State of New South Wales v Hardy

1. [1]

   HIS HONOUR: By amended summons filed in court on 30 March 2021, the State of New South Wales seeks orders against Christopher Bruce Hardy pursuant to the Terrorism (High Risk) Offenders Act 2017. For the purposes of the proceedings before me today, the State seeks only the following orders:

   1. (1)

      An order pursuant to s 24(5) of the Terrorism (High Risk) Offenders Act 2017,

   2. (2)

      An order pursuant to s 27 of the Act, that the defendant be subject to an Interim Supervision Order commencing on the date of this order.

   3. (3)

      An order pursuant to s 28(1) of the Act, that the Interim Supervision Order be for a period of 28 days.

   4. (4)

      An order pursuant to s 29(1) of the Act, directing that the defendant comply with the conditions set out in the schedule to the amended summons for the duration of the order specified at order 3 above.

Background

1. [2]

   Mr Hardy is 48 years old with no significant criminal history prior to his commission of several offences in March and May 2017 that gave rise to the original Extended Supervision Order.

2. [3]

   On 3 March 2017 staff arrived at the Charlestown parliamentary office of local (opposition) member for NSW State Parliament Ms Jodie Harrison. On opening the door, staff located two envelopes situated on the office entrance floor. Both envelopes were addressed as follows:

3. [4]

   Inside each of the envelopes was material printed from the internet website www.peoplesmandate.iinet.net.au. This material included writings to the effect that the Commonwealth of Australia is a corporation, controlled by foreign corporations, a doctrine consistent with the beliefs of the Sovereign Citizen Movement.

4. [5]

   A few months later, on 2 May 2017, at the request of Mr Hardy's landlord, police conducted a welfare check on him at his business premises. This search occurred in the context of a dispute between Mr Hardy and his landlord about mould, an issue with which Mr Hardy had become and remains obsessively fixated. In the course of that welfare check, and later warrant search and seizure action, some prohibited weapons were located at Mr Hardy’s business premises including nun-chucks, a slingshot with ball bearings, a replica pistol, a large number of large decorative knives, long torches/batons and a 3D printer. There was in addition voluminous print and electronic material evincing anti-government sentiment (indicating a strong attachment to the Sovereign Citizen Movement) and the infliction of injury and death in military contexts, including manuals on how to make booby-traps and explosives.

5. [6]

   Fingerprints on the envelopes located in March 2017 were subsequently linked to Mr Hardy. Mr Hardy was arrested, charged with the index offending (possessing an unregistered firearm; possessing prohibited weapons without a permit, and sending the document threatening death to Ms Harrison MP), and released on bail. In September 2017, after failing to appear at Court, Mr Hardy's bail was revoked.

6. [7]

   In December 2017, while in custody awaiting the charges for the index offending to be finalised, Mr Hardy was served by NSW Police with Firearms and Weapons Prohibition Orders. Police attached to the Fixated Persons Investigations Unit also searched his residence where a commercial grade pressure cooker and a USB were observed. Later inquiries suggest the pressure cooker had been purchased by Mr Hardy in November 2016. In February 2017 he had accessed a video on YouTube entitled "See the difference between pipe bombs and pressure cooker bombs". Material seized on 3 May 2017 included printed instructions relating to creating an explosive device using a pressure cooker.

7. [8]

   In February 2018, Mr Hardy pleaded guilty to offences relating to the threatening letter and the weapons and firearm possession, but later denied responsibility for sending the letter, a denial that he maintains. He received sentences totalling an aggregate of 16 months imprisonment, commencing on 19 September 2017, with a total non-parole period of 12 months. The day before Mr Hardy was due for release on parole on 19 September 2018, his statutory parole order was revoked by the State Parole Authority.

8. [9]

   In October 2018 police executed a search warrant at Mr Hardy's residence. A USB and the 3D printer previously seen at Mr Hardy's business premises were seized. The USB contained 411 digital blueprints for the 3D printing and manufacture of 12 firearms and replica firearms, parts or non-firing ammunition. The blueprint material had been put onto the USB before Mr Hardy's initial arrest in May 2017 and corresponded with the contents of his desktop computer seized from his business premises in May 2017.

9. [10]

   Expert examination of the 3D printer concluded it could produce physical parts from digital blueprints, although the device did not appear to have been used for any significant duration or to create any significant number of objects.

10. [11]

    On a different 3D printer, but utilising the same principles of technology as the 3D printer seized from Mr Hardy's premises, police produced physical models from a selection of digital blueprints taken from the USB.

11. [12]

    At a preliminary hearing for the original Extended Supervision Order application in December 2018, and again at the final hearing in April 2019, Mr Hardy was assessed by Button J as an eligible offender under the Act on the basis of the threatening envelopes sent by him in March 2017. His Honour considered that his conduct amounted to a statement advocating support for violent extremism, thus rendering him a "NSW terrorism activity offender" pursuant to s 10 of the Act.

12. [13]

    On his release from custody on 31 January 2019, Mr Hardy was subject to an Interim Supervision Order following the completion of his original sentence on 18 January 2019 and his release on bail for the blueprint offences. His Honour imposed a two-year Extended Supervision Order with comprehensive conditions, commencing on 29 April 2019.

13. [14]

    After multiple listings of the 2017 blueprint offences matter for contested hearing, Mr Hardy ultimately pleaded guilty in December 2020 to a representative count for possessing all 411 blueprints relating to 12 firearms and replica firearms. For the 2017 blueprint offence Mr Hardy is now serving a further sentence of 18 months imprisonment, to be served by way of Intensive Corrections Order, which incorporates a community work order. The sentence was imposed on 11 December 2020 and will expire on 10 June 2022.

14. [15]

    Mr Hardy also remains subject to the Firearms Prohibition Order and Weapons Prohibition Order made on 22 November 2017. These orders have no time limit. In addition to prohibiting him from acquiring, possessing or using a firearm, prohibited weapon or firearm part or ammunition, these orders also provide for the search and seizure of him and premises and vehicles under his control, occupation or management.

Consideration

1. [16]

   Sections 20 and 27 of the Act are in these terms:

2. [17]

   For the purposes of this preliminary hearing only, Mr Hardy does not contest the matters that the State is required by s 20 (a), (b) and (c) to prove before an Interim Supervision Order can be made. I am otherwise satisfied on the evidence before me that those matters have been established.

3. [18]

   Furthermore, subject to me being satisfied of the matters to which s 27 refers, Mr Hardy does not oppose the making of the following orders:

   1. (1)

      An Interim Supervision Order pursuant to ss 27 and 28 of the Act for a period of 28 days commencing on 29 April 2021.

   2. (2)

      An order appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations of him and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court pursuant to s 24(5) of the Act.

   3. (3)

      An order directing Mr Hardy to attend those examinations.

   4. (4)

      An order that he comply with any conditions imposed under the Interim Supervision Order.

4. [19]

   It is accepted that Mr Hardy’s current supervision will expire before these proceedings are determined: s 27(a) of the Act. It remains for me to determine whether it appears that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 27(b) of the Act.

5. [20]

   It has regrettably become an exceedingly onerous task in matters of this kind even to determine what is the supporting documentation upon which the State relies for the making of an Extended Supervision Order. In a fashion that appears now to be customary, the State has provided me with three volumes of what is described as a Preliminary Tender Bundle, in this case totalling 1,263 pages, including the written submissions in support. Precisely how one is expected meaningfully and fairly to assess all this material, even on a preliminary application and usually in a limited timeframe, is difficult to discern. It is a matter of some considerable assistance to the Court that those advising defendants in such matters, when appropriate, limit their opposition to the real issues in dispute. This is such a matter.

6. [21]

   However, the supporting documentation to which the State wished to direct my attention was said to be all the three volumes of the material to which I have just referred. Unfortunately, not all this documentation was necessary reading for me to form the conclusions required for the disposition of this preliminary application.

7. [22]

   It is not my task to predict the ultimate result in these proceedings. The material that I am asked to consider does not yet include any documentation or other evidence from Mr Hardy upon which he may seek to rely. I am required to proceed simply upon the assumption that the facts alleged by the State in the supporting documentation are capable of proof, not that they have been proved. The standard required is lower than that which will apply to the making of an Extended Supervision Order.

8. [23]

   At least the following things, helpfully summarised in the State’s submissions, emerge at this preliminary stage, from the documentation upon which the State relies.

9. [24]

   By the time of the final hearing in April 2019, multiple risk assessment reports prepared by psychologists and psychiatrists were available. Those reports differed in their conclusions as to the level of risk Mr Hardy posed of committing a serious terrorism offence if not kept under supervision under an Extended Supervision Order. He was variously assessed as posing a low and high relevant risk.

10. [25]

    Button J concluded that Mr Hardy’s conduct in sending the letter did not itself amount to a “serious terrorism offence”. Nevertheless, when considered together with the surrounding circumstances arising from the whole of the evidence (including “the alleged downloading of the blueprints for the manufacture of plastic firearms by a person in possession of a 3D printer”), his Honour was ultimately satisfied that Mr Hardy posed an unacceptable risk of committing a serious terrorism offence, as required by s 20(d) of the Act.

11. [26]

    On sentence, Mr Hardy relied on unsworn statements from two people. One statement corroborated Mr Hardy’s account that he had obtained the 3D printer by a “barter” with a school science teacher. The other statement partially corroborated Mr Hardy’s account of an intention to make miniature firearms jewellery (described as “a line of jewellery that included miniature firearms with flowers coming out of the barrel”). Mr Hardy’s account, and those of the statement makers, have yet to be given and tested as sworn evidence.

12. [27]

    According to those responsible for Mr Hardy’s supervision under the Intensive Corrections Order, upon the expiration of the existing Extended Supervision Order, Mr Hardy’s supervision will likely be suspended altogether, because of his “low” risk rating on the Level of Service Inventory – Revised assessment tool. That tool assesses an offender’s general risk of reoffending only.

13. [28]

    Since the Extended Supervision Order was imposed in April 2019, Mr Hardy has complied with the attached conditions and the directions of those supervising him.

14. [29]

    A risk assessment report by Forensic Psychologist Ahu Kocak dated 8 February 2021 prepared for the present proceedings concludes that Mr Hardy currently poses a “moderate” risk for violent extremist offending or activity. However, notwithstanding Mr Hardy’s compliance with the conditions, and some engagement with a THRO Psychologist, he remains unreceptive to interventions.

15. [30]

    Also, favourably to him, Mr Hardy has not displayed any overt behaviours consistent with his previous anti-authority and violent extremist thinking during his extended supervision. However, he appears on one view to have maintained – and routinely voiced to those supervising him – strong beliefs of victimisation, persecution and individual personal grievance towards government authority, consistent with his previous thinking.

16. [31]

    Simultaneously, Mr Hardy has continued to deny any past or current interest in the beliefs of the Sovereign Citizen Movement. He has also continued to deny that he has any mental health issues or criminogenic needs.

17. [32]

    The risk assessment report author considered that there appears to be “no genuine or intrinsic change” from his assessed risk at the time the original Extended Supervision Order was made. According to the author, the explanation for any notable change in Mr Hardy’s risk profile since then is merely the effect of the restrictions imposed under the order.

18. [33]

    This is consistent with the opinion of Mr Hardy’s treating psychologists, who consider that his overall risk profile has only declined because of the “containment effect of his conditions along with [his] current avoidant behaviours, rather than being reflective of intrinsic change to his primary indicators”.

19. [34]

    Mr Hardy has a minor reported history of drug use. Until relatively recently there had been no clear or confident diagnosis of any mental health condition or disorder explaining or informing his conduct. However, various opinions have now been expressed about potential disorders, including pathological personality traits.

20. [35]

    Mr Hardy was assessed by Dr Bench, a psychiatrist, in late 2020 and again in early 2021. Dr Bench reviewed the earlier expert reports and interviewed Mr Hardy on two occasions. He concluded “with a reasonable degree of medical certainty… Mr Hardy was suffering from a psychotic illness, likely Delusional Disorder, at the time of the index offences”. The diagnosis is consistent with observations made in earlier psychological assessments. Such disorder is characterised generally by decompensation to the point of psychosis during times of stress.

21. [36]

    Dr Bench also raised a possible differential diagnosis of a mood disorder, such as Bipolar Disorder, manic with psychotic features. He also noted that whereas Mr Hardy “may well no longer hold such beliefs to delusional intensity… there [is] some degree of obsessionality or overvalued ideas… likely based upon a vulnerable personality such as Schizotypal Personality Disorder”. He observed that Mr Hardy “may well have some overvalued ideas [that have] persisted to the time of the second evaluation”.

22. [37]

    Dr Bench has recommended Mr Hardy be prescribed a low-dose anti-psychotic medication. He said “the goals of treatment would be to decrease any angst or anxiety provoked by [delusional beliefs, or magical thinking], thus causing there to be a lower chance of his acting on any such beliefs, as opposed to a complete resolution of the delusional beliefs”. Mr Hardy has not yet commenced any anti-psychotic medication.

23. [38]

    Having regard to the documentation upon which the State relies in support of the application, I am satisfied that it would, if proved, justify the making of an Extended Supervision Order.

24. [39]

    Section 29 of the Act is as follows:

25. [40]

    It follows that none of the conditions contained in either s 29(1) or (1A) is mandatory. The respective submissions from the parties in this case proceeded upon that uncontroversial basis.

26. [41]

    The State has included a series of conditions for which it contends in the schedule to the amended summons. Mr Hardy agrees in large part with the proposed conditions but opposes some others. Mr Hardy’s position is set forth in the written submissions of Mr Ozen of Senior Counsel. In my view, at least some of the modifications to the State’s conditions proposed by Mr Hardy are appropriate and should be made on an interim basis.

27. [42]

    The State’s proposed Condition 3 says that Mr Hardy must follow all reasonable directions of his enforcement officer. Mr Hardy proposes an alternative formulation in these terms:

28. [43]

    The State is content with that proposed form of Condition 3 apart from the italicised words. However, Mr Hardy also proposes that Condition 3 should stand alone and that the State’s proposed Conditions 6 – 9 inclusive should be deleted. In my opinion, the State’s concerns and the purposes to be served are adequately met by the imposition of Condition 3 as follows:

29. [44]

    The State’s proposed Conditions 6 – 9 inclusive should be deleted. They are adequately covered by the form of Condition 3 that I intend to impose.

30. [45]

    Condition 5 requires Mr Hardy to wear electronic monitoring equipment. Mr Hardy currently wears such a device as a condition imposed by Button J. In my opinion, it is oppressive, invasive and disproportionate to the concerns expressed about Mr Hardy’s current risks. I propose to delete that condition.

31. [46]

    Condition 12 currently requires Mr Hardy to be confined to his residential premises between the hours of 9pm and 6am. There is agreement that this should be amended to 10pm and 6am.

32. [47]

    Finally, Condition 66 is currently in these terms:

33. [48]

    As Mr Hardy has submitted, this condition amounts to him being required to waive the confidentiality that would ordinarily otherwise attach to any communication between him and his healthcare providers. I am unable to accept that it is either appropriate or necessary. Indeed, on one view it is potentially entirely counterproductive to the extent that it might lead a person in Mr Hardy’s position, who was in need of sensitive and confidential care, to refrain from seeking such treatment because of understandable concerns about privacy. I am not satisfied that any such condition should be imposed in this case.

Orders

1. [49]

   In the circumstances I will make the following orders:

   1. (1)

      Order pursuant to s 24(5) of the Terrorism (High Risk) Offenders Act 2017,

   2. (2)

      (a) appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of Christopher Bruce Hardy and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

   3. (3)

      (b) directing Christopher Bruce Hardy to attend those examinations.

   4. (4)

      Order pursuant to s 27 of the Act, that Christopher Bruce Hardy be subject to an Interim Supervision Order commencing on 29 April 2021.

   5. (5)

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

   6. (6)

      Order pursuant to s 29(1) of the Act, that Christopher Bruce Hardy comply with the conditions set out in the schedule hereto for the duration of the order specified at order 3 above.

   7. (7)

      Stand over the proceedings before Bellew J on 8 April 2021.