State of New South Wales v Hardy

1. [1]

   By summons filed on 9 November 2022, the State of New South Wales (“the State”) applies for what would be, if the application is successful, the third extended supervision order against the defendant under s 25 of the Terrorism (High Risk Offenders) Act 2017 (NSW). (References to legislative provisions in this judgment are references to that Act unless otherwise specified).

2. [2]

   The Extended Supervision Order (“ESO”) to which the defendant, Mr Hardy, is currently subject was imposed on 26 July 2021 for a period of 18 months by Johnson J: State of New South Wales v Hardy (Final) [2021] NSWSC 900 (“NSW v Hardy (Final)”); Hardy v State of New South Wales [2021] NSWCA 338. It expires on 27 January 2023.

3. [3]

   By way of interim relief, the State seeks the imposition of an Interim Supervision Order (“ISO”) for a period of 28 days in accordance with the provisions of ss 27 and 28, the appointment by the Court of two qualified experts, being psychiatrists or registered psychologists to conduct separate examinations of Mr Hardy and furnish reports to the Court and an order directing Mr Hardy to attend those examinations. Those latter orders are sought under s 24(5).

4. [4]

   This judgment follows the preliminary hearing into the State’s application which the Court is required to conduct in accordance with the provisions of s 24(4).

5. [5]

   I have received the considerable assistance of written and oral submissions by Mr J Emmett SC and Ms Alice Zheng on behalf of the State and Mr D McLure SC and Mr J Wilcox on behalf of Mr Hardy. Without any intended disrespect to the careful arguments of counsel and because this will be the sixth judgment by the Court (including the Court of Appeal) dealing with Mr Hardy’s supervision under the Act and as there is no real dispute that the facts alleged in the supporting documentation relied upon by the State as referred to in s 23(3) would support the grant of the interim relief sought, I propose to deal with the matter relatively briefly.

Pre-conditions to interim relief

1. [6]

   Under s 27, the court may make an ISO if two conditions are satisfied, namely:

2. [7]

   The second condition is a reference to the pre-conditions specified in s 20 and the requirements of s 25. In their written submissions, Mr McLure and Mr Wilcox state (Working Folder (“WF”), Tab C [3]):

3. [8]

   It is well established that the jurisdiction exercised by the Court under the Act is “protective”, for this reason, the non-opposition of Mr Hardy notwithstanding, it is appropriate that the Court satisfy itself that the orders sought by the court should be made.

4. [9]

   I am satisfied that the pre-conditions specified in s 20 (a) to (c) have been made out. There is no question that Mr Hardy is an offender under supervision under the existing ESO, or that the State’s application has been made in accordance with the provisions of Part 2 of the Act. It is also the case that each of Button J, who made the first ESO (State of New South Wales v Mathers (a pseudonym) (No 2) [2019] NSWSC 473), Johnson J and the Court of Appeal held that Mr Hardy was a convicted NSW terrorism offender for the purpose of s 20(c)(iii) (see s 10(1)(c)(i)). Having regard to the provisions of s 50, my own view is that those earlier findings give rise to an issue estoppel in respect of that matter for the purpose of these proceedings. Lest I am wrong about that, I acknowledge the force of Mr McLure’s submission that given those earlier findings, the repetition of the same evidence and the supporting documentation would, if proved at the final hearing, not establish anything materially different.

5. [10]

   The central pre-condition relates to unacceptable risk. The question is whether the matters alleged in the State’s supporting documentation would, if proved, justify the Court being satisfied to a high degree of probability that Mr Hardy poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO. Mr McLure accepts that the s 23(3)(b) risk assessment report dated 16 September 2022 of Ms Ahu Kocak, forensic psychologist, if accepted at the final hearing, is capable of discharging that high onus (WF tab E).

6. [11]

   Mr Hardy declined to participate in an interview with Ms Kocak for the purpose of the preparation of her risk assessment report. Accordingly, she was restricted to a desktop review of Mr Hardy’s substantial file to make her assessment. She had met and assessed Mr Hardy in the past, but she stated, of course, that she was unable to give a personal account of Mr Hardy’s current clinical presentation and mental state. She relied upon the work of others in that regard. With these restrictions she applied the Violent Extremist Risk Assessment – 2R (“VERA – 2R”) using the available file information and assessed his overall risk profile for extremist violent offending/re-offending as being in the Low/Moderate range. She expressed her conclusions as follows (WFN p. 130 [106]):

7. [12]

   This aspect of the question of the sincerity or depth of Mr Hardy’s compliance with the conditions of the ESO and engagement with its therapeutic aspects is a central aspect of the State’s case. It may be said that this is likely to be a central issue should the matter proceed to a final hearing.

8. [13]

   Despite having pleaded guilty to the index offending, Mr Hardy has virtually ever since protested his innocence, stating he pleaded guilty on legal advice and offering an account apparently consistent with his innocence to explain the forensic evidence against him. The index offending, as the judgments to which I have referred made clear, is a conviction for sending a document to the State member for Charlestown threatening death or grievous bodily harm contrary to s 31(1) of the Crimes Act 1900 (NSW), two counts of possessing a prohibited weapon without permit contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) and one count of possessing an unregistered firearm, a pistol, contrary to s 36(1) of the Firearms Act 1996 (NSW). Following his arrest and in the execution of a search warrant police seized a body of extremist literature related to right wing extremism associated with the Sovereign Citizens Movement and the home manufacture of explosives. An examination of his computer revealed a number of other internet searches relevant to those matters.

9. [14]

   The threat to the Member of Parliament was in the following terms:

10. [15]

    Mr Hardy’s bail was revoked, and he was committed to custody on remand on 19 September 2017 for failing to appear in accordance with his bail acknowledgment. He was sentenced for all this offending on 21 February 2018 by Magistrate Brennan sitting at the Newcastle Local Court. His Honour made the following remarks:

11. [16]

    Prior to his release from custody, on 20 November 2018 Mr Hardy was charged with 12 offences of possessing digital blueprint for the manufacture of firearms contrary to s 51F(1) Firearms Act. This is why his parole was revoked. He pleaded guilty to these charges and on 11 December 2020 was sentenced in the Toronto Local Court to a term of 18 months imprisonment to be served by way of an Intensive Corrections Order.

12. [17]

    It has been a feature of Mr Hardy’s presentation over the years that notwithstanding his pleas of guilty, as I have said, he has maintained his innocence and provided exculpatory accounts explaining his apparent involvement. These are matters which, it is apparent, were important to Johnson J’s conclusions: see NSW v Hardy (Final) [385], [392]. Part of the State’s case is that Mr Hardy’s mindset of denial extends to a denial that he experienced mental health problems when the index offending occurred in 2017. He continues to deny any mental health issues today notwithstanding the body of expert psychiatric opinion: see for example, supplementary report of Dr Christopher Bench dated 1 February 2021 (Exhibit WFN). Dr Bench was of the opinion that Mr Hardy was probably suffering a delusional disorder at the time of the index offending. He considered he probably had a vulnerable personality “such as a schizotypal personality disorder”.

13. [18]

    It will be the State’s case at the final hearing that there has been no material change in Mr Hardy’s mindset, beliefs or presentations since the current ESO was imposed. It will submit that the allegations in its documentation demonstrate: a lack of insight; a lack of meaningful psychological engagement and progress; and a material set of fixed or fixated beliefs relevant to his risk of re-offending.

14. [19]

    Mr Hardy will likely join issue with each of these allegations at the final hearing. But it is not my role to evaluate the issue or to attempt to predict the outcome now. My task is that fixed by the statute and in particular s 27(b). I remind myself that a serious terrorism offence for the purpose of s 20(d) means an offence against Part 5.3 of the Criminal Code Act 1995 (Cth) for which the maximum penalty is seven or more years of imprisonment. As Basten JA pointed out in the Court of Appeal (at [8]) the definition of terrorist act in the Criminal Code s 100.1 is complex. In broad terms, sufficient for present purposes, a terrorist act is an action done with the intent of advancing a political, religious or ideological cause and with the intention of influencing government or intimidating the public or a section of the public. Relevant actions include those that cause death or serious harm to a person, endanger life or damage to property. There are other categories of action which do not fit within the risk scenario poatulated by Ms Kocak which relates most readily to a direct interpersonal threat toward a person against whom Mr Hardy harbours a grievance such as a public figure or law enforcement officers. The risk would be heightened if his personality vulnerability caused him to decompensate mentally to the point where his previous probable delusional disorder resurfaced.

15. [20]

    Although there may be an air of artificiality surrounding this degree of specificity, it is important to bear in mind that at the final hearing the State will need to prove more than a low/moderate risk of “extremist violent offending”; it will need to prove to a high degree of probability of an unacceptable risk of committing a serious terrorism offence most likely within the range of actions to which I have referred. This is not a foregone conclusion, but I repeat, this is not for me to say. It is also appropriate that I remind myself, as Mr McLure reminded me, that Johnson J said (at [405]):

16. [21]

    For these reasons I am satisfied that the matters alleged in the State’s supporting documentation, would if proved at the final hearing, justify the finding to the requisite high degree of probability that Mr Hardy poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO.

Mandatory considerations

1. [22]

   I have also had regard to the provisions of s 25 and borne in mind that the safety of the community is the paramount consideration. I have also made reference to the mandatory matters prescribed by s 25(3) to the extent to which that evidence is currently available. Certainly, I am satisfied that the State’s documentation referred to in s 23(3) addresses each of those matters with the exception, obviously because they are currently unavailable, of the reports of the court appointed experts. I have already referred to material relevant to paragraphs (b), (c), (h), (j) and (k) and I will not repeat those references.

2. [23]

   From the Risk Management Report of Det. Snr. Constable Mathew Wise of 9 September 2022, part of the supporting documentation I am satisfied that there will be evidence that Mr Hardy can be reasonably and practicably managed in the community subject to appropriate conditions. This report also, in my judgment, indicates that evidence will be available at the final hearing which satisfies s 25(3)(e).

3. [24]

   So far as s 25(3)(f) is concerned, I have received a PRAXIS discharge report in relation to Mr Hardy. On the State’s case, it is of concern that he discontinued his engagement with that service on the basis he would undertake private psychological counselling in the community. He has done so with a Mr Vincent Cook. However, recent evidence suggests, the State will argue at the final hearing, that he denies the need for ongoing treatment. So far as s 25(3)(g) is concerned, it is not suggested that its necessary that Mr Hardy be kept in custody and as I have said, the evidence indicates he can be managed in the community. Section 25(3)(h) is concerned with the likelihood that Mr Hardy will comply with the obligations of an ESO. This is likely to be, as I have indicated, one of the issues at the final hearing. There is no doubt that Mr Hardy has been punctilious in observing the letter of the ESO and its conditions. The evidence the State will lead at the final hearing questions his true commitment. And this will be a central factor upon which the State will rely seeking an extension of the ESO. The same observations can be made in relation to s 25(3)(i). So far as s 25(3)(j) is concerned, until the index offending the applicant had no record to speak of, but the index offending and the subsequent offending contrary to s 51F Firearms Act of themselves are capable of establishing a pattern of concern. So far as s 25(3)(l) is concerned, while Mr Hardy disavows any adherence to any particular belief that may be associated with terrorism, the State’s documentation contains evidence of earlier support and advocacy for the Sovereign Citizen Movement.

4. [25]

   In my judgment the pre-conditions for making an ISO established by s 27 are satisfied in this case. To my mind there is no discretionary reason to refuse such an order.

Conditions

1. [26]

   As I have said save for two matters the parties are agreed that the ISO should direct Mr Hardy to comply with the same regime of conditions he is currently under save as to two matters. Those two matters are condition 3 as it relates to the obligation to provide a schedule of movements, and condition 64 imposing obligations on Mr Hardy to comply with prescribed medical treatment in relation to his mental health.

2. [27]

   A previous dispute concerning condition 66 allowing for the exchange of information between Mr Hardy’s supervisors and health professionals has been agreed. As I understand it, the agreement relates to restricting the matter to exchange of information involving mental health care practitioners.

3. [28]

   The current condition 3 is in the following terms:

4. [29]

   In support of maintaining the condition, the State has read the affidavit of DSC Wise sworn on 13 December 2022 to which I have had close regard. DSC Wise has emphasised that the provision of a schedule of movements assists community safety and supervision of the offender in a number of ways. First, it enables the relevant enforcement officer to assess any likely enhancement of risk involved in an offender’s movement in the community. Secondly, it facilitates spot checks on compliance. Thirdly, it enables an assessment of CCTV coverage to be made in advance which may facilitate obtaining relevant evidence. Fourthly, it engenders confidence that the whereabouts of an offender can be established at any given time.

5. [30]

   Mr Hardy opposes the condition as an unreasonable and unnecessary infringement upon his right of free passage in the community. He points out that he has complied with all conditions imposed on him since his release from custody in January 2019 without giving cause for any complaint. Given his compliance, it is submitted on his behalf, the provision of a schedule of movements is unduly intrusive. A sample of the weekly schedule was tendered as Exhibit 1. It is quite detailed, and no doubt takes some trouble to prepare.

6. [31]

   It is important to briefly summarise the history in relation to the provision by Mr Hardy of a schedule of movements. Button J imposed a condition of electronic monitoring and detailed conditions governing the preparation and the provision of a schedule of movements. As I have said, Mr Hardy complied in all respects with these conditions.

7. [32]

   Harrison J dispensed with conditions 6 to 9 dealing with the schedule of movements because he formed the view that condition 3 adequately covered that field. He formed the view that condition 5 requiring electronic monitoring was “oppressive, invasive and disproportionate” and deleted it: State of New South Wales v Hardy [2021] NSWSC 323 at [42] – [45].

8. [33]

   The regime imposed by Harrison J was continued by Johnson J when he made final orders. There was, however, debate before Johnson J about the schedule of movements (see Exhibit C). Senior Counsel then appearing for Mr Hardy expressed concern that the deletion of conditions 6 to 9 may be outflanked by condition 3 unless it was amended to provide “greater flexibility”. In argument Johnson J said he would be concerned if condition 3 “is meant to be an application by the State via the back door to have 6 to 9 operating on some discretionary basis”. He was reassured by Senior Counsel for the State that there was no attempt “to adopt some kind of back door entry”. However, Senior Counsel pointed out it was a prescribed condition. In his judgment Justice Johnson said (at [418]):

9. [34]

   If I may say so, with respect, notwithstanding his Honour’s expectation, within 2 days of the date of his Honour’s judgment the enforcement officer responsible for Mr Hardy’s supervision gave him Written Direction no. 2, in substance replicating conditions 6 to 9 of the regime imposed by Button J in all respects. So much for “flexibility” (see Exhibit A). That was amended on 21 September 2021 (Exhibit B) which relaxed somewhat the requirements for a schedule of movements. However, the practical effect as demonstrated by Exhibit 2 remains somewhat onerous from Mr Hardy’s point of view.

10. [35]

    I give full weight to DSC Wise’s explanation, but it must be pointed out the considerations to which he refers are somewhat general rather than specific to Mr Hardy’s case.

11. [36]

    I accept that the provision of a detailed schedule of movements is an appropriate tool of supervision in most cases. However, Mr Hardy is subject to a very detailed suite of conditions covering many aspects of his behaviour while in the community. He has in fact been compliant with that regime, even if the State succeeds in proving at the final hearing that his compliance has been begrudging rather than whole-hearted. It is apparent to me that he does live a stable lifestyle involving a relatively fixed pattern of activities and movements. I am not of the view that even the more relaxed regime in place since September 2021 is reasonable and necessary. However, like Johnson J, I am influenced by the consideration that condition 3 is a prescribed condition. I propose to allow it with some amendment to incorporate a regime of what is apparently referred to as “dry scheduling”. I would impose condition 3 but amend it by adding after the phrase “schedule of movements” the words “consisting of a broad outline of the defendant’s expected movements during the period intended to be covered”.

12. [37]

    Condition 64 need not be set out in full. Essentially it places an obligation upon Mr Hardy to comply with a course of medication prescribed for him by a treating mental health care practitioner. This is opposed as unnecessarily impinging upon Mr Hardy’s privacy and his physical integrity. I understand the gravamen of the arguments. However, as the supporting documentation proffered by the State includes persuasive medical opinion to which I have made reference already that the index offending was probably related to a period of mental decompensation involving the symptoms of a delusional disorder and the formulation of risk scenarios for management purposes incorporates the prospect of future deterioration, I am of the opinion that the proposed condition is appropriate to Mr Hardy’s risk and for the purpose of community protection. I do not regard it as unduly intrusive, oppressive or unreasonable in these circumstances to oblige Mr Hardy to comply with a course of medication prescribed for him for the treatment of any mental health condition by a treating duly qualified medical practitioner. Obviously, the obligation crystalises if and only if a treating doctor prescribes medication. That this has not been necessary so far does not mean it will not be. Some of the qualified experts have suggested a low dosage of medication may be appropriate having regard to the diagnosis of delusional disorder. I repeat, in my opinion, the condition is relevant to risk management and should be imposed.

13. [38]

    It follows that I will make orders in accordance with the proposed short minutes of order handed up Senior Counsel for the State. The conditions will need to be amended to incorporate what I have said about condition 3.

14. [39]

    The Court orders:

    1. (1)

       Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”),

    2. (1)

       Pursuant to s 27 of the Act, that the defendant be subject to an Interim Supervision Order commencing on 28 January 2023.

    3. (2)

       Pursuant to s 28(1) of the Act, that the Interim Supervision Order be for a period of 28 day.

    4. (3)

       Pursuant to s 29(1) of the Act, that the defendant comply with the conditions set out in the schedule to this Short Minutes of Order for the duration of the order specified at order 3.

    5. (1)

       Access to the Court’s file in this proceeding be restricted such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the access application.

    6. (1)

       Direct the parties to approach the associate to the HRO List Judge to obtain a suitable appointment for directions in the new law term.