State of NSW v TL (Preliminary)

There are two applications before the Court for determination.

The first is the defendant's application, brought by a notice of motion filed on 22 December 2021, seeking (inter alia) that the interim detention order made against him by Fullerton J on 21 August 2019 be revoked pursuant to s 48 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act).

The second is the plaintiff’s application, brought by a summons filed on 28 February 2022, seeking (inter alia) an order that the defendant be subject to an interim supervision order for a period of 28 days.

As a matter of practicality, the plaintiff’s application will only require determination in the event that the defendant's application for revocation of the interim detention order is successful.

On 31 July 2017 the defendant, in the company of others, attended premises where another person (the victim) resided with his wife and daughter. The victim and his family were at home at the time and many of the events which occurred, which are summarised below, were captured on CCTV footage.

The victim heard his front doorbell ring. The CCTV footage depicted a male wearing a “hoodie” partially covering his face at the front door (that person being one of the defendant’s co-offenders). In those circumstances, the victim did not answer the door but continued to view the CCTV monitor.

When the front doorbell rang again, the victim looked at other CCTV monitors. He saw the defendant standing on the path leading to the front door of the premises, holding an item which appeared to be a baseball bat. The victim did not open the door of the premises and remained silent inside with this family so as not to alert the defendant and his co-offenders to their presence.

A few minutes later, the victim received a call from an unknown number which he did not answer. Approximately 1 minute later, received a further call from a number which was displayed. Once again, he did not answer. A short time later the victim called the second number back. The defendant answered and demanded the sum of $60,000.00 referable to “the gold you guys took”. The defendant made it known to the victim that he knew his personal circumstances (including the number of members of his family) and threatened to surround the victim's premises with more people if his demand for money was not met. He also demanded to be given the victim's car and truck if the victim did not have sufficient money to pay him.

The defendant was charged with offences of being armed with intent to steal in company, and being armed with intent to commit and indictable offence. He was sentenced to imprisonment for 1 year and 6 months commencing on 22 February 2018 and expiring on 21 August 2019.

On 14 June 2019, the plaintiff filed a summons seeking (inter alia) orders pursuant to ss 41 and 42(1) of the Act. That application was heard by Fullerton J on 19 August 2019. In a judgment delivered on 21 August 2019 her Honour made orders (inter alia) that the defendant be subject to an Interim Detention Order. [1] Her Honour's orders were stayed pending the determination of a constitutional issue which was ultimately resolved in the plaintiff's favour. An appeal against that determination was dismissed by the Court of Appeal. [2]

The judgment of Fullerton J includes a number of matters relevant to the present application.

First, in addressing the likelihood of the defendant committing a serious terrorism offence, her Honour made reference to a psychological risk assessment report which included the following: [3]

Secondly, her Honour noted [4] the following additional observations in the risk assessment report:

Thirdly, her Honour noted [5] that during his period of custody, the defendant had incurred a number of institutional misconduct charges for both violent behaviour and general misconduct.

Fourthly, her Honour noted [6] that the defendant had also incurred an institutional misconduct charge for intimidation which arose from a threat to assault correctional staff.

Fifthly, in addressing the defendant's response to community supervision, her Honour noted that the risk assessment report included the following: [7]

Sixthly, her Honour noted [8] that the defendant had exhibited an established pattern of non-compliance with a number of community-based orders which were referred to in a risk intervention report in the following terms:

Seventhly, having noted the defendant's history of non-compliance with bail conditions, [9] her Honour addressed the defendant's criminal history, [10] describing it as “extensive”, and one that demonstrated “an escalation over time in both the violence and frequency of [his] offending.” Her Honour then set out the following summary of that history: [11]

Eighthly, her Honour found [12] that the defendant's (then) current and continuing affiliation with fundamentalist belief structures was demonstrated by his support for violent extremist activities, along with behaviour which exhibited elements of an extremist religious ideology.

Ninthly, her Honour noted [13] the reference in the risk intervention report that the defendant had first commenced to make statements in support of terrorism whilst in juvenile detention in 2014, and that his religious views and statements in support of violent extremism had increased since that time.

Finally, her Honour made reference [14] to the defendant's associations with organised crime and crime groups, the escalation of his extremist religious views, his associations with religious extremists, the use of weapons, and associated violence.

Having undertaken the evaluative exercise required under ss 25 and 39 of the Act, her Honour concluded (inter alia) that the defendant was at a high risk of engaging in extremist violence and that he had a violent ideation, including a willingness to die as a martyr for a religious cause. In respect of such matters, her Honour found [15] that the defendant had engaged in:

Since the index offences, the defendant has committed the following further offences:

On 18 February 2021 the defendant was charged with two counts of doing acts in preparation for a terrorist act, contrary to the provisions of the Criminal Code 1995 (Cth). Those matters remain before the Local Court. The defendant has since been released on bail in respect of those matters by orders of Ierace J

There is also some evidence that whilst in custody, the defendant has communicated with others who are known by the authorities to support violent extremism.

On 27 November 2021 the defendant was involved in an incident in custody and was transferred to Prince of Wales Hospital where he was diagnosed with a C5 burst fracture with spinal canal stenosis and a complete deficit below C6. He underwent surgery in the form of a C5 corpectomy with anterior fusion and iliac crest bone graft. He remained in the intensive care unit at the Prince of Wales Hospital until 9 December 2021 at which time he was transferred to the Spinal Injuries Unit under the care of Dr Sachin Shetty.

Dr Shetty’s report confirms that the defendant is a diagnosed tetraplegic as a consequence of his spinal cord injury. As a consequence, he:

Dr Shetty expressed the view that the best case prognosis for a person with the defendant’s injuries and disabilities would be the achievement of some functional recovery in his lower limbs that may allow him to stand up and take a few steps with a walker.

Dr Shetty gave evidence on the present application. He confirmed the nature and extent of the defendant’s injuries, and described the defendant's progress as “minor”.

Lynn Blecher, a Physiotherapist at the Prince of Wales Hospital, also gave evidence before me, having prepared a report in relation to the defendant of 21 March 2022. Ms Blecher is the defendant's primary treating physiotherapist. In summary, her evidence was that the defendant's presentation was characterised by:

Ms Blecher’s evidence was that the defendant is capable of using a mobile telephone by “knocking” the buttons with his knuckle, and that he is capable of using a keyboard in a way which was “slow and effortful”. She also said that the defendant’s rehabilitation from his injuries could extend to a period of up to five years, and may include further surgery in an attempt to increase the functionality of his hands which, if it were carried out, would extend his period of rehabilitation. Ms Blecher also gave evidence that the defendant’s injuries have resulted in a reduced respiratory capacity and that whilst he is able to breathe by himself, he has been recommended to have ventilatory support overnight.

I have already set out the views expressed in the risk assessment report which was before Fullerton J.

A further report dated 16 February 2022 was provided by Ms Filipa Abreu without the benefit of speaking with the defendant, who declined to be interviewed. Ms Abreu then provided another report of 21 March 2022, which was again prepared in the absence of the defendant being interviewed.

Ms Abreu assessed the defendant as falling in the high risk category for general offending. Whilst Ms Abreu expressly acknowledged the nature and extent of the defendant’s injuries, she expressed the view that the ongoing threat of actual physical violence “could not be discounted”.

Whilst I accept that there is evidence that the defendant continues to express extremist ideologies, there are obvious physical constraints imposed upon him in terms of putting those ideologies into effect. Ms Abreu concluded (inter alia) that the defendant’s risk of engaging in an act of violence remained within the high range. Whilst I accept that there is some risk, it is difficult to understand how this could realistically be assessed as high, given the nature and extent of the defendant’s injuries that I have previously outlined.

There are two risk management reports, the first of which was prepared by the High Risk Terrorism Offenders Division of the NSW Police. That report made reference to the defendant having the capacity, despite his injuries, to influence and incite others.

A Community Corrections Risk Management Report expressed generally similar views, and emphasised that despite his injuries, the defendant retained what might be described as an “organisational capacity” which could be deployed within the context of religiously motivated violence.

I accept that the defendant does have the respective capacities referred to in each of these reports. However, to the extent that those capacities rely upon the use of fine motor skills, they are affected by his injuries. For example, although theoretically the defendant can utilise a mobile telephone and a keyboard, his ability to do so effectively is severely compromised.

Senior counsel for the plaintiff submitted that a number of matters tended against the revocation of the interim detention order made by Fullerton J. It was submitted that notwithstanding the change of circumstances brought about by the defendant’s injuries:

Counsel for the defendant submitted that the defendant’s circumstances had significantly changed as a consequence of his catastrophic injuries, to the point where the order made by Fullerton J was no longer necessary. It was submitted that in light of the views of Dr Shetty, the defendant's spinal injury was so debilitating that there was no longer any risk of him committing a serious terrorism offence if he was not kept in detention. It was submitted that even if such a risk was identified, it was so low that it was not one that could be properly considered unacceptable so as to justify the continuation of the present order. Counsel emphasised that, on the evidence, the defendant was almost entirely lacking in any physical capacity, and that this was unlikely to change to any material degree.

Section 48(1) of the Act confers a discretion to revoke the order made by Fullerton J. Section 48(3) provides that, without limiting the grounds for the exercise of that discretion, the Court may revoke such an order if it satisfied that the circumstances have changed sufficiently to render such order unnecessary.

I was informed in the course of submissions that s 48 has not previously been the subject of judicial consideration. Section 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) confers a discretion on the Court to revoke an extended supervision order or interim supervision order made under that Act. Section 13(1B) of the CHRO Act is, for present purposes, in identical terms to s 48(3) of the Act.

In State of New South Wales v Kay [16] Wilson J took the view that the terms of s 13 of the CHRO Act conferred an unfettered discretion on the Court, subject to the objects and provisions of the CHRO Act. In State of New South Wales v Mills [17] Campbell J appears to have taken a different view, although his Honour did not refer to the decision Kay.

In the present case, the issue of the breadth of the discretion in s 48 of the Act was referred to in submissions, but was not the subject of full argument. I respectfully agree with Wilson J that the discretion in s 13 of the CHRO Act is unfettered, subject to the objects of the Act. The same view was taken by Walton J in State of New South Wales v Schmidt (Preliminary) [18] and by Hamill J in Manna v New South Wales. [19] Accepting that view, the discretion in s 48 should be viewed in the same way, namely as incorporating an unfettered discretion, subject to the objects and provisions of the Act.

I acknowledge that there is evidence which establishes that the defendant adheres to extremist beliefs. However, it will be obvious that a change in circumstances in the present case has been brought about by the defendant’s injuries. I have set out the extent and effect of those injuries above. They have an obvious, and severe, impact upon the defendant’s ability to undertake any physical act at all, including any act of violence. For the reasons previously stated, I am unable to accept the views of Ms Abreu that the defendant’s risk of engaging in an act of violence remains within the high range. I accept that there is some risk, but in my view it falls towards the opposite end of the scale.

In these circumstances I am not satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if he is not detained. In those circumstances, the order of Fullerton J should be revoked.

Having reached that conclusion, it remains to consider the plaintiff’s application for an interim supervision order, bearing in mind that orders have now been made by Ierace J releasing the defendant on bail in respect of the charges most recently brought against him.

Counsel for the defendant did not wish to be heard against the making of such an order. In particular, counsel took no issue with the fact that the formal requirements for the making of such an order were made out, and that it would be open to me to 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. That said, whether an interim supervision order should be made remains a matter for the Court.

I have had regard to all of the statutory factors and again bear in mind the evidence which tends to establish that the defendant continues to adhere to extremist beliefs. For the reasons I have already stated, the defendant’s injuries severely impede his ability to engage in any physical act, be it an act of violence or otherwise. That said, there remains a risk that he could (for example) communicate with and encourage others in a way which was consistent with his beliefs, and in a way which amounted to preparing, or planning for, a terrorist act.

In those circumstances I am satisfied that an interim supervision order should be made.

For these reasons I make the following orders: