34]

   Of more significance is that the defendant has been engaged with the Proactive Integrated Support Model (“PRISM”), which is a multidisciplinary state‑wide custody‑based service addressing offenders who are identified in custody as being at risk of, or promoting, radicalisation or violent extremism.

4. [35]

   According to the report, the defendant was initially referred to PRISM for demonstrating behavioural indicators of radicalisation, and due to his associations. He commenced the intervention phase on 24 August 2021 and has “remained engaged since that time”. The author of the report notes that, overall, his participation and engagement is noted in positive terms, with the caveat that his engagement has, at times, been described as “superficial”.

5. [36]

   As its name implies, the risk assessment report contains a risk assessment concerning the defendant. The capacity of the author to make that assessment was limited by the fact that the defendant refused to be interviewed. In the submissions filed on behalf of the defendant, it was submitted that this diminished the weight to be attached to the report. However, in the context of a risk assessment, the defendant’s refusal to engage with the author of that report is a factor that suggests the relevant risk is heightened, not lessened.

6. [37]

   Under the heading “risk scenario”, the author states that the defendant’s associations and connections to individuals within custody who espouse views supportive of violent extremism has been identified as a primary risk factor. The author notes that his risk profile suggests that his “primary vulnerability” is that of susceptibility to influence from others.

7. [38]

   This is expanded upon by identifying aspects of his personality which render him vulnerable to manipulation by those who advocate extremist violence and terrorism activity, including a change in his behaviour or attitudes in line with an extremist ideology or group, his verbalising beliefs that justify the use of violence on the basis of religion, increased expressions of perceived grievances or mistreatment by others, the seeking‑out of extremist materials, engagement with illicit substance to manage his emotional experience and self‑medicate, along with increased hostility and impulsive behaviours.

8. [39]

   The author notes that the defendant has, at times, also expressed a dissatisfaction with the Australian national identity and that he appears to present with minimal protective factors which would assist to mitigate his risk of radicalisation and engagement in violent extreme activities.

9. [40]

   The author provides the following assessment of the risk posed, noting that, in the context of the Act, the relevant risk is the commission of terrorism‑related offences and violence:

10. [41]

    In relation to risk management, the author suggests that if the defendant is released, he be subject to various conditions under his ESO, a matter I will return to.

11. [42]

    xx x xxxxxxxxxxxx xxxxxxxxxxxxx xxxx xxxxxxxxxx xxxxxx, xxxxx xx xxxxxxxxx xxxx, xxx xxxxxx xxx xxxxx xx xxxxxxx xxx xxxxxxxxxxxx xx xxx xxxxxxxxx xx xxx xxxxxxxxxx xxxx xx xxx xxxxxxxxxxx xxxxxxxx xxxxxxxxxxx xx xxx xxxxxxxxxxx xxxxxxxxxxx xx xxxx xxx xxxx. xx xxxx xxxxxxxxxx, xxx xxxxxx xxxxxxxx xxxx xxxx xxxxxxx xxxxx xxxxxxx x “xxxxxx xxxxxxxxx xx xxx xxxxxxxxx xxxxxxxx xxxxxxxxxx xx xxx xxx xx xxxxxxxx” xxx xxx xxx xxxxxxxx xxxx xxxxx xxxxxx xxx xxxxxxxx xxxxxxxxxx xx xxx xxxxxxxxxx x xxxxxxx xxxxxxxxx xxxxxxx xx xxx xxxx xxxxx xxxxxxxxxxx.

12. [43]

    x xxxxxxxxxxxx xxxxxxx xxxxxxxxxxxxx xxxx xxxxxxxxxx xxxxxx xxxxx xx xxxxxxx xxxx xxxxxxxxx xxx xxxxxxxx xxxxx xx xxxxxxx xxxxxxx xx xxx xxxxxxxxxx xxxx xxx xxxx xx xx xxxxxxxx. xxx xxxxxx’x xxxxxxx xx xxxxxxxxx.

Risk Management Reports

1. [44]

   Tendered on the application was a “risk management report” addressing the extent to which the defendant can be managed in the community on his release. The report notes that, on his release, the defendant would have limited community support, no identified employment and only limited family support given that this appears to be limited to his mother, who lives interstate.

2. [45]

   The report notes that, overall, the defendant’s history while under supervision was poor. The report notes the risk assessment report’s assessment of his risk of engaging in violent extremist behaviour. It also notes the results of two other assessments. First, it notes that an assessment was undertaken using the “Level of Service Inventory - Revised” (“LSI-R”) model on 2 July 2019, which found the defendant to fall in the category of those with a high risk level of general re-offending. Second, the report noted that a psychological Violent Risk Scale assessment was undertaken on 23 August 2020, which also assessed the offender to be in the high risk category of violent re-offending.

3. [46]

   The risk management report outlines the proposed approach to supervision which includes face‑to‑face interviews with enforcement officers, home visits, and a monitoring of contacts. The report addresses the various conditions sought to be imposed, which is a matter I will return to.

4. [47]

   In relation to the report’s conclusion about a lack of employment and family support, tendered on this application was material from xxx xxxxxx xxxxxxxx who conducts a xxxxxxxxxxx business and who has offered the defendant employment. Xx xxxxxxxx has also offered to allow the defendant to live with him and his family. As I understand it, the proposal for the defendant to live with xx xxxxxxxxx has been approved. The proposal for him to work in the xxxxxxxxxxx business has, I am told, been “tentatively approved.” As will become clear, I am acting on the basis that it will be approved.

5. [48]

   The State tendered a NSW Police ESO management report dated 25 August 2022, which also addressed the proposal to supervise the defendant in the community, and the appropriate conditions that might attach to an ISO or ESO.

6. [49]

   I have considered both of the risk management reports.

Other Psychiatric and Psychological Reports

1. [50]

   Included in the material tendered in this application, was a psychiatrist report prepared in May 2015 and a clinical psychologist report prepared in March 2019, apparently for use in sentencing. The psychiatrist’s report noted that the defendant did not manifest symptoms of psychosis, anxiety, a psychotic disorder or a cognitive disorder. Nevertheless, the psychiatrist opined that, given the defendant’s developmental difficulties and behavioural problems, it was likely he had a personality disorder with antisocial traits. The psychologist report did not add to the assessment.

Other Matters

1. [51]

   At this point, it is appropriate to note certain matters referred to in the submissions of counsel for the defendant. Although those submissions accepted that the pre-conditions to the making of an ISO were satisfied, counsel nevertheless pointed to various matters which it said bore on the level of risk posed by the defendant, and in turn, the “appropriate” conditions that should be imposed.

2. [52]

   First, counsel noted correctly that the defendant has not been convicted of any terrorist offence, nor is there anything to suggest that any political, ideological or religious motive attached to any of his previous convictions.

3. [53]

   Second, it was, in effect, submitted that it was only the defendant’s association with persons involved in terrorism from his time in custody, that gives rise to the apprehension of a risk. It was submitted that there was nothing to suggest that such an association exists with persons in the community.

4. [54]

   Third, it is submitted that, while the relevant risk for the purpose of the Act is identified in the risk assessment report as “moderate”, xxxx xxxx xxx xxxxxxx xx xxxx xx xxxxx xxxxx xxx xxxxxxxxxx xxx xxxxxxxxx xxx xxxxxxxx, xxx xxx xxxxxxx xx xxxxxxx xx xxx xxxxxx, that assessment is in need of modification.

5. [55]

   Fourth, it was submitted that any concerns about the defendant’s vulnerability to extremist manipulation is moderated by his actions, xx xxxxxxxxxx xxxxxxxxxx xx xxx xxx.

6. [56]

   Fifth, it was submitted that the material demonstrates that the defendant has a combination of employment and accommodation available to him upon his release.

7. [57]

   Sixth, it was submitted that his behaviour in custody has improved considerably.

8. [58]

   There is some force in all of these points, and I have considered them. One difficulty in attributing any great weight to them is exemplified by the contention that one of the flaws in the risk assessments report is that it was prepared without speaking to the defendant. As noted, the reason that occurred is that the defendant refused to speak to the author. In the context of risk assessment of the commission of a terrorist offence, a refusal of the defendant to participate in the preparation of a risk assessment report, is, as I have said, a matter that exacerbates risk. Amongst other matters, it casts doubt on attempts to contend that any risk posed by the defendant has now ameliorated, because of his recent actions. Otherwise, I note the defendant’s submissions take issue with various aspects of the risk assessment report, xxxxxxxxx xxx xxxxxxxxxxxxxxxx xx xxxx xxxxxxxx xx xxxx xxx xx xxx xxxx. I have already addressed those matters.

Unacceptable Risk

1. [59]

   Section 25(3) of the Act obliges the Court to consider various factors in determining whether or not to make an ESO and, in turn, an ISO. In large part I have already addressed those factors, but briefly I will just note them. I have already outlined the effect of the assessment prepared by a registered psychologist (s 25(3)(b)). The summary of the reports to which I have referred includes the various assessments based on actuarial tools of the risk posed by the release of the defendant (s 25(3)(c)). I have summarised the effect of the reports addressing whether the defendant can reasonably and practicably be managed in the community (ss 25(3)(d) and (e)) . I have also made reference to the various rehabilitation programs and initiatives that the defendant has undertaken (s 25(3)(f)).

2. [60]

   So far as s 25(3)(h) is concerned, namely the likelihood the offender will comply with the obligations of an ESO, his history of supervision in the community does not bode well for that assessment, although its effectiveness will no doubt, in part, depend on the terms of the supervision order, and the intensity of the supervision that is conducted. I have already addressed the defendant’s criminal history which encapsulates the view of the sentencing court (ss 25(3)(j) and (k)). The summary that I have proffered also addressed his relevant beliefs or commitments, noting that they have fluctuated over time (s 25(3)(l)).

3. [61]

   Overall, the risk that emerges from the material is that which is commensurate with a person who has been prepared to act violently and is vulnerable to being manipulated to violent ends by others.

4. [62]

   I return to the terms of s 20(d) and the overriding purpose of the Act, specifically “ensur[ing] the safety and protection of the community”. The defendant’s history of offending and his susceptibility to manipulation results in him as presenting a risk of committing a serious terrorism offence. Given the nature of serious terrorism offences, a risk of such an offence being committed does not have to be very high for it to be unacceptable. The degree and extent of the defendant's association with radicalised persons, and his own utterances, are sufficient to make it so in this case. In terms of the position, absent supervision, the defendant presents as someone whose risk can be addressed by supervision and regrettably that must, at least in the first instance, be a relatively close form of supervision. The defendant is not a committed extremist but presents as someone very susceptible to being manipulated by committed extremists.

5. [63]

   It follows that I am satisfied that the matters alleged in the supporting documentation, would, if approved, justify making an ESO. Accordingly, subject to considering the various conditions, the interim orders sought by the State will be made.

Conditions

1. [64]

   Section 29(1) of the Act empowers the Court to direct an eligible offender to comply with such conditions as the Court considers “appropriate.” Section 29(1)(A) of the Act provides that, unless the Court orders differently, an ESO or ISO must include certain specified conditions.

2. [65]

   The discussion over the terms of the conditions represented the real debate in these proceedings. One of the many unfortunate and unremedied features of the Act is that it prevents the parties reaching agreement on the satisfaction of the various steps in the legislation and thereby relieving the Court from having to consider them so that there can be more focus on such matters as the conditions that are in dispute.

3. [66]

   Instead, the Act operates to require all the steps in the process of making an ISO or an ESO to be undertaken, even if they are not in dispute. This occurs in a context where, through the actions of the State, and the time mandates of the legislation, these matters inevitably have to be dealt with quickly. Despite this being made clear on numerous occasions, there has been no real attempt to address these aspects of the legislation. This means that, for the Court to discharge its functions, it is necessary to impose greater procedural burdens on the State as the party with carriage of the proceedings.

4. [67]

   The submissions of the parties addressed the approach to be adopted to the imposition of conditions in detail. It suffices to state the requirement that the conditions be “appropriate,” means that in the context of addressing future risk, the conditions are not confined to addressing only the specific risk that arises directly from the material (see Wilde v State of New South Wales [2015] NSWCA 28 at [53] per Beazley, McColl and Ward JJA).

5. [68]

   At the outset, I note that Senior Counsel for the defendant, Ms Stares, submitted that the highly intrusive style of conditions sought by the State should not be made.

6. [69]

   Ms Stares submitted that to do so would be counterproductive, in that they are likely to seriously impede the defendant's rehabilitation, especially by exposing him to prosecution for technical breaches of highly intrusive conditions. Ms Stares submitted that it was preferable to impose the type of conditions that would have been imposed if the defendant had been released on parole for his offence of reckless wounding, before that parole was cancelled. These submissions have significant force. The penalties that can, and sometimes are, imposed for the breach of conditions are significant, sometimes bordering on severe, and they can operate to set up offenders to fail with further incarceration to follow.

7. [70]

   Nevertheless, I ultimately agree with Senior Counsel for the State, Ms Single, that the sort of conditions imposed for parole compared to those imposed under the Act, operate for difference purposes. In particular, the usual form of conditions imposed for parole are not properly characterised as being primarily directed to prevention of the type of risk envisaged by the Act materialising. This in turn led to a debate about the content of each of the conditions.

8. [71]

   One theme of the State’s submissions was that any problem implementing the conditions can be addressed by common sense and accommodation on both sides. While that contention has a superficial attraction, the difficulty is that there are penal consequences that attach to even a technical breach. This Court cannot supervise the approach taken to the punishment of breaches. It cannot approach the matter by simply hoping that some technical breach may not lead to a prosecution.

9. [72]

   With the assistance of counsel, the debate over the wording of the proposed 57 conditions became relatively confined. Given the time constraints, I will attempt to briefly summarise those debates and how I have resolved them.

10. [73]

    The first condition the subject of debate, concerned condition 1, which seeks to make the defendant subject to the supervision and guidance of an enforcement officer with a requirement that they obey all reasonable directions, including a direction in respect of providing a schedule of movements. Ms Stares submitted that, to the extent that the direction purported to enable the enforcement officer to require the defendant to provide a schedule of movements, it should not be made. Ms Stares noted that the defendant would, under the proposed conditions, be subject to electronic monitoring, and that proposed condition 3 required him to answer questions about his movements.

11. [74]

    Ms Stares submitted that, in circumstances where the defendant will work in a xxxxxxxxxx business, a requirement to provide a schedule of movements could be particularly difficult, given the potential need to move to a different work site at short notice. I accept that there is force in what Ms Stares says, however, the difficulty is that neither condition 3, which is the requirement to answer questions about where the defendant has been or condition 10, which enables electronic monitoring, gives the enforcement officer any advanced notice of the defendant's potential movements, a matter that is important in terms of addressing risk.

12. [75]

    The concern about his work is nevertheless, I accept, a real one. I think the only way to accommodate this is to modify the conditions so that it refers to “anticipated” movements; this allows the defendant to use his best endeavours to indicate where he expects to be, bearing in mind the potential that there may be, in the course of a working day, reason why he is called at short notice to another work site.

13. [76]

    Proposed condition 4 seeks to require the defendant to carry a specified mobile phone and answer it, as soon as reasonably practical, when called by an enforcement officer. Ms Stares’ submissions in opposition to this condition were principally focused upon the practicalities of complying while the defendant was working xx x xxxxxxxxxx.

14. [77]

    A requirement to carry a mobile phone complements a requirement to wear electronic monitoring equipment. Instead of any discrepancy in the monitoring of the defendant electronically automatically initiating some form of law enforcement response, experience suggests that a call to the defendant may explain why something that has come up on the system can be explained.

15. [78]

    That said, it can be accepted that, if the defendant maintains his work xx x xxxxxxxxxx, there will have to be occasions where he could not reasonably be expected to always have a mobile phone with him. Doing the best I can, I think that can be accommodated by the inclusion of the words “unless he is at work and it is not safe to do so” after the requirement to carry the phone at all times in the opening part of the condition.

16. [79]

    Proposed condition 5 seeks to preclude the defendant from purchasing, hiring or driving any motor vehicle, or causing someone else to do so on his behalf, without the prior approval of an enforcement officer. Ms Stares submitted that this was not related to any form of risk identified in the material. I do not agree. The commission of terrorism offences by the use of a motor vehicle is well established. The obtaining of intelligence about someone who is said to be at risk concerning the vehicle that they drive serves the purposes of risk management.

17. [80]

    The wording of the condition is unfortunate. I propose that it be redrafted so that, in terms of the use of a vehicle, once an enforcement officer has approved the use of a vehicle, then the defendant may be able to drive it thereafter, bearing in mind that he will be electronically monitored, and he will have to provide a schedule of anticipated movements.

18. [81]

    Accordingly, I would propose the deletion of the words “or drive” in proposed condition 5, and the inclusion of an additional condition 5A that reads: “The defendant must not drive any vehicle unless the use of that vehicle by the defendant has been approved by the enforcement officer”.

19. [82]

    Proposed conditions 7, 8 and 9 deal with financial oversight. Proposed condition 8 seeks to preclude the defendant from entering into a transaction for more than $1,000 without informing the enforcement officer. Proposed condition 7, which is not opposed, requires him to provide information about his income and expenditure.

20. [83]

    It was submitted that the amount of $1,000 was too small in the context of the possibility the defendant may be making weekly or monthly rental payments for an amount in excess of that. I think that can be accommodated by the substitution of the figure $2,500 for the figure of $1,000.

21. [84]

    Ms Stares opposed condition 9, which precludes the defendant from transferring funds outside of Australia without the approval of an enforcement officer. In the context of the well‑documented connection between domestic terrorism and overseas insurgencies, I consider that condition 9 is appropriate.

22. [85]

    Proposed condition 13, which reflects a condition referred to in s 29(1A) of the Act, obliges the defendant to permit an enforcement officer to visit the defendant at the defendant’s residential premises at any time and, for that purpose, to enter the premises at that address. Ms Stares submitted that that should allow for consideration of the interests of other residents, including children. Ms Stares suggested the addition of the words “in a way that causes least disruption to residents of the premises”. The State did not oppose that change, although I would insert the word “other” before residents.

23. [86]

    Proposed condition 14 is a curfew condition requiring the defendant to be at his approved address between 10pm and 6am. The rationale for this condition was said by Ms Single to be that much of the defendant’s offending was committed at night, this presumably, being a reference to the break and enter offences. An ISO under this Act is not made to prevent the commission of “offences”. Instead, it addresses a risk of the commission of terrorism offences generally. One could argue that if the defendant was to return to committing break and enter offences, then that may bear upon the risk of committing offences with an ideological, political or religious motive. Such reasoning seems to me very tenuous, in light of the material that was tendered.

24. [87]

    When regard is had to the fact that the defendant is a 30‑year‑old man and is already subject to an extremely high degree of supervision, including electronic monitoring, I am not satisfied that it is “appropriate” to impose a curfew. I decline to do so.

25. [88]

    Proposed condition 15 seeks to preclude the defendant permitting any person to enter, remain, or stay overnight at his approved address without the prior approval of an enforcement officer. It also provides that, if another person the defendant is approved to reside with permits a third party to stay overnight, then the defendant must notify the enforcement officer of that third party’s attendance.

26. [89]

    The proposed condition is said by Ms Stares not to be viable, given that the defendant will live with xx xxxxxxxx and his family. I am not convinced that is correct, in that it follows from the approval of his stay with them that each of the persons in that household are persons who received permission. That said, the highly intrusive nature of this condition is manifest. However, in the context of a concern about the defendant being manipulated by extremists then, with some hesitation, I am satisfied that this condition is appropriate, although I would add the words “within a reasonable time” at the end of the condition.

27. [90]

    Condition 16 purports to preclude the defendant from signing or otherwise entering into any lease, mortgage or hire agreement without approval of an enforcement officer. Ms Stares opposed the condition being imposed partly because it was submitted that if the relevant agreement related to residential premises, then that would be caught by the other conditions. It seems that this condition is directed to agreements concerning storage facilities. In the context of terrorism offences, one can understand the concern about a person having a secret storage facility. I think this is best accommodated by amending the condition so that it reads “the defendant must not sign or otherwise enter into an agreement to store property without prior approval of an enforcement officer.”

28. [91]

    Condition 17 seeks to prevent the defendant from frequenting or visiting any place or district specified by an enforcement officer. Ms Stares opposed this on the basis that it was suggested that the relevant risk should be calibrated to the persons he associated with in custody, and not to any person in the community or any such place. This brings to the fore the observation that I made at the outset in relation to conditions, namely that appropriate conditions are not simply those that are directly calibrated to the precise risk that has been identified. One can well envisage a circumstance where there is a heightened concern within law enforcement about the commission of a terrorism offence at a particular location, which would require steps to be taken to protect the public by directions being given to persons placed on ISO’s that they are not to attend that place. Equally, one can understand if an intelligence assessment is that a particular locale or institution, rather than a particular person, is a hotbed for radicalisation, that a direction be given to a person such as the defendant, that they not attend that place. The proposed condition is appropriate.

29. [92]

    Proposed condition 20 purports to preclude the defendant from entering within one kilometre of any point of departure for an international destination, such as an airport, except in accordance with the approved schedule, or otherwise approved by the enforcement officer. Ms Stares submitted that this should at least be modified so it did not preclude the applicant travelling into those zones for the purposes of undertaking employment, or travelling directly to and from employment. The State countered that was acceptable provided the movement was in accordance with the schedule of movements. The reference to the schedule of movements becomes unwieldly, given that it will only be an anticipated schedule which allows for the defendant to be redirected to a particular worksite at short notice. Otherwise, I think the prospect of the defendant working on a worksite within one kilometre of points of international departure is something that may have to be precluded by the conditions. However, I do not accept that the same applies to preventing him directly travelling to and from employment through such a zone.

30. [93]

    Accordingly, the condition will be modified so that it will read as follows: “The defendant must not go within one kilometre of any point of departure for an international destination, such as Sydney and Bankstown airports and Sydney Co Passenger Terminal, except for the purpose of travelling directly to and from employment, or as otherwise approved by the enforcement officer.”

31. [94]

    The next contentious condition is condition 31, which prevents the defendant from possessing or using any particular devices that constitute weapons. Ms Stares opposed the condition on the basis that it is already addressed by condition 30 which is expressed in more general terms. If that submission was rejected, issue was taken with so much of proposed condition 31 that precludes the defendant from ever being in possession of a knife, given the domestic or work purposes that that may be used for. I consider it appropriate to specify particular forms of weapons in condition 31. Moreover, I accept the State’s modification to the prohibition of the use of a knife, so that it does not apply to knives possessed or used for a domestic purpose at an approved residency, or during the course of employment.

32. [95]

    The next two contentious conditions are proposed conditions 38 and 39. Condition 38 obliges the defendant to notify an enforcement officer of his intention to change employment before the change occurs, or otherwise at his next interview with an enforcement officer. Proposed condition 39 precludes the defendant from starting, on his own initiative, any job, volunteer work or education without the approval of an enforcement officer. Ms Stares submitted that, to the extent this deals with changing work, it was impractical. She pointed to the time it had taken the Corrective Services to only give tentative approval to his work xx x xxxxxxxxx, which she submitted was six months. She submitted that, in the context of someone such as the defendant, who will undertake itinerant or low-skill work, to impose this requirement would effectively preclude him from ever working. I think there is some force in that submission. One has to bear in mind, that even without these conditions, if the defendant is pursuing a form of employment that Corrective Services is not satisfied with, then they possess ample powers elsewhere in their conditions to preclude him from taking the position up.

33. [96]

    I think this is best addressed as follows: In condition 38, the words “if practical” will be deleted, so that there is an obligation on the defendant to notify of any intention to change his employment. Condition 39 in its current form will be deleted. Instead, it will provide the defendant must not commence an educational or religious course without giving the enforcement officer 14 days’ notice of his intention to do so. Condition 38 will oblige the defendant to notify of any intention to change his employment. This means that the enforcement officer will have ample powers to obtain information about that proposed employment. If the enforcement officer is not satisfied with it, they can exercise powers to prevent the defendant taking it up. The same applies in relation to any relevant educational or religious course.

34. [97]

    The debate over proposed condition 41 is indicative of the level of detail that these conditions impose. Condition 40 enables an enforcement officer to give a reasonable direction to the defendant about his use of communication, internet access and use of electronic devices. Condition 41 precludes the defendant from accessing, using or causing another person to access or use on his behalf, various items, unless they have been disclosed and approved by the executive officer. There follows a list of a number of electronic devices, as well as various forms of software such as “apps” and social media accounts.

35. [98]

    Ms Stares submitted that condition 41 in its entirety should be rejected, given the power in condition 40. The connection between the use of electronic devices, social media and the internet generally, and terrorism is well documented. At this point, I consider a condition such as condition 41 is appropriate.

36. [99]

    A specific concern is raised about one part of condition 41, which precludes the use of “any internet service provider account”. It is said that this condition would operate so as to preclude the defendant’s mobile phone connecting with publicly available free Wi-Fi services in public spaces as he moved through them. I am not entirely sure that is correct. However, the short answer is to carve out an exception, so that the words “(other than a publicly available free Wi-Fi service)” is to be included after (f).

37. [100]

    Proposed conditions 47 to 51 deal with the defendant’s associations. Proposed condition 50 seeks to preclude the defendant from contacting, attempting to contact or communicating with or associating with any person in custody or any person he knows or reasonably suspects is subject to a control order, on parole, or subject to a supervision order without prior approval of an enforcement officer.

38. [101]

    The concern raised by Ms Stares is that, in circumstances where the defendant is working in the construction industry, the real potential exists that he may have some association or contact with such persons. Further, given the defendant’s personal circumstances, concern was raised about imposing an objective requirement such as “reasonably ought to know” in such a condition. The State proposed an alternative condition, one which I will modify as follows so that condition 50 will read:

39. [102]

    Proposed condition 56 seeks to preclude the defendant engaging in any act, or attempting to influence others to engage in any act, that would provide support for or “promote extremist ideologies or acts of violence”. Ms Stares submitted that the word “violence” should be replaced with “violent extremism”, given that the Act is directed not to acts of violence per se but to terrorism associated violence. I agree with that. Further, I raised with the parties a difficulty about the phrase “extremist ideologies”. This phrase is not defined in the definitions. It is one in which, given history, reasonable minds could well and truly differ about. I propose to amend condition 56 so that it refers to “would provide support for or promote terrorist acts or violent extremism”.

40. [103]

    Proposed condition 57 is to similar effect, in that it seeks to preclude the defendant from (a) purchasing, possessing, accessing, et cetera, “extremist material” or (b) other material as directed by the enforcement officer for reasons related to concerns regarding violence, or for reasons related to his risk of committing a serious terrorism offence.

41. [104]

    In relation to (b), and contrary to Ms Stares’ submissions, I consider that condition is appropriate. I accept that there is a need for an enforcement officer to step in, perhaps at an early stage, in relation to material that is not yet advocating the commission of serious terrorism offences, but there is reason to believe that it will do so.

42. [105]

    In relation to (a), the concern raised is not so much the phrase “extremist material”, which is defined in the proposed conditions, but the potential for an unwitting breach of this provision, in that the defendant may purchase a book which may contain such material but only on a close inspection. This all takes place in the context of the Criminal Code (Cth), containing a very detailed set of offences relating to such material. I consider that the concern is best addressed by adding to the words in (a), “that he knows or believes promotes terrorist acts or violent extremism”.

43. [106]

    [Counsel referred his Honour to proposed condition 37.]

44. [107]

    Proposed condition 37 seeks to require the defendant to agree to his healthcare practitioners and service providers sharing such information with each other and with an enforcement officer that, in the opinion of an enforcement officer, relates to the defendant’s risk of committing serious terrorism offences. This proposed condition is directed to ensuring healthcare practitioners, such as, for example, a psychiatrist, provide to the enforcement officer anything that the enforcement officer considers in their consultations may relate to a risk of committing a serious terrorism offence.

45. [108]

    Ms Stares opposed it on the basis that it would effectively obliterate any degree of confidentiality between the defendant and, say, a psychiatrist or a psychologist, and that that would in turn seriously impede any genuine attempts by the defendant to obtain help from those professionals. I agree.

46. [109]

    In circumstances where an enforcement officer will not otherwise be aware of what it is that a defendant discussed with his psychiatrist or his psychologist, if this power was conferred on the enforcement officer, it would mean that, in practical terms, all of the defendant's consultations would be required to be disclosed, rendering them effectively pointless.

47. [110]

    Each of the relevant healthcare practitioners has their own professional obligations, as do lawyers, who receive disclosures from a patient or client which they believe may give rise to a risk of harm to others. Accordingly, the form of condition 37 that I approve will be one that refers to disclosure in the opinion of the healthcare practitioner, not the opinion of the enforcement officer.

Conclusion

1. [111]

   Accordingly, I make the following orders: