State of New South Wales v Barez (Final)

By summons filed on 16 September 2019 the State of New South Wales (“the plaintiff”) applied for orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) in relation to Mr Edris Barez (“the defendant”).

On 15 November 2019, Fullerton J made orders pursuant to ss 27 and 29 of the THRO Act, subjecting the defendant to an Interim Supervision Order (“the ISO”) and, pursuant to s 24 of the THRO Act, appointing a psychologist and psychiatrist to conduct examinations of the defendant and directing the defendant to attend those examinations: State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589.

In accordance with Fullerton J’s orders, the following reports have been received:

On 8 August 2019, Ms Rachel Terry, a registered psychologist, produced a Risk Assessment Report (“the RAR”) addressing the likelihood of the defendant committing a serious terrorism offence. The conclusions expressed by the Court appointed experts accord broadly with those contained in the RAR. Those conclusions appear below:

By way of final relief, the plaintiff sought the following orders:

On 18 February 2020, after hearing the parties, the Court made the following orders:

Those orders shall hereinafter be referred to as “the orders”.

These are the Court’s reasons for that decision.

The defendant is a 26-year-old Australian national. His parents migrated to Australia from Afghanistan before the he was born. The defendant appears to have always been of the Muslim faith.

On 15 March 2013, the defendant was sentenced to a total period of imprisonment of 8 years and 6 months for two counts of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) and the common law offence of conspiracy to commit armed robbery. The sentence expired on 18 November 2019. The total non-parole period for the offences was 5 years and 6 months, expiring on 18 November 2016 (on which date the defendant was released to parole).

In February 2014, while in custody, the defendant had the letters “AL QAEDA” tattooed in black ink along the length of his left arm. Subsequently, he had made statements acknowledging his past support for that organisation, which is a proscribed terrorist group.

The defendant had a number of associations with persons of interest to anti-terrorism authorities. These associations, together with his history of commitment to extremist ideologies, fundamentalist adherence to Islam, and demonstrated ability to carry out planned and instrumental acts of violence involving the use of firearms, led to a conclusion being reached in the RAR that the defendant presented a moderate risk of extremist violence or terrorist offending.

The plaintiff relied on the following evidence in support of the application for final relief:

The defendant relied upon the affidavits of:

Dr Shanahan and LSC Kirk were required for cross-examination, as was the defendant.

The primary object of the THRO Act is to “provide for the extended supervision and continuing detention of certain defendants posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community” (s 3 of the THRO Act).

In making a determination, the Court is required to consider the matters set out in s 25(3) of the THRO Act. It is necessary to have regard to the preconditions for the making of any such order under s 20 of the THRO Act.

There was no contest that the statutory preconditions to the making of an ESO are set out in s 20(a)-(c) of the THRO Act. By those preconditions, the plaintiff is required to satisfy the Court of the following:

The Court must also 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 under an extended supervision order (s 20(d) of the THRO Act).

Section 7 of the THRO Act defines an eligible offender as one who is:

A “NSW indictable offence” is defined in s 4(1) of the THRO Act to be an offence against the law of the State for which proceedings may be taken on indictment.

The defendant is an eligible offender as:

At the time the summons brought by the plaintiff was filed, the defendant was serving a sentence for the offence of robbery while armed with a dangerous weapon. As mentioned, his sentence for that offence expired on 18 November 2019. Thus, the defendant was in custody or detention for the purposes of s 20(a) of the THRO Act.

The procedural requirements in Pt 2 of the THRO Act were met:

Section 20(c) of the THRO Act provides as follows:

The defendant is a “convicted NSW terrorism activity offender” as that term is defined in s 10 (see s 20(c)(iii) of the THRO Act).

Section 10(1) of the THRO Act is in the following terms:

The defendant was serving a sentence of imprisonment for a NSW indictable offence. The remaining question, is whether the defendant falls within the provisions of s 10(1)(c)(i) or (ii) of the THRO Act. Section 10(1A) provides:

By s 4 of the THRO Act, the term “terrorist act”, as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code Act 1995 (Cth). There, the term is defined as follows (see s 100.1):

The subsections (2) and (3) referred to in the above definition read as follows:

In R v Lodhi [2006] NSWSC 584, Whealy J (at [75]) observed that the definition of “terrorist act” in the Criminal Code “postulates an action or threat of action of the widest possible kind”.

The term “violent extremism” is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines “extremism” as “[t]he holding of extreme political or religious views; fanaticism”. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views. In my view, that the inclusion of the term “violent extremism” was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, an act not directed at coercing the government or intimidating a section of the public.

In my view, the requirements of s 10(1)(c) of the THRO Act are satisfied in this case, in either or both, of two ways:

These will be considered in turn.

The definition of “advocating support” in s 10(1A) set out above makes clear that the term is intended to capture a broad range of conduct.

In February 2014, while he was in custody, the defendant had the letters “AL QAEDA” tattooed in black ink along the length of his left arm. At the time the tattoo was discovered, only the letters “ALQ” had been fully inked. Sometime between February 2014 and 30 April 2014, while still in custody, the defendant had the remaining letters filled in. Subsequent to the commencement of these proceedings, the defendant obtained a further tattoo that sought to cover the “AL QAEDA” tattoo.

Pursuant to cl 4 of the Criminal Code (Terrorist Organisation – Al-Qa’ida) Regulations 2019 (Cth), al-Qa’ida is a proscribed terrorist organisation. The involvement of al-Qa’ida in terrorist activities, including the September 11 attacks and the Bali bombings, is well known.

I accept the submissions by the plaintiff that the al-Qa’ida tattoo is a clear expression of support for that organisation and, substantially, the terrorist acts and violent extremism it has engaged in over a lengthy period.

Consistent with this, the defendant acknowledged in an interview with Ms Terry, conducted for the purposes of producing the RAR, that he had supported al-Qa’ida for a period of approximately two years, stating that he “didn’t know any better”. The defendant made similar concessions to Dr Eagle and Ms Dewson.

At about 9.00pm on 30 January 2017, the defendant was travelling as a passenger in a vehicle being driven by Mr Deen Zakarya when the vehicle was stopped by two police officers, one of whom was LSC Kirk.

The vehicle was stopped for a random breath test and because of an issue regarding the absence of P plates, a subsequent search of the car was conducted.

During the course of the traffic stop, Mr Zakarya became very aggressive. In contrast, the defendant tried to calm the situation and LSC Kirk confirmed under cross examination that the defendant behaved like “a gentleman”.

LSC Kirk gave evidence that he had a conversation with the defendant about the tattoo on his arm, asking “what’s with the tattoo?” He stated that the defendant said words to the effect of “it’s what I believe, everyone has a religion”.

Subsequently, LSC Kirk reported this conversation to Detective Trovato, who recorded it in an Intelligence Report Summary in the following terms:

The precise date on which LSC Kirk spoke to Detective Trovato is unclear, but LSC Kirk gave evidence that the conversation took place a day or so after the traffic stop and the document itself appears to have been prepared by Detective Trovato at some stage prior to 8 February 2017.

LSC Kirk also prepared a COPS Event report regarding the traffic stop. That did not make mention of the exchange regarding the tattoo. I accept LSC Kirk’s explanation that it was not his normal procedure to record in COPS changes in physical appearance unless the entry related to a charge being laid. I also accept that it is understandable that he concentrated on the behaviour of Mr Zakarya.

LSC Kirk was cross-examined on his account of the conversation with the defendant. The defendant gave evidence denying anything said to LSC Kirk regarding his tattoo. He was also cross-examined on this topic. Having carefully observed the evidence of LSC Kirk and the defendant, I prefer LSC Kirk’s evidence and, in particular, his account of the conversation with the defendant about the traffic stop for the following reasons:

The defendant did not deny the provisions of s 10(1)(a) of the THRO Act were met by the affixing of the tattoo in 2014, whilst the defendant was in a prison environment, but contented any support for al-Qa’ida was purely notional.

The tattoo, together with the defendant’s concessions in interviews with Ms Terry, Dr Eagle and Ms Dewson (to which I will further return) and to the statement by the defendant to LSC Kirk in the traffic stop on 30 January 2017, in my view, satisfies the requirements of s 10(1)(c)(i) of the THRO Act.

For completeness, I note that this conclusion is reinforced by the terms of s 10(1A)(a)(ii), by displaying the tattoo, the defendant is “using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism”.

Whilst not strictly needing to reach a conclusion, in this respect, I will deal with the satisfaction of this provision because of its connection with later argument.

The defendant conceded that he had associated with persons who have advocated or extended support to “relevant groups”. However, it was submitted that the criterion was easily met as the defendant need not even know of the associate’s act of support to satisfy the provision.

It may also be noted at this junction, the defendant submitted that, other than two of the defendant’s associations, none have their own ESO made against them and that the associations were not, thereby, a risk factor.

In any view, the defendant is a convicted NSW terrorism activity offender by virtue of his associations with persons who have advocated support for violent extremism and/or terrorist acts.

The THRO Act further defines the term “association” in s 10(1A)(b), which provides:

Prior to the insertion of s 10(1A)(b) of the THRO Act, N Adams J in State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 noted that the phrase “associated or otherwise affiliated with” is intended to capture a wide range of relationships (at [30]):

I will turn then to the respective associations for the purposes of this provision, although the associations are relevant to the later discussions as to whether the plaintiff has demonstrated that the provisions of s 20(1)(d) have been satisfied.

On 2 August 2019, police stopped a vehicle in Parramatta in relation to a traffic infringement. The defendant was driving the car. AB was in the passenger seat.

Inquiries by the Australian Federal Police also confirmed an association between AB and the defendant; as at 19 July 2019, the two were working together at Zentrix Carpentry.

On 6 October 2017, AB pleaded guilty to an offence of give/receive services to promote a s 119.1 offence (namely, the offence by Mr Elmir of entering Syria with the intention of engaging in a hostile activity), contrary to s 119.4(5) of the Criminal Code.

AB is a person who “is or was advocating support for any terrorist act or violent extremism”; he has been convicted of intentionally performing services to assist Mr Amin Elmir to enter Syria with the intent to engage in hostile activities aimed at, inter alia, overthrowing the Syrian government.

The defendant’s association with AB satisfies the requirements of s 10(1)(c)(ii) of the THRO Act.

Counsel for the defendant submitted that his uncontested evidence was that he had never associated with Mr Elomar, except for his meeting at the Body Punch boxing gym in Lakemba and a WhatsApp message pertaining to a horse riding/breaking business. He also accepted that he had met Mr Elomar whilst in custody.

On 4 July 2019, police executed a search warrant at the residential address of Mr Elomar. In executing that search warrant, police conducted a Cellebrite examination of Mr Elomar’s mother’s phone. This examination revealed that Mr Elomar had been using his mother’s phone to communicate with a number of persons, one of whom was the defendant.

Mr Elomar was the subject of an ESO under the THRO Act and was subject to supervision by the NSW Police Force’s High Risk Terrorist Offender Unit.

The communications between the defendant and Mr Elomar included discussions of the possibility of the two men going for a horse ride together. Mr Elomar sent the defendant an image of the branding for Mr Elomar’s horse stud, which, according to Dr Shanahan, bears a resemblance to the Islamic State flag. The horse stud emblem also bears the word “Baqiyah”, which is used in the Islamic State motto: “Baqiyah wa tatamaddad” (remaining and expanding).

Among other things, the defendant sent Mr Elomar a video of himself riding a horse and another video of himself using a traditional bow and arrow. Both Mr Elomar and the defendant attended the Body Punch boxing gym in Lakemba.

The communications between the defendant and Mr Elomar constitute an association between the two for the purposes of s 10(1)(c)(ii) of the THRO Act.

I will return to the defendant’s association, in this respect, in reviewing mandatory considerations under s 25(3) of the THRO Act.

Putting aside the defendant’s evidence in relation to words spoken to LSC Kirk at the road stop, dealt with earlier in this judgment, in summary, the defendant gave the following evidence (by affidavit and oral evidence).

The defendant gave evidence that he was brought up as a practicing Muslim and has continued this practice into adulthood.

Upon his release from custody, the defendant attended Quakers Jill mosque each Friday. The defendant conceded to being a Salafist. He acknowledged that the Salafist ideology formed the foundation for groups such as ISIS and al-Qa’ida. However, the defendant denied that he had ever been a supporter of ISIS.

As to his religious practice and interest in archery and horse riding, the defendant’s evidence was as follows:

The defendant conceded that he made a lot of poor decisions while he was in custody; decisions that he would not make as a grown man and father.

Further, the defendant stated that the criminal offences that he committed and religious beliefs that he held were in the past.

Whilst the defendant was in custody at Wellington Correctional Centre, he got the word “AL QAEDA” tattooed on his arm.

As to his reason for getting the word “AL QAEDA” on his arm, the defendant stated as follows:

As to his tattoo of the name “Hassan Kalache”, the defendant gave evidence that it was the name of his cell mate while he was incarcerated at Wellington Correctional Centre. The defendant conceded that he was friends with Mr Kalache, knew that he was a convicted murderer and was aware that Mr Kalache had a tattoo on his back with the name “Osama bin Laden”. However, the defendant went on to say that he wouldn’t describe Mr Kalache as a supporter of Osama bin Laden.

The defendant gave evidence that he “grew out of that state of mind after a year or two of getting the tattoo”. The defendant went on to describe the tattoo as “one of the most foolish and regretful decisions I have ever made in my entire life”.

The defendant acknowledged that, while he was in custody, he was under the impression that al-Qa’ida was a religious group that sought to help the oppressed. The defendant gave evidence that he “had a false picture of them in my head of what they stood for”.

Further, the defendant stated that, while in custody, he took part in conversations with other inmates, in which he was told that al-Qa’ida were defending innocent individuals against oppression and invasion.

The defendant gave evidence that at the time he was incarcerated and had “Al Qaeda” tattooed on his arm, he did not know that the group was responsible for the murder of three and a half thousand people in New York City in 2001 or the Bali bombings. Further, the defendant denied any knowledge of the group called Jamia Islamia.

The defendant gave evidence that in his last year of custody his religious beliefs began to change. The defendant stated that lawyers and other Muslim individuals, including his family, started to educate him about the Prophet Muhammad and versus of the Quran. This led the defendant to further educate himself about the Islamic religion.

The defendant gave evidence that he did not support terrorism, and that following his release from custody, he was no longer “influenced by extremism or extremists”.

The defendant was examined on the nature of his relationships with several individuals named in the plaintiff’s evidence as associates. It is clear from his evidence that he was, in my view, attempting to limit the extent of his association.

The defendant gave evidence that following his release from gaol, he worked as a carpenter with AB, once a week, for approximately nine months. The defendant gave evidence that he had knowledge of AB’s conviction but had never had a conversation with AB that pertained to terrorism or extremist views.

With respect to Mr Elomar, the defendant gave evidence that he was in custody at the same time as Mr Elomar and that they would speak from time to time. Further, the defendant contended that he had a conversation with Mr Elomar inside a boxing gym in Lakemba, in which they spoke about family, marriage and horses. When questioned about other forms of communication with Mr Elomar, the defendant stated that he had a telephone conversation with Mr Elomar and that Mr Elomar had sent the defendant photos of his horses and his business logo.

The defendant described Mr Ishmail Hicham and Mr Bilal Elzamtur as friends that he met while he was incarcerated.

The defendant stated that his last interaction with Mr Tekirdag, whom the defendant stated he did not have a close relationship with, was a week following the issue of his ISO.

With respect to Mr Zakarya, the defendant submitted that he had known Mr Zakarya as a child and had trained at the same gym as him.

When asked about his relationship with Messrs Nayef Salameh, Mahmoud Sumrein, Omar Ammouche or Peter Vai, the defendant gave evidence that he did not have a close relationship with them.

Upon his release from custody on 18 November 2018, the defendant moved into his parents’ house, commenced full time work with his father in the family business and within four weeks of his release, married his wife.

The defendant gave evidence that since his release into the community, he had been focused is on his career, family and religion.

However, the defendant gave evidence that he had experienced difficulty in managing work and maintaining his lifestyle because of the requirement that he schedule his movements a week in advance. The defendant gave evidence that this requirement was too onerous and restricted his ability to maintain his employment as a carpenter and manager of his family business. Further, the defendant gave evidence that his wife is spontaneous and loves to go to the zoo, beaches, to visit family or out to dinner and the defendant cannot go with her because of the conditions imposed.

The defendant stated that his father hopes for him to take over the family rug business. In doing so, the defendant has expressed a desire to travel to the Middle East to meet the suppliers.

Having summarised the defendant’s evidence, it will be clear from earlier aspects of this judgment, and what follows, that I have not found the defendant’s evidence credible in certain respects. Further, I do not consider him to have been entirely candid, particularly as to his associations and beliefs.

The Court is only able to make an ESO if satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order (s 20(d) of the THRO Act).

The Court is not required to determine that the risk of committing a serious terrorism offence is “more likely than not” (s 21 THRO Act).

The elements of s 20(d) of the THRO Act were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328. There, the Court summarised the key aspects of the provision as follows (at [29]):

The test in subparagraph (d) is whether the court is 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.

“Serious terrorism offences” are defined to be offences against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s 4(1)). Those offences include:

The questions raised by s 20(d) may be assisted by reference to some of the mandatory considerations for the making of an ESO set out in s 25(3) of the Criminal Code (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [42] (per Harrison J), referring with approval to Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [22]; State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [59].

There were significant aspects of the plaintiff’s submission summarising features of the material with respect to these considerations, which were uncontroversial and the evidence uncontested (so far as the summary concerned). They have, thus far, significantly informed the discussion of the mandatory factors which follow.

As part of the assessment process, Dr Eagle conducted an interview with the defendant over a period of approximately 130 minutes on 13 December 2019.

The defendant was logical, coherent and engaged cooperatively with the assessment process. Dr Eagle concluded that the defendant did not display signs of a major mental illness and his capacity to regulate his emotional responses and control his behaviour appears to have improved over the last few years.

The defendant acknowledged to Dr Eagle that he had become more committed to his faith since he left custody. Dr Eagle observed:

Dr Eagle asked the defendant about the al-Qa’ida tattoo in interview. He is said to have stated:

Dr Eagle observed that the defendant “said that the nature of al Qa’ida had been portrayed to him in a very one-sided way. He said he found out, for instance, that they were “killing people senselessly.” He said initially he thought they were defending innocent people. He said when he realised that they were placing “suicide bombs in market places” he no longer supported the organisation.

Dr Eagle noted that the defendant had the original al-Qa’ida tattoo covered by a second tattoo. The timing of the second tattoo was not explored with him.

As concerned the robbery offences that comprised the index offence, the defendant informed Dr Eagle that he was “doing it for the excitement”.

In addition to his history of violent offending involving firearms, the defendant had a history of carrying a pocket knife at times as a weapon. The defendant had “displayed antisocial traits such as the failure to conform to social norms with respect to lawful behaviours; deceitfulness; aggressiveness; and a reckless disregard for the safety of others”. However, Dr Eagle noted that the defendant did not clearly satisfy the criteria for an antisocial personality disorder.

Dr Eagle adopted a structured professional judgment approach to the assessment of the risk presented by the defendant, employing the Violent Extremism Risk Assessment – Version 2 revised (“VERA-2R”) structured professional judgment tool to assist with her assessment.

Dr Eagle discussed the limitations in the process of risk assessment and the use of a structured professional judgment approach as follows:

Dr Eagle examined, in that context, risk indicators across four main categories.

First, Dr Eagle noted that, whilst the defendant currently denied commitment to a belief system or ideology that justified the use of violence, he had “acknowledged previously supporting al-Qa’ida and believing that the acts of al-Qa’ida were justified but stated this was in response to the influence of peers in the correctional environment and a misunderstanding of the organisations actions, particularly in relation to those he considered innocent people such as women and children”.

As to the defendant’s assertions that his beliefs have shifted, Dr Eagle observed the following:

Secondly, as concerned the defendant’s social context and intentions, Dr Eagle noted the defendant’s interest in archery and horse riding, as well as his contact with Mr Ahmed Elomar. She then observed:

Aside from the defendant’s comment regarding his desire to shoot down a plane with an RPG, there is no other information to suggest he has or had a specific target for a potential terrorist attack in mind.

Dr Eagle then noted that the defendant’s personal contact with persons supporting violent extremism was concerning:

In a similar vein, Dr Eagle observed under the heading “Susceptibility to influence, control and indoctrination” that the defendant “has demonstrated a consistent susceptibility to peer influence and indoctrination”. While his wife and child may mitigate his susceptibility to influence, this mitigation has yet to be observed, and Dr Eagle considered that his “susceptibility to influence, control or indoctrination could be considered a significant ongoing risk factor”.

Regarding this category of risk factors, Dr Eagle observed that the defendant’s family have led a prosocial lifestyle. He did not appear to have received any specific paramilitary style training, though his association with persons with extremist beliefs “may suggest that he has received some informal training in extremist ideology in correctional settings”.

Dr Eagle noted that the defendant had “shown the capacity to plan and engage in relatively organised criminal activities”. Additionally, while it was not clear whether he had access to significant funding or assistance, “his ongoing contact with potential violent extremists is of concern in this regard”.

The defendant reported a commitment to his religious beliefs. Dr Eagle observed that his actions generally could be perceived as, at least partially, motivated by religious obligation. Dr Eagle, however, perceived his strongest motivation to be a “sense of brotherhood and group belonging”. She noted that he “has shown a consistent affinity to establishing strong peer groups and has been influenced by those groups, both in custody and in the community”.

Dr Eagle reported that the defendant asserted that he no longer supported al-Qa’ida or violent extremism and said that his family had become his priority. Dr Eagle then stated:

In summary, Dr Eagle observed that the defendant’s risk indicators:

In Dr Eagle’s view, continued contact with violent extremists constituted the “most likely scenario of increased risk” as it would leave the defendant “susceptible to ongoing indoctrination and influence and may either directly or indirectly support or propagate the extremist ideology and potentially recruit others to the ideology”.

Dr Eagle also considered the defendant’s established capacity for instrumental violence to be of significant relevance to the risk he presented. She noted: “He has an established capacity for violent behaviours that could cause potentially lethal harm if undertaken in the name of an extreme ideology”.

Dr Eagle provided the following summary of her assessment of the defendant’s risk of committing an act of violent extremism:

As earlier mentioned, questions were raised with Dr Eagle regarding this opinion, the answer to which formed the basis for the supplementary Eagle report. Those questions, and answers appear below:

As to the acts the defendant may engage in that might constitute a serious terrorism offence, Dr Eagle observed:

Dr Eagle’s assessment of the duration of an ESO was as follows:

I accept the submission for the plaintiff that Ms Dewson’s conclusions broadly align with those expressed by Dr Eagle, although one aspect of divergence is that Ms Dewson considered, on the basis of the defendant’s disregard for the rights of others, failure to comply with the rights of others and evidence of conduct disorder prior to the age of 15, that the defendant meets the diagnostic criteria for Antisocial Personality Disorder.

The defendant told Ms Dewson that he enjoyed the “adrenalin” associated with his offending. Ms Dewson observed that this suggested he “maintained sensation-seeking personality traits” and noted that he was “reported able to overcome any objection to his violent behaviour by downplaying the significance of the injuries, justifying to himself that ‘they weren’t dead.’”

As concerned the defendant’s religious beliefs, Ms Dewson observed that there was no evidence that the defendant was exposed to extremist religious views in the family context. As to the defendant’s support for al-Qa’ida, Ms Dewson observed:

Ms Dewson also made use of the VERA-2R tool to assist her assessment of the defendant.

Ms Dewson stated that the defendant had historically sympathised with a terrorist organisation, though reported to have been re-educated and denied current support for violent extremism. Ms Dewson spoke with the defendant about his support for al-Qa’ida:

In interview, the defendant stated, that at the time of his support of al-Qa’ida, there were significant events occurring around the world in relation to the treatment of Muslims, which caused him “moral outrage”. He could not recall what those events were.

Ms Dewson observed that the defendant had made vague non-specific threats, but had not identified a specific person, group or location and there was no indication that he had expressed a willingness to die for his cause. She then stated:

In the context of this risk factor, Ms Dewson referred to the defendant’s extensive history of interpersonal violence, and apparent informal training in extremist ideology in custody at around the time of the “Al Qaeda” tattoo. Ms Dewson observed that he had an extensive network of criminal peers and had demonstrated the capacity to plan and execute violent offences, including offences involving weapons. However, whilst the defendant has sound organisational skills, Ms Dewson stated that those skills are unlikely to be sufficient to allow him to execute a complex plan without support.

Ms Dewson opined that the defendant’s motivation to align himself with a terrorist organisation was likely motivated by religious obligation, criminal opportunism, group belonging, excitement and the acquisition of status.

Ms Dewson observed that the defendant had good family support and had experienced a period of stability in the community, albeit under parole and the ISO.

Having regard to all the information available to her, Ms Dewson concluded that Mr Barez presented a moderate risk of violent extremism.

She stated that “one of the greatest factors elevating the defendant’s risk is his exposure to extremist views through his peer networks”, in circumstances where, as evidenced by the “Al Qaeda” tattoo, he was susceptible to indoctrination.

As to the more specific prospect that he might commit a serious terrorism offence, Ms Dewson observed:

Ms Dewson concluded that an ESO of three years in duration would be appropriate, though with conditions that reduced in restrictiveness over time.

As earlier mentioned, the RAR was completed by Ms Terry, a forensic psychologist, on 8 August 2019.

The defendant participated in two interviews, for a total of three hours, for the purpose of the RAR. On both occasions, he arrived some 40 minutes late, and was described as having been “easily engaged, albeit distracted at times”.

Ms Terry opined that the defendant “at times presented as a poor historian, particularly with respect to discussing his history of aggression and peer relationships”.

Ms Terry noted that in December 2018, the LSI-R actuarial risk offending tool had been applied to the defendant to assess his risk of general re-offending. That assessment yielded a score of 9 (out of a possible 54), placing the defendant in the low risk category.

In July 2019, Ms Terry applied the Violence Risk Scale (“VRS”) to the defendant. The defendant’s VRS score places him in the high-risk category.

Ms Terry also applied the VERA – 2R structured risk assessment tool to the defendant.

The application of the VERA-2R yielded an overall risk profile for extremist violent offending in the moderate range.

There were a number of factors underpinning that conclusion as follows:

In seeking to assess potential risk scenarios regarding the defendant, Ms Terry observed:

Ms Terry provided a number of summary observations including, relevantly, the following:

Ms Terry concluded by noting that:

On 11 September 2019, Ms Terry produced the supplementary RAR, in response to the provision of further material relevant to the present application.

The supplementary RAR confirmed Ms Terry’s assessment that the defendant fell into the moderate category, as to his risk of engaging in politically motivated violence, violent extremism or terrorist activity. In particular, Ms Terry opined that:

Ms Terry stated that, whilst her view remained that the defendant fell in the moderate risk category, “should he remain on the current pathway without intervention, his trajectory would likely progress to a point which would significantly increase his risk of future extremist violence”.

The defendant’s criminal history dates to 2010, when, as a juvenile, he was charged with two counts of common assault. The defendant’s criminal history also included further common assault offences, assault occasioning bodily harm, affray and robbery in company. He had also been charged in respect of breaches of bail.

On 15 March 2013, the defendant was sentenced to a total period of imprisonment of 8 years and 6 months for two counts of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act and the common law offence of conspiracy to commit armed robbery. The sentence expired on 18 November 2019.

The armed robberies occurred on 7 March 2011 and 19 May 2011, while the conspiracy charge related to activities engaged in between 10 and 13 March 2011.

At about 11.00pm on 7 March 2011, the defendant entered the Brewhouse Hotel in Blacktown with two other men. One of the offenders was armed with a handgun, another had a knife and the third had a shopping bag. It is not clear which of the three was the defendant.

One of the offenders threatened an employee with a knife and obtained money from the front till while another offender pointed the pistol at a security guard and asked where the safe was. That offender then approached the duty manager and asked to be taken to the safe.

The offender and his co-accused stole about $30,000 from the safe, plus the money from the tills.

At the time of this offence, the defendant was on conditional liberty; he was due to face the Children’s Court for an offence of affray and an offence of assault occasioning actual bodily harm.

Between 10 and 13 March 2011, the defendant conspired with four others to rob a hotel while armed with a dangerous weapon.

On 13 March 2011, intercepted phone calls revealed that the defendant was picked up in a BMW and was headed towards the Prospect Hotel after his co-accused had purchased gardening gloves and discussed the commission of a robbery. Police arrested one of the four conspirators in the driver’s seat of the BMW, and the two other conspirators after they attempted to escape. The defendant successfully evaded police.

A number of items ostensibly connected with the robbery were located in the bushland near where the defendant’s co-accused were arrested. Most notably, police found a black pistol with a silencer.

At about 5.50pm on 19 May 2011, the defendant drove with another male to the Chambers Cellars in Winston Hills in a motor vehicle bearing stolen number plates. Both men were wearing balaclavas. The defendant carried a submachine gun, which he pointed at staff in the shop. He demanded that staff open the cash drawers. The defendant’s co-accused emptied the contents into a backpack.

The defendant asked the manager to take him to the safe, but it could not be accessed due to a time delay mechanism.

The submachine gun was later located by police at the house of the defendant’s co-accused.

I have earlier discussed the opinions of Dr Eagle, Ms Dewson and Ms Terry regarding the defendant’s beliefs or commitments.

The plaintiff also relied upon an incident on 29 March 2014, when the defendant is alleged to have said to a Corrective Services officer, “I wish I had an RPG I would blow that plane out of the sky”, in reference to a plane flying over the prison. The officer then asked him whether he was “inspiring [sic] to be a terrorist”, to which the defendant replied “well I’m not an extremist but love Al-Qaeda”.

I have earlier made findings as to the defendant’s statement to LSC Kirk on 30 January 2017.

The plaintiff relied upon the First Shanahan Report as further support for a contention that the offender continued to harbour a significant interest in intolerant or literal interpretations of Islam and the martial aspects of the religion. The following opinions in this report were relied upon in that respect;

The evidence regarding the defendant’s experience with archery is not limited to the messages exchanged with Mr Elomar. Police made a number of observations of the defendant engaging in archery in August 2019.

In interview with Dr Eagle, the plaintiff was asked about Dr Shanahan’s suggestion that it was unlikely that he did not know about the nature of al-Qa’ida at the time he got the tattoo. Dr Eagle recorded:

The plaintiff correctly submitted that it is implausible that the defendant was not aware of the connection between al-Qa’ida and terrorist attacks. The September 11 attacks are undoubtedly one of the most widely publicised events of the 21st century. The involvement of Osama Bin-Laden and, in turn, al-Qa’ida, in those events is notorious.

Consistent with this, the First Shanahan Report concludes that, “It is reasonable to believe that Mr Barez publicly supports extremist views of Islam and has an affinity with terrorist ideologies”.

The Second Shanahan Report related to six videos, which the defendant had searched for on YouTube in the period from 11 December 2019 to 3 January 2020. The material was obtained from a Cellebrite download from his mobile phone.

According to Dr Shanahan, the first, second and fourth of these videos were broadly consistent with mainstream Islamic thought.

The third video contained a recitation of a passage of the Quran. That alone was consistent with mainstream Islamic practice. Dr Shanahan opined:

The presentation of the video, including the words “And never think that Allah is unaware of what the evildoers do” overlaid across conflict-related images, including those of US military jet and dead children from middle eastern conflicts, was suggestive of more political overtones. Dr Shanahan observed:

The fifth video is of a Channel 9 news story about the sentencing of three Melbourne men who planned an attack in Federation Square in the name of the Islamic State.

The sixth video contained a critique of the way Muslim women’s circumstances are portrayed negatively in western cinema and television. There was nothing inherently extremist about the general premise, however, some of the material was “pejoratively anti-western” and included a denunciation of movement towards a “Godless liberal dystopia”.

Dr Shanahan observed that the videos alone did not permit a determination as to whether the defendant held extremist or terrorist ideologies. The videos, however, showed, in Dr Shanahan’s opinion, that the defendant “is interested in a conservative, Salafist form of Islam. Some of the videos express anti-US/Israel, anti-secular liberalism sentiments that are shared by Salafist-Jihadist groups and there is a report on a terrorist sentencing, but there is no indication of any Islamic material with countervailing views. This may suggest that he is attracted to more extremist religious views”.

The defendant denied viewing the video. He stated that he had the video in his pocket and was listening to the words recited. However, in my view, the defendant’s evidence, in this respect, was unconvincing, particularly when viewed in light of other parts of his evidence as to the acquisition of material and expressions of his beliefs.

When asked if he could understand Arabic, he said, “no, not fully”. I agree with the submission of the plaintiff that here, the defendant was downplaying his affinity with extremist beliefs. That conclusion has an added significance because the video was played between 11 December 2019 and 3 January 2020.

The defendant referred to the judgment of Davies J in the State of New South Wales v Haidar [2020] NSWSC 38 at [79] to [81] as a basis for casting doubt as to the weight to be given to Dr Shanahan’s opinions. Those paragraphs of Davies J’s judgment concerned the admissibility of certain opinions expressed in the matter by Dr Shanahan in which he expressed an opinion as to the beliefs held by the defendant. However, there was no objection to his evidence in this case. Nevertheless, having regard to the defendant’s submissions, I have drawn a distinction, in terms of the weight of the evidence, between those parts of Dr Shanahan’s evidence which concerned expressions, symbols or pictures and depictions, which he opined may be connected to intolerant or literalist interpretations of Islam (for which he is well qualified) and other related opinions and opinions as to whether the possession, viewing or holding of such things demonstrated that the defendant supported such views (which were also subject to analysis by the independent experts). Nevertheless, as to this second aspect, the opinions of Dr Shanahan do have greater weight insofar as they provide ‘indicators’ which may assist in determining whether a person engaging with such expressions, symbols, pictures or depictions, may have held, or does hold, a radical view of Islam.

Dr Shanahan was cross examined briefly regarding the opinions he expressed about the defendant’s interest in horse-riding and archery. He accepted that, in general terms, the practice of looking to hadith (i.e. statements describing the words and actions of the prophet Mohammad) for guidance was unremarkable.

However, Dr Shanahan’s evidence remained unshaken in that the combination of the defendant’s tattoo, his interest in horses and archery, and the horse stud branding, all constituted indicators of radicalised views.

Dr Jones had the benefit of two interviews with the defendant and provided a report by way of an affidavit. His evidence is uncontested by the plaintiff.

It should be noted, however, that the first meeting was principally directed toward rapport building.

The defendant highlighted the following parts of Dr Jones’ evidence:

Some other parts of Dr Jones’ evidence should also be given particular mention. Dr Jones also gave an opinion that the defendant’s participation in the activities referred to in the above extract were positive in that they showed a “connected personality”. I accept that they may give such an indication. He also opined that this factor lessened the prospect of the defendant falling “prey” to those wishing to ideologically “alienate” him. The difficulty with that latter conclusion is that the defendant’s attendance at the gym also brought the defendant into contact with some of the problematic associations that I have earlier referred to in this judgment.

Dr Jones referred to the teachings of Ibn Taymiyyah. He noted that his teachings were known to have put an emphasis on the importance of jihad and martyrdom for jihad. Dr Jones stated that they also gave a broad definition of what constituted aggression against Muslims and what actions by non-believers made jihad against them permissible.

I accept the submission of the plaintiff that the evidence needs to be compared with the defendant’s evidence in cross-examination as to moving to the defence of Muslims. I will return to that issue.

In that context, Dr Jones opined:

As to the horse stud branding, Dr Jones opined:

Finally, Dr Jones gave an overview as follows:

Based on these opinions, the defendant submitted that his interest in archery and horse riding should not be factors taken into account against him, in assessing or concluding, to a high degree of probability, that he presented an unacceptable risk of committing a serious terrorism offence. I do not accept that submission.

Given that I have formed the view, that the ‘claimed associations’ referred to by Dr Jones are, relevant and important associations for the purposes of assessing risk, and that there is a proper basis for a conclusion that the defendant held, to a varying degree, a “radicalised belief” over time, this final passage of Dr Jones’ evidence does tend to undermine, overall, the efficacy of his opinions.

Whilst there are aspects of the evidence of Dr Jones which are useful and informative, I prefer the opinions of Dr Shanahan, where there are clearly conflicting views as to those issues, having regard to the basis for the opinions stated by Dr Shanahan in his evidence, his qualifications and experience and the short comings, in that respect, in the report of Dr Jones, to which I have referred above.

The RIR was prepared on behalf of Corrective Services NSW.

As to the defendant’s risk, that report observed:

The conditions suggested as appropriate in the RIR included, electronic monitoring and a schedule of movements, as well as restrictions to the defendant’s travel and associations.

The RIR did not suggest that it would not be practicable to manage the defendant in the community under an ESO.

The defendant has some history of failing to comply with his parole obligations. During his parole in relation to the index offences (which commenced on 16 November 2016), he failed to report on a number of occasions and at other times was late.

After his release from prison on parole, the defendant was charged with an offence of affray, contrary to s 93C(1) of the Crimes Act. The offence was alleged to have arisen as a result of the offender’s involvement at a fight at the Rouse Hill Town Centre food court on 20 January 2017. The defendant’s involvement in the fight appears to have been minimal. It was alleged that he threw one punch after it commenced, but otherwise made some attempts to break the fight up. He was ultimately found not guilty following a hearing of that charge.

Parole was revoked on 23 March 2017, on account of the events of 20 January 2017 and a breach of a condition not to associate with Mr Zakarya in February 2017.

On 9 June 2017, approximately 2 weeks after the Local Court granted the defendant bail in relation to the affray offence, the revocation of the offender’s parole was rescinded.

On 11 April 2019, the defendant was charged with shoplifting, after it was alleged he took an item from a pharmacy.

The defendant has had little engagement with treatment programs, though this is attributable to his score on the LSI-R measure of general offending risk, rather than any unwillingness to participate in such programs.

The defendant was sentenced for the index offences by Judge English on 15 March 2013.

The defendant gave evidence on sentence. Her Honour described the defendant as a “particularly unimpressive witness”. In particular, her Honour expressed concerns in relation to contradictions in the material and evidence regarding the offender’s use of drugs; her Honour did not accept the defendant’s evidence regarding his reported heroin habit.

Judge English went on to observe, “I find his inability to tell the truth does not bode well for his rehabilitation…he clearly has not learnt that it is essential to tell the truth, particularly when on oath, and of course he has done nothing by way of attending courses or counselling or undertaking employment whilst he has been in custody”. Subsequently, her Honour noted that, “his prospects for rehabilitation are impacted upon his misconduct whilst he has been in custody and his inability to tell the truth”.

Her Honour also noted “He is certainly someone in need of a high level of intervention post release in any event to minimise his risk of re-offending”. Her Honour later observed:

As to the nature of the offences, her Honour stated, “there was a degree of criminal professionalism in the execution of these two robberies unlike the spontaneous type of robbery committed by other young persons when an opportunity presents itself…”.

During his time in custody, the defendant was charged with 23 different institutional breaches. Those breaches included the following:

The defendant was placed in segregation on four occasions during his time in custody and received various warnings, including a warning for intimidation, and an Extreme Threat Inmate warning for being involved in a group assault with weapons in June 2016.

A custodial note, dated 2 December 2011, observed as follows:

The defendant’s custodial behaviour did improve in the period prior to his release. The Community Corrections’ Pre-release Report, dated 23 August 2016, stated:

As at 18 July 2019, the defendant was employed by Mohammad Omar at “Zentrix Carpentry”. “Mohammad Omar” appears to be Muhhamad Umar Wahabzadah, who holds the ABN for Zentrix Carpentry Pty Ltd. Mr Wahabzadah is a person of interest to the High Risk Terrorist Offender Unit of NSW Police. On 25 August 2016, NSW Police executed a search warrant at Mr Wahabzadah’s residence and obtained a number of items, including an Islamic Brotherhood jumper depicting an AK-47, a black and white Islamic flag and a loaded Remington rifle, as well as ammunition, knives and knuckle dusters. The defendant associated with these persons until his warrant arrangements changed under the ISO (and AB).

The defendant was found to have continued his association with Mr Zakarya, an alleged ‘Brothers for Life’ member, notwithstanding a formal direction by his parole officer not to associate with Mr Zakarya. This connection also had a relationship to the defendant breaching a consorting order. The defendant knew Mr Zakarya as a family friend and was a person he knew in custody.

An examination of a Cellebrite download of the defendant’s phone identified a number of further associates with criminal records, including some who may hold extremist views. These associations were addressed in the affidavit of Michael Van Eyk, dated 28 January 2020, and included the following:

The defendant submitted that the Court would not be satisfied to a high degree of probability, that the defendant posed an unacceptable risk of committing a serious terrorism offence, if not kept under supervision under an ESO.

In his primary submission, in that respect, it was contended that the risk was, in fact, low and the possibility of committing a serious terrorism offence was only notional.

In the alternative, it was submitted that, if the Court reached the requisite satisfaction under s 20(d) of the THRO Act, then it was of greater likelihood such an opinion would be formed because of ‘associations’. In that event, it was contended that the Court should be minded, if making an ESO, to order a shorter duration for any order made or lesser monitoring conditions, commensurate with the risk, such as eliminating any requirement to wear electronic monitoring equipment.

As earlier mentioned, the defendant provided sworn evidence disavowing any support, much less commitment, to a terrorist organisation of any kind. The defendant contended that the Court would accept, on balance, this statement to be genuine and accurate. There was an absence of evidence that the defendant believes in terrorism.

The Court should not “automatically” conclude that a risk arises because the defendant was fundamentalist or conservative Muslim.

It was further submitted that the defendant gave clear evidence of his withdrawal from his previous view that al-Qa’ida is an organisation that defended the innocent. There was uncontested evidence that, prior to any commencement of these proceedings, or notice of potential proceedings, the defendant attempted, on a number of occasions, to remove his tattoo. He was unsuccessful for two reasons, first that it was costly and second that it was large.

In cross-examination, the defendant maintained, it was contended, that he believed in self-defence and defence of another innocent. However, it was submitted that such a view would be consistent with any law abiding citizen and not a driver or justification of extremist organisation. The defendant had no interest in, or truck with violent extremism or terrorism. He wished to resile from any sentiments in favour of al-Qa’ida. He had a willingness to live in Australian society and adopt its laws and codes.

As to associations, it was further submitted that:

I am 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 by an ESO. It follows that I reject the primary submission advanced for the defendant.

My reasons for that conclusion are as follows:

Where the Court determines that each of the threshold criteria enabling the making of an ESO are satisfied (including the unacceptable risk test), the Court does, nevertheless, retain a discretion as to whether or not to make an order. However, in my view, there are no discretionary considerations in the present case that would lead the Court to refrain from making an ESO, in light of the findings under s 20(d) of the THRO Act.

Further, the paramount consideration in determining whether or not to make an ESO is the safety and protection of the community (s 25(2) of the THRO Act). The impact of an ESO on an offender’s liberty may be relevant to the Court’s exercise of its discretion to make the relevant orders, but is not to be taken into account in determining whether the preconditions are satisfied.

The statutory preconditions for the making of an ESO have been met in this case. There is no reason not to exercise a discretion to make an ESO and the various mandatory factors, earlier discussed in this judgment, affirm the making of such an order.

As to conditions, the parties advanced limited submissions. The defendant raised various particular issues concerning scheduling and electronic monitoring. In the first case, the issues raised were adequately met, in my view, by the amendment to the conditions brought about by exhibit D. As to the balance of the conditions proposed by the plaintiff, other than those modified by Fullerton J in making the ISO (which were translated into the conditions operating under the ESO), they were commensurate to the risks which have been found by the Court, and the supervision of the defendant, when considered in the light of the requirements of Div 2.6 of Pt 2 of the THRO Act. The conditions were considered appropriate by Dr Eagle.

As to duration, I have accepted, in part, the alternative submission advanced on behalf of the defendant and the concessions made by senior counsel for the plaintiff, that the length of the ESO made should be of a shorter duration than sought by the plaintiff in the summons, in the light of some progress made by the defendant. An ESO with a duration of one year is consistent with the progress of the defendant, the management of the risks found by the Court and, in particular, the management of associations. A duration of one year is not inconsistent with Dr Eagle’s opinion as to the appropriate duration of an ESO.

The Court confirms its orders of 18 February 2020.