State of New South Wales v Taleb (Final)

Mr Moudasser Taleb (the defendant) was born in November 1995. He is an only child born of his parent’s union and has at least one stepbrother. He was raised in South-West Sydney. His father abandoned the family when he was a one-year-old child, and he was raised by his mother who suffered from multiple sclerosis. By 2016, her condition was extremely debilitating. In 2014, the defendant was scheduled and held overnight at Bankstown Hospital for mental health review. After his discharge from Bankstown Hospital, the defendant became more religious, and his interest became more “obsessive and included a belief in radical Islamism and support of the Islamic State or “ISIS”. [1]

In January 2017, the New South Wales Joint Counterterrorism Team (NSW JCTT), Sydney, commenced an investigation (Operation Tekapo) in relation to the defendant. The investigation involved various forms of surveillance, including telephone intercepts and physical surveillance. The investigation extended to the use of an Under Cover Officer (UCO). On 15 June 2017, the defendant attended Sydney International Airport where he anticipated, on the basis of his conversations with the UCO, that he would receive a plane ticket to Europe, from where he would be facilitated to travel to Syria to fight with the Islamic State. [2]

On 18 March 2018, the defendant was charged with an offence contrary to s 119.4(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) committed between 6 February 2017 and 15 June 2017 at Sydney in State of New South Wales (Foreign Incursion Offence). On 14 June 2019, the defendant was convicted following a trial by jury in the Supreme Court of New South Wales of the offence of doing conduct preparatory to the commission of a foreign incursion offence (namely, to go to Syria or Turkey to fight for the Islamic State to overthrow the government of Syria or establish or maintain a Caliphate under Sharia Law), contrary to s 119.4 of the Criminal Code, being the Schedule to the Criminal Code.

The defendant was found guilty of that offence following a trial before a jury at which he unsuccessfully argued mental impairment as a defence. His Honour Justice Hamill ordered that the defendant enter into a recognisance, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), without sureties, to be of good behaviour for a period of five years (the RRO).

On 14 June 2019, the defendant was released from custody subject to supervision under the RRO. On 14 June 2019, the defendant was served with a Firearms Prohibition Order (FPO) and a Weapons Prohibition Order (WPO). This background will be summarised in more detail below.

On 13 October 2022, his Honour Justice Campbell made orders appointing experts to examine the defendant and directing the defendant to attend those examinations. His Honour also made an order pursuant to ss 41 and 42(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act or the THRO Act), that the defendant be the subject of an interim detention order (IDO) for a period of 28 days, commencing on the date of the order. On 1 November 2022, the IDO was renewed for a further 28 days, from 12 November 2022.

By summons, filed on 4 October 2022, the State of New South Wales (the plaintiff) applied for orders under the THRO Act in relation to the defendant.

The plaintiff initially sought orders pursuant to ss 34(1), 39(1)(b) and 40(1)(b) of the Act, that the defendant be subject to a continuing detention order (CDO) for a period of twelve months, and orders pursuant to ss 20, 25(1)(a), 26(6) and 69(2) of the Act, that the defendant be subject to an extended supervision order (ESO) for a period of two years, commencing upon the expiration of the CDO.

An amended summons was filed on 8 December 2022, indicating that the plaintiff no longer pressed its application for a CDO.

By way of final relief, the plaintiff now seeks the following final orders:

For the purpose of this final hearing, the critical issues for determination are whether an ESO should be made and, if so, the term of that ESO and the conditions to be imposed. Although the defendant accepts the statutory preconditions contained in ss 20(a) – 20(c) of the Act are satisfied, it is still a matter for me to determine whether an ESO should be made for a period of two years and, if so, the conditions to be imposed.

The plaintiff relies on the following evidence in support of the application:

The defendant relies on the evidence contained in the affidavits of Jessica Caligiore, affirmed on 12 October 2022, [3] and Rebecca Chant, affirmed on 6 December 2022. [4]

The plaintiff’s Summary of Facts is before me as an aide memoir. Although the Summary of Facts is not agreed, it is accepted on behalf of the defendant that the Exhibits contain the evidentiary material from which the Summary of Facts is prepared. I am satisfied that the contents of the Summary of Facts are supported by the evidence.

The Summary of Facts detail a number of charges and convictions in 2015 and 2016 that partly relate to incidents of domestic violence by the defendant against his mother. It is not necessary to set out those details in this judgment. Relevantly, the conduct which gave rise to the defendant’s arrest in respect of the Foreign Incursion Offence can be summarised as follows:

The particulars of the offence against s 119.1 of the Criminal Code were that the defendant, as an Australian citizen, would enter a foreign country, namely, Syria, with intent to engage in hostile activity in that, or any other foreign country, with the intention of achieving one of the objectives set out under the definition of “engage in a hostile activity” included in s 117.1 of the Criminal Code.

The defendant was released from custody on 9 December 2022 pursuant to the IDO imposed by Justice Campbell. He was held in the Metropolitan Remand and Reception Centre, after being transferred from Mid North Coast Correctional Centre on 8 October 2022.

Until 15 October 2022, the defendant was in custody serving an aggregate fixed term sentence of 18 months’ imprisonment in relation to five offences, contrary to the Firearms Act 1996 (NSW) (Firearms Act), committed while the defendant was subject to a Firearms Prohibition Order FPO” under the Firearms Act (the index offences).

On 21 April 2021, in breach of the FPO, the defendant was found to be in possession, in his bedroom, of a loaded sawn off double barrel shotgun. Shotgun shells were also located at his home. The items were found during a search executed under the FPO. The defendant was admitted to custody on 21 April 2021. He was released from custody on 9 December 2022.

Following a successful appeal against sentence in the District Court on 16 September 2022, at which the defendant’s sentence was reduced from an aggregate sentence of 24 months’ imprisonment, expiring on 15 April 2023, the sentence for the index offences expired on 15 October 2022.

The defendant is concurrently serving a sentence of a three-year Community Corrections Order, due to expire on 6 June 2025 (the CCO). The CCO was imposed on 7 June 2022, following the revocation of the RRO originally imposed by Justice Hamill on 14 June 2019.

The defendant is 27 years of age. He was born on 23 January 1995 at Bankstown Hospital to his parents, Azzam Taleb and Angel Merhab, both of Sunni background and born near Tripoli in Lebanon. The defendant’s father worked as a security guard for a time, however, left the family home sometime after the defendant’s first birthday.

While the defendant was an only child to his parents, he has a younger half-brother on his mother’s side, and a half brother and sister on his father’s side. The defendant had varying degrees of contact with his father over the years. At the time of his release from custody in 2019, the defendant’s father was living in Yagoona and their relationship was positive. There are reports that the defendant’s father suffered from schizophrenia.

Ms Merhab had other relationships and her partners caused dysfunction in the family unit during the defendant’s adolescence. Ms Merhab suffered from a severe form of Multiple Sclerosis (MS), and the defendant’s maternal half-brother was placed in foster care at a young age due to his mother’s inability to care for him.

The defendant completed his schooling in South-West Sydney, where he grew up, attending Bankstown West Public School, Birrong Boys High School and Bankstown Senior College. The defendant’s progression through school was uneventful – he was good at Maths and English and played Rugby League. In Year 10, the defendant was asked to leave Birrong Boys High School for behavioural and attendance reasons. It was noted at the time that Ms Merhab’s illness was quite severe, and the defendant had moved between various family members.

The defendant was taught to read and write Arabic by his grandparents and attended a weekend Arabic school in his younger years. The defendant was raised Muslim, however, was never particularly devout until after his hospitalisation in 2014.

After school, the defendant worked in demolition, tree lopping and construction. He commenced TAFE studies in arboriculture, however, ceased those studies due to his caring responsibilities.

In his early twenties, the defendant was married for a very short time. Problems with the defendant’s wife’s family precipitated the couple’s separation. Two miscarriages also placed additional strain on the relationship.

At the time of his arrest in 2017, the defendant played a significant role as his mother’s full-time carer. He had undertaken this for over five years, residing with Ms Merhab in Department of Housing accommodation in Revesby and receiving a carer’s benefit from Centrelink. Ms Merhab’s condition had deteriorated by this time and had become extremely debilitating. As a result, the defendant’s social life was extremely limited.

Ms Merhab passed away on 23 September 2019. At this time, the defendant was in the community and had been visiting her daily at her aged care facility. Ms Merhab gave evidence at the trial for the Foreign Incursion Offence, with his Honour noting that: “the bond between mother and son is very strong”. [5]

The defendant has had a relatively limited history of drug and alcohol use. The defendant consumed alcohol several times in his teenage years and smoked cannabis, reportedly as a relief from the stress of caring for his mother. On 23 March 2014, at 19 years of age, the defendant was admitted to Bankstown Hospital with suicidal ideation after drinking two bottles of vodka in a short period. The defendant had not had any previous mental health engagement. The event has been described as a “significant and life-changing event in [the defendant’s] life” and the hastening of the defendant’s religious beliefs. [6] As a result, the defendant ceased alcohol use and, for a period, ceased drug use.

Following the defendant’s release from custody on 14 June 2019, and after being sentenced to the RRO, the defendant resided with his paternal aunt, Aisha Taleb, and her family in the Bankstown area. Ms Taleb undertook the role of caring for the defendant, assisted in driving him to appointments, obtaining work for the defendant at her factory, assisting him with finances, TAFE study, and acting as a general conduit for information between Community Corrections, mental health services and the defendant.

The defendant has been subject to two periods of incarceration – from 15 June 2017 to 14 June 2019, and 16 April 2021 to 9 December 2022. On several occasions, the defendant was subject to segregation, including whilst as an involuntary mental health patient at the acute G Ward of Long Bay Hospital. On 18 September 2017, the defendant was transferred to Long Bay Hospital as a mentally ill person. It is noted that at this time, the defendant had been placed in segregation at the High Risk Management Correctional Centre (HRMCC) at least since 29 August 2017, as a result of his behaviour.

On 2 March 2019, the defendant was again transferred to Long Bay Hospital from the HRMCC via the MRRC as a mentally ill person. The defendant was subject to a segregation order whilst at the HRMCC, which continued whilst at the acute G Ward, until 16 May 2019. The defendant remained on segregation when he was returned to the HRMCC on 16 May 2019. His segregation order was revoked on 23 May 2019 after a period of over 3.5 months.

During his period of custody, pursuant to the IDO, the defendant has been primarily held at MRRC. While subject to the IDO, the defendant had a breach of discipline charge for assault. The report prepared by the Department of Corrective Services notes that another inmate was seen punching the defendant and that the defendant was removed from the situation by Corrective Officers. Despite being the apparent victim of an assault, the defendant was still found to have engaged in misconduct and punished.

Section 3(1) of the Act states that the primary object of the Act: “is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community”. Section 3(2) provides that: “another object of this Act is to encourage these offenders to undertake rehabilitation”.

In Cheema v State of New South Wales [2020] NSWCA 190, the Court of Appeal noted at [81] that:

“Serious terrorism offence” is defined in s 4 as an offence against Part 5.3 of the Criminal Code, for which the maximum penalty is seven, or more, years’ of imprisonment. These offences include:

The Part 5.3 offences cover a very broad range of conduct and do not require the commission of an act of violence. Inclusion of such a wide range of conduct is consistent with the legislative intention underlying the Act, being the protection of the community. In Lodhi v R (2006) 199 FLR 303, at [63]-[70], Spigelman CJ noted that terrorism offences were directed to preliminary steps. His Honour said at [66] that:

The plaintiff acknowledges that incitement to commit a terrorist offence is an offence against s 11.4 of the Criminal Code. Advocating the doing of a terrorist act, or the commission of specified terrorism offences, is an offence against s 80.2C of the Criminal Code. Both offences are outside Part 5.3 and are, therefore, outside the definition of “serious terrorism offence” in the Act. However, similar, or closely related, conduct might readily amount to a threat of action that falls within the definition of “terrorist act”, or establishes one of the planning, preparation, recruiting or facilitation offences in Part 5.3.

Section 4 of the Act provides that “terrorist act” has the same meaning as given to the term in Part 5.3 of the Criminal Code, namely, as defined in s 100.1(1):

In considering the term “terrorist act”, the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (Naaman (No 2)), at [33]-[34], construed the words “action” in paragraph (a) of s 101.1(1)(a) as including “actual or threatened” action. The Court concluded that (at [35]):

The Court (at [34]) considered this to be consistent with the approach adopted in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33, at [44], per Gummow and Crennan JJ:

Proceedings under the Act are civil proceedings. To the extent that the Act does not provide for their conduct, they are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: see s 50(1) of the THRO Act.

Having regard to ss 20 and 34, and Parts 2 and 3, of the Act, the Court may make an ESO against the defendant where, relevant to the present case, the following elements are satisfied:

Section 7 of the Act defines an “eligible offender” to mean a person who is 18 years of age, or older, and who is serving (or is continuing to be supervised or detained under the Act after serving) a sentence of imprisonment for a “New South Wales indictable offence”. Section 4(1) of the Act defines a “New South Wales indictable offence” to mean an offence against a law of the State for which proceedings may be taken on indictment (whether or not proceedings for the offence may also be taken otherwise than on indictment).

Section 10(1) provides that an eligible offender is a “convicted New South Wales terrorism activity offender” if:

Section 10(1A) of the Act specifies an inclusive, non-exhaustive list of matters relevant to s 10(1)(c) in terms of what constitutes “advocating support for a terrorist act or violent extremism”:

In State of NSW v Ibrahim [2021] NSWSC, Walton J provided the following summary of the authorities regarding the interpretation of the word “advocating” as used in s 10(1)(c) (at [70]-[74]):

“Advocate” is defined in the Macquarie Online Dictionary as, relevantly, “1. To plead in favour of; support or urge by argument; recommend publicly”. In New South Wales v Elomar (Final) [2021] NSWSC 411, Hamill J observed at [8] that “[t]he concept of “advocating support” for violent extremism or a terrorist act encompasses a broad range of conduct”. His Honour noted that “association” and “affiliation” for the purposes of the THRO Act are also defined broadly.

At [24] of Hardy v State of New South Wales [2021] NSWCA 338, Basten JA made these observations:

The defendant accepts the statutory pre-conditions contained in ss 20(a) – (c) of the THRO Act are satisfied. There is no opposition to the first order sought in the amended summons, namely, that the defendant be subject to an ESO for a period of two years from a date to be fixed by the Court.

In order to grant the relief sought by the plaintiff, the Court needs to answer four questions:

The defendant did not wish to make any submissions on the unacceptable risk question, the discretionary question, or the duration of any ESO. The primary area of dispute in this matter is the conditions that attach to any ESO imposed. The defendant opposes certain orders being made and/or seeks a variation of some of the orders, as set out in the written submissions filed on behalf of the defendant on 8 December 2022. The area of dispute involves five discrete conditions which will be addressed separately below.

Both Dr Dayalan and Mr Sheehan provided their reports on 20 November 2022. Both were of the opinion that the defendant did pose a risk of engaging in violent extremism, albeit one that could be managed through the proposed ESO conditions. Both also considered the existing CCO, FPO and FCTO to be insufficient to manage the defendant’s risk.

In his report, Dr Dayalan concluded that:

Dr Dayalan also concluded that:

Dr Dayalan went on to say that:

Dr Dayalan then opined that:

With respect to the existing CCO, FPO, WPO and FCTO, Dr Dayalan said: “The provisions proposed under [the] ESO… are more capable of managing the various risk factors identified as relevant to [the defendant’s] risk of committing a serious terrorism offence in comparison to the conditions under the CCO, FPO and WPO”. [11] The conditions imposed under a CTO does not compel me to change my opinion”. Dr Dayalan reached this conclusion following comparison of the relative effectiveness of the various conditions in managing the defendant’s risk:

When reasoning to these conclusions, Dr Dayalan diagnosed the defendant as suffering from schizophrenia characterised by persecutory delusions, referential delusions, religious delusions, and auditory hallucinations. [13] His symptoms are treatment resistant, albeit perhaps less severe, notwithstanding that he was receiving antipsychotics. His use of illicit substances have exacerbated his symptoms; that use itself leading to a clinical diagnosis of cannabis use disorder. The defendant also indicates traits of antisocial personality disorder, although Dr Dayalan considered that a formal diagnosis is not possible in light of his schizophrenia.

Dr Dayalan then appraised the defendant’s risk by reference to historical factors, clinical factors, risk management variables using the Historical Clinical and Risk Management Tool (20, version 3), and a structured clinical judgement tool said to be widely used in the field of forensic psychiatry to assess and manage risk of violence in psychiatric patients. [14] The result of that assessment was that the defendant has a “long-standing risk of engaging in violence in the future given the high loading of historical risk factors”, a number of which “are relevant to the risk of him committing an act of violent extremism”, and that it is “very unlikely that [the defendant] will voluntarily engage in treatment or rehabilitation and therefore supervision and monitoring will be essential to managing the dynamic risk factors identified”. [15]

In his report, Mr Sheehan concluded that the defendant’s “risk of committing a serious terrorism offence to be in the mid range of the risk spectrum”. [16] Mr Sheehan opined that:

Mr Sheehan considered that the existing CCO and FCTO are insufficient to manage the defendant’s risk and an ESO to be necessary, observing:

On this basis, Mr Sheehan concluded that an ESO would be capable of adequately managing the defendant’s risk of violent extremism, stating that:

Mr Sheehan offered opinions as to each of the proposed ESO conditions. [20] He concluded that “in my view the conditions are adequate to effectively manage [the defendant’s] risk of a serious terrorism offence, covering all the areas of potential concern relating to risk”. [21]

Mr Sheehan also applied the VERA-2R protocol. [22] Dr Dayalan’s appraisal of the relevant risk indicators may be summarised as follows:

The expert reports support the making of an ESO. They demonstrate that the defendant suffers from a serious mental illness and is vulnerable to indoctrination.

In addition, in the RAR, Katrina Czerkies assessed the defendant using the Violent Extremist Risk Assessment – Version 2 Revised (VERA-2R) assessment protocol. Ms Czerkies did not interview the defendant for the purposes of the report. She assessed the defendant as being a medium risk of violent offending and recidivism and a moderate-high risk of violent extremism, politically motivated violence and terrorism.

Two risk management reports have been prepared in relation to the defendant.

The first was prepared by the High Risk Terrorist Offenders Unit of the New South Wales Police Force (HRTOU RMR). [28] The HRTOU RMR identified the risk scenarios derived from the RAR. The HRTOU RMR identifies recommended conditions to support the defendant’s Risk Management Plan, including a requirement to obey direction from an enforcement officer, electronic monitoring, a power reposed in the enforcement officer to direct the defendant not to communicate or associate with persons specified by the enforcement officer, and a requirement for disclosure and approval of electronic devices. The HRTOU RMR explains how the proposed conditions respond to particular aspects of the defendant’s risk.

The second was prepared by Community Corrections (CommCorr RMR). [29] The CommCorr RMR identifies that the defendant, during an AVL interview, demonstrated willingness to partake in intervention in the community addressing his mental health (albeit that his response to interventions other than depot injections was “somewhat superficial”). The CommCorr RMR identifies that if the defendant was made the subject of an ESO, he would be managed at the “Tier Three High” level of Service Delivery Standards, which would involve at least weekly face to face contact with an enforcement officer. Modules form the “Practice Guide for Intervention” would be implemented; these promote positive change and encourage discussion around the identification and management of risk factors. The CommCorr RMR goes on to address the proposed conditions and their relevance to aspects of the defendant’s risk.

The defendant has a history of non-compliance with obligations, including the breaches of his FPO that comprised the index offending, and breaches of his RRO, which included failing to attend mental health related appointments, including appointments to receive a depot injection, and failing to make an appointment with an Islamic psychological service.

The imposition of an ESO would facilitate holistic supervision of the defendant targeted to managing the risk that he will commit a serious terrorism offence. An ESO has been assessed as appropriate by both court-appointed experts, notwithstanding the defendant’s history of non-compliance. The concerns about the defendant’s historical non-compliance are known, and consequently his supervision can respond to these concerns. In these circumstances, this factor should not be treated as weighing against the imposition of an ESO.

Having regard to the reports of the court-appointed experts, the risk scenarios identified in the RAR, and the characteristics of the index offending, I am satisfied that an ESO should be imposed, and the appropriate length is one of two years.

Section 29 of the Act provides that the Court may direct an offender to comply with conditions considered “appropriate”. Subsection (1A) outlines a list of prescribed conditions that should attach to an ESO “unless the Supreme Court orders differently”.

In the imposition of conditions, assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1), is to provide for the extended supervision and detention of such offenders: “so as to ensure the safety and protection of the community”. Subsection (2) provides that another object of the Act “is to encourage these offenders to undertake rehabilitation”.

Within the Crimes (High Risk Offenders) Act 2006 (NSW), Hoeben CJ at CL in State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 set out the following principles to be considered in the imposition of conditions:

The areas of dispute are most conveniently set out in tabular form below. In some instances, the defendant opposes the standard condition and proposes an amendment. In other instances, the defendant does not oppose the standard condition, but proposes additional detail to better explain and contextualise the standard condition. The italicised portions appearing in the tables are the proposed amendments, or conditions suggested on behalf of the defendant.

The plaintiff opposes two of the three proposed additional paragraphs. The plaintiff submits that the standard condition allows the Enforcement Officer (EO) flexibility. The plaintiff further submits that the Court should not impose a condition on an EO by prescribing that an “EO must not withhold approval of the defendants tended that any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order”.

The plaintiff submitted that the defendant does not suffer from such a debilitating mental illness such as to render him incapable of complying with a schedule of movements. The issue arises between the parties because the proposed amendment includes exclusion of certain details such as the provision of travel routes and timetables. The Plaintiff points to the report of Mr Sheehan at [98]:

The defendant submitted that, essentially, the plaintiff’s proposal gives reference to a schedule of movement, but does not outline what that schedule of movement will actually entail. The defendant’s proposal attempts to fill this void and create certainty for the defendant as he embarks on what will no doubt be a difficult two years under this order.

During the course of oral argument, the plaintiff raised the question of whether the Court has the power to impose a condition that was essentially prohibiting or restricting an EO’s capacity to withhold approval of the defendant’s attendance at a particular location. I am not of the view that the defendant’s proposal amounts to imposing a condition on an EO. Rather, the proposal ensures certainty for the defendant that approval will not be withheld unless attendance at a particular location would give rise to a risk of committing a serious offence, or risk of breach of another condition. That certainty is important in this case where the medical evidence emphasises the defendant’s persecutory beliefs. In these circumstances, the proposed amendment would serve to reassure the defendant that any disapproval of the defendant’s attendance at a particular location is not arbitrary and, at the same time, retaining an EO’s power to withhold approval where attendance at a particular location would give rise to a risk of committing a serious offence, or a risk of breach of another condition.

In State of New South Wales v Davis (Final) [2021] NSWSC 837, Rothman J considered a similar issue where the Departmental Supervising Officer (DSO) would have the capacity to disapprove the change in plans for reason associated with the risk. His Honour determined that it was appropriate to add to a condition the words: “the DSO, or delegated officer, shall not dis-approve of any such change except where reasonably necessary to address a risk of the commission of a serious offence or compliance with another condition in this ESO” at [132].

I am also satisfied that the first additional paragraph to condition 1 is appropriate, namely, that if directed by his EO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable.

I am not persuaded that exclusion of travel routes and timetables would be contrary to the objective of controlling or mitigating the risk factors which have been identified, including the risk of the defendant dealing with people who may have extremist views.

The efficacy of a particular condition must be viewed in the context of all the conditions that will be imposed upon the defendant. For example, condition 3 provides that the defendant must truthfully answer questions from any EO about where he is, or has been; where he is going, or was going; who he is with, or was with; and what he is doing, or was doing. Condition 10 imposes a condition that the defendant must wear electronic monitoring equipment as directed, and not tamper with, or remove, the equipment. In circumstances where the defendant’s movements are heavily monitored, amending condition 1 to exclude travel routes and timetables will reduce the risk of the defendant breaching the order inadvertently while maintaining an appropriate degree of monitoring to protect against the risk that the defendant has contact with associates who hold extremist views.

I am satisfied that the proposed additions to condition 1 are appropriate and serve to maintain a balance between the competing considerations, namely, to mitigate the risk of a serious offending on the one hand, and ensure that the conditions are not unjustifiably onerous or punitive, on the other.

The defendant’s proposal essentially introduces a “sunset clause” to the electronic monitoring condition. The proposed amendment is said to ensure that the defendant has the best opportunity; that at the end of two years, he does not require a further order. It is to ensure a gradual decline in the severity of the conditions and creates motivation for the defendant to continue in his rehabilitation. In considering this proposal, I am urged to bear in mind the variation power that exists within the Act. That is, should the plaintiff at the end of 12 months, entertain concerns about the removal of electronic monitoring, they have the power to bring a variation to this condition specifically.

In support of this proposal, the defendant relies upon the opinions of both the court-appointed experts. Forensic psychiatrist, Mr Sheehan notes in his report at [95]:

Similarly, Mr Dayalan notes:

The plaintiff submitted that given the defendant’s prior history of initially complying with various conditions, but eventually engaging in “quite egregious non-compliance”, the standard condition in respect of electronic monitoring should be imposed without amendment.

The reasoning underpinning the defendant’s proposal is not without merit. The experts are clearly of the opinion that the defendant should be subjected to minimal conditions towards the end of his ESO, subject to ongoing stability. The difficulty in this case relates to the defendant’s previous history. On 14 June 2019, the defendant was released from custody subject to supervision under the RRO. He reported to Community Corrections. He was spending his spare time working at his aunt’s business, which was a cheese factory in Padstow. He commenced a TAFE course in project management on 12 July 2019. On 29 July 2019, the defendant’s aunt reported that he was progressing well.

On 23 September 2019, the defendant’s mother died. Prior to her death, he had been visiting his mother every day at a nursing home. [33] On 10 October 2019, the defendant’s aunt reported the following his mother’s death, she was concerned that he was spending a considerable amount of time and social media, which was impacting his work and study. On 24 and 31 October 2019, the defendant failed to report to Community Corrections. [34]

On 12 November 2020, the defendant failed to make himself available for a home visit in breach of the RRO. [35] On 26 November 2020, he failed to accept an antipsychotic depot injection as directed by Bankstown Mental Health Service, in breach of the RRO. [36] On 26 November 2020, when the defendant was subjected to a search for the purpose of monitoring ongoing compliance with the conditions of his FPO and WPO, he was found to be in possession of a book titled “Fortress of the Muslim”. Pages of the book which had been “dog-eared” contained references to “killing infidels” and “killing non-believers”. [37]

On 4 December 2020, the defendant failed to accept an antipsychotic depot injection as directed by Bankstown Mental Health Service, again in breach of the RRO. Between 24 December 2020 and 12 April 2021, the defendant failed to book an appointment with an Islamic psychologist, as part of the de-radicalisation program, in breach of the RRO. [38]

On 1 February 2021, the defendant was charged for the offence of possessing a prohibited drug, contrary to 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), namely, 7.7g of cannabis, an offence for which he was fined $750. While on the face of it not a serious offence, it raises concern about the defendant using prohibited drugs to self-medicate.

In February and March 2021, the defendant failed to attend an appointment with a private psychiatrist as arranged by Bankstown Community Health, failed to report to Community Corrections as directed, reported ongoing visual and auditory hallucinations, and blamed his deterioration on his medication.

On 16 April 2021, police attended the defendant’s home and conducted a search of the premises in relation to the enforcement of the FPO. Police located a loaded black sawn off double barrel shot gun with a modified grip in the wardrobe of the defendant’s bedroom. Police also located three shotgun shells at the premises. He was arrested and conveyed to Bankstown Police Station where he was charged with five offences pursuant to the Firearms Act. The defendant was remanded in custody. On 17 July 2021, he was entered into the MRRC Mental Health Screening Unit after exhibiting features deemed consistent with decompensation of schizophrenia. [39] By 20 July 2021, Community Corrections considered the defendant’s response to supervision to be unsatisfactory. On 24 July 2021, an application for a FCTO was made in relation to the defendant. The Mental Health Review Tribunal (the Tribunal) made a further FCTO on 20 August 2021. The Tribunal noted that the defendant was considered a strong risk of relapse without an order, and a risk of violent behaviour when unwell. [40] The defendant’s conduct in custody from March to April 2022 discloses that the defendant continued to experience auditory hallucinations and exhibited abusive conduct.

On 22 April 2022, the defendant was sentenced at Bankstown Local Court in relation to the Firearms charges to an aggregate term of imprisonment of 24 months, with a non-parole period of 13 months’ imprisonment. That sentence was appealed successfully. The defendant was re-sentenced to a fixed term of 18 months’ imprisonment. On 7 June 2022, the defendant was convicted and sentenced for the breaches of his RRO. Justice Hamill revoked the RRO and imposed a CCO for three years.

I have endeavoured to summarise the defendant’s history of non-compliance that, in many instances, is inextricably related to his debilitating mental health issues. This is a brief summary, but it demonstrates a pattern of initial compliance, with a decline in compliance over time. In these circumstances, I am not persuaded that the standard electronic monitoring condition should be amended. In light of the history of non-compliance, the defendant must be closely monitored to reduce the risk of commission of a serious terrorism offence, or otherwise failing to comply with other conditions.

The standard condition allows for a degree of flexibility on the part of the EO in that the defendant must wear electronic monitoring equipment as directed. Although left to the discretion of the EO, the standard condition allows for a reduction in electronic monitoring or suspension of it all together where the defendant is stable and complying with other conditions.

The plaintiff opposes the proposed amendment, submitting that the standard condition provides a protective aspect for the defendant because it ensures that he is familiar with the by-laws and rules of the nominated accommodation provider. The management of the conditions by EO is said to be undertaken in a “common-sense fashion” and it is highly unlikely that the defendant would be breached if he failed to comply with by-laws such as “not putting the bins out or not turning the lights out”.

The defendant submitted that the proposed amendment is intended to prevent the over-criminalisation of the defendant. He is currently residing in supported accommodation and will likely do so for the entirety of the two-year order. These facilities come with a set of house rules, some of which are relatively benign. The standard condition gives rise to a risk that the defendant’s failure to comply with any of the by-rules would lead to breach proceedings.

On the one hand, the standard condition is too restrictive and does give rise to the risk of potential breach proceedings for non-compliance with relatively benign rules. I accept that EOs endeavour to enforce the conditions in a “common-sense fashion”, however, the issue is not whether an EO will enforce the conditions in an arbitrary or punitive way, but rather the importance of crafting a condition that will strike a balance between ensuring that the defendant does not do anything to cause his eviction on the one hand, and reduce the risk of over-criminalising conduct that may amount to no more than non-compliance with relatively benign rules, on the other hand.

That said, I am not persuaded that the proposed condition provides the certainty required for the defendant. This is particularly so having regard to the medical evidence. I intend to strike the appropriate balance by adding condition 12A, which will read: “it will not be a breach of condition 12 if the non-compliance with the rule or bylaw is trivial and not continuing”. I appreciate that the word “trivial” may lend itself to different interpretations. However, the defendant’s interests are protected because in order to constitute a breach, any non-compliance with a by-law must not only be something more than “trivial”, but it must also be continuing.

The defendant’s proposal in respect of condition 17 is based upon similar reasoning to that advanced in support of the proposed amendment to condition 1, namely, that it provides certainty to the defendant and limits the breadth of the power vested in the EO.

The plaintiff is concerned that the proposed amendment is too restrictive and that there may be circumstances during the supervision of the defendant where it is necessary for an EO to direct that he not attend the particular premises until a risk assessment is undertaken. An EO will require flexibility in determining, or directing, that a particular place should not be visited by the defendant.

I am not persuaded that the defendant’s proposal is restrictive. Clearly, an EO would not exercise his/her discretion to prohibit the defendant from frequenting, or visiting, any place, or district, on arbitrary grounds. The proposed amendment is couched in terms of the belief on reasonable grounds of the EO, which provides flexibility for the EO. Equally, such an amendment provides certainty to the defendant and goes some way to addressing his persecutory beliefs by ensuring that he understands that the strict restrictions on his movements are imposed on reasonable grounds.

I am, therefore, satisfied that the proposed amendment to condition 17 is appropriate.

The defendant’s proposal is opposed. The plaintiff relies upon the defendant’s history of refusing to take medication and self-medicating with cannabis in support of the submission that to give the defendant latitude is not conducive to ensuring compliance with his treatment regime and integration back into society.

The plaintiff seeks the proposed amendment to prevent a situation where simply missing medication on one day, or ceasing medication due to adverse side-effects, would lead to criminal consequences. In support of that contention, the defendant relies upon his complex set of medical conditions, including the treatment resistant nature of his schizophrenia, as requiring “extra breadth” to reduce the risk of breach proceedings.

The defendant does not take issue with a condition that he must take medications that are prescribed to him by his healthcare practitioners. The concern is reducing the potential for breach proceedings and the serious consequences that flow in circumstances where he has either forgotten to take his medication, or is suffering adverse side-effects.

It is precisely because of the defendant’s serious and complex mental health issues and history of non-compliance with his medication that he must be subject to a condition that requires him to take his medication. As far as possible, the condition must be directed at ensuring that the defendant understands the importance of taking his medication as required. I am persuaded, however, that the condition should more nuanced, so as to adequately address circumstances where the defendant is suffering from adverse side-effects. To achieve that end, I intend to add condition 33A which will read: “in the event that the defendant suffers adverse side-effects from his medication, he is to notify his EO immediately and in those circumstances non-compliance with condition 33 will not be considered a breach until after the defendant has been directed to, and attended, the healthcare professional responsible for prescribing the medication and be given an opportunity to recommence the medication if it remains prescribed”.

Accordingly, I make the following orders: