State of New South Wales v Kiskonen (Preliminary)

1. [1]

   The plaintiff, the State of New South Wales, brings proceedings against Juha Kiskonen, the defendant, pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”), for an Interim Supervision Order (“ISO”) under s 27 of the Act for 28 days, with a view to obtaining an Extended Supervision Order (“ESO”) for three years on specific conditions. Ancillary orders are sought for the appointment of two psychiatrists or psychologists under s 24(1) of the Act and that the defendant be directed to comply with a series of conditions (55 in number), during the period of the ISO.

2. [2]

   The defendant opposes the imposition of an ISO or ESO.

3. [3]

   The Summons seeking these orders was dated 12 July 2021 and was filed on 13 July 2021. An Amended Summons was filed in Court with leave on 21 July 2021.The defendant is due for release at midnight on 29 July 2021.

4. [4]

   Due to the very late commencement of the proceedings and the very late notice to the defendant, he has had to compress both his time to give instructions to his legal representatives and their time to prepare his defence of this application. The quality of the written submissions provided by counsel for the defendant, and the relevance of the material provided by the defendant for me to consider, is commendable given the very short timeframe within which this has had to be prepared.

The Legislation

1. [5]

   The requirements for making an ESO are set out in ss 20 and 21 of the Act:

2. [6]

   Section 4 of the Act defines a “serious terrorism offence” as “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is seven or more years of imprisonment.”

3. [7]

   Sections 6 and 7 deal with the persons to whom the Act can apply. Section 7 defines an “eligible offender” as:

4. [8]

   Section 6 defines the words “serving a sentence of imprisonment”:

5. [9]

   The State says that for the purposes of s 20(c) of the Act, the defendant is a “convicted NSW terrorism activity offender” as defined in s 10 of the Act, relevantly as follows:

6. [10]

   Section 100.1 of the Criminal Code (Cth) defines “terrorist act” as:

7. [11]

   Sections 101.5 and 101.6 of the Criminal Code titled “Collecting or making documents likely to facilitate terrorist acts” and “Other acts done in preparation for, or planning, terrorist acts”, were said by the plaintiff to be relevant to potential future acts of the defendant and comprise illustrations of “serious terrorism offences” which the defendant poses an unacceptable risk of committing:

8. [12]

   Section 102.1 of the Criminal Code defines “terrorist organisation” as follows:

9. [13]

   Sections 24 and 27 of the Act deal with the making of an interim order. Relevantly those sections provide:

The principles articulated in the case law

1. [14]

   I gratefully adopt the summary of the principles to be applied at an interim hearing set out by Johnson J in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [44]-[52]:

The evidence

1. [15]

   The plaintiff relies upon the following evidence:

2. [16]

   The defendant relies upon:

The defendant’s personal circumstances and the relevant history

1. [17]

   The defendant was born in March 1970 and is 51 years of age. He works as a truck driver and at the time of arrest lived with his (de-facto) wife and two sons. He has a criminal record involving driving offences in 1997 and a destroy and damage property in 2014. He came to police attention in September 2019 in the context of an assault charge involving a neighbour. His behaviour at Picton Local Court in October 2019 was odd in that he denied that he was the named defendant and asserted that arresting police were, by arresting him, committing crimes that should be tried in the Hague. The Magistrate determined that if he, Mr Kiskonen was not in fact the defendant, then the person who was the defendant needed to be arrested and that led to a warrant being issued. The defendant was duly arrested at Court and the proceedings continued. He failed to appear on 29 October 2019, leading to other charges.

2. [18]

   All of this led to his coming under the observation of the New South Wales Police Fixated Persons Unit which, having observed him for a period, concluded, via DSC Gatward in December 2019, that he was “not a threat at that time”.

3. [19]

   However concerns about him continued and he was observed during both 2019 and 2020. DSC Reason in his affidavit sets out the bases upon which he holds concerns about the defendant as a member of the “United Kingdom of Australia”:

4. [20]

   These activities led to the arrest of the defendant at his home on 30 July 2020. He was charged with two counts of “use carriage service to menace/harass and/or offend” and with firearm offences related to a “gel-blaster pistol” found at his home.

5. [21]

   According to DSC Reason’s affidavit, the defendant’s take on his own activities was that his videos were not threatening, but “telling the truth about what would happen”.

6. [22]

   DSC Reason noted that the “Australia Day Ceremony” discussed in the defendant’s posts did go ahead on 31 July 2020, with UKOA members attending war memorials in Sydney, Melbourne, Adelaide, Perth, Brisbane, Cairns, Mackay, Launceston, Geelong and Canberra. DSC Reason said that the ceremonies in Sydney, Melbourne and Perth all exceeded 20 attendees and attendees were arrested or moved on in Melbourne and Sydney.

7. [23]

   There is other evidence relied upon by the plaintiff in the form of YouTube and Facebook material posted by the defendant and the comments posted by others in response:

8. [24]

   It is against this background that the materials the subject of the charges was published and sent by the defendant to DSC Gatward on 25 May 2020 and 27 July 2020. The key points of this correspondence are relevantly summarised in the Police Facts:

9. [25]

   The firearm offences are described in the Police Facts as follows:

10. [26]

    In his ERISP on 30 July 2020, a transcript of which was tendered, a long, largely incomprehensible, rambling series of answers were provided to questioning police. The defendant denied that he was inciting people to violence [3] stating: “I’m telling people not to cower in a corner at the sight of the police, to stand up to the police, but at the same time, do not raise a hand against the police, don’t be belligerent”.

11. [27]

    He was also asked whether he believed police should be hanged to which he replied “No”.

12. [28]

    He was asked questions about the role of the “military tribunal” he has referred to:

13. [29]

    This ERISP should be read against the background of the defendant’s articulated position in an email dated 7 May 2020 sent to DSC Gatward (that was not the subject of a charge) which included these propositions:

14. [30]

    Senior Counsel for the plaintiff, Mr Emmett, placed emphasis on a particular recurrent gesture he says that the defendant made in some of his YouTube material. In a presentation on 27 July 2020 the defendant outlined certain activity that was to take place on 31 July 2020 and made reference to a document that “has not been released yet” and then says this:

15. [31]

    Mr Emmett also drew attention to this part of a similar YouTube presentation in May 2020:

16. [32]

    I was informed by Mr Emmett that I did not need to watch the YouTube videos but the “gesture” each time was a physical gesture consistent with hanging.

Observations regarding the defendant’s mental health and the bases of the Community Treatment Order (CTO)

1. [33]

   The defendant was referred to the Mental Health Review Tribunal (MHRT) shortly after his arrival in custody. In a report of 8 September 2020, the Psychiatry Registrar from Justice Health stated that the defendant had been referred to the Mental Health Screening Unit in the context of “a deteriorating mental state”.

2. [34]

   On 10 August 2020, the defendant was reviewed by Staff Specialist Psychiatrist, Dr Keating. She was asked to see him in the context of a recent hunger strike and to examine whether he was psychotic. She noted the following:

3. [35]

   Dr Keating concluded her report as follows:

4. [36]

   Returning to the September 2020 report for the MHRT, the Registrar recorded that the defendant did not have a history of mental illness prior to custody, but that he had a “systematised paranoid delusion that there was unlawful military occupation of Australia” and that there are “two constitutions of Australia”, and due to these beliefs he believes that police officers should be “hung for war crimes”. He also has had “grandiose delusions that he is the Mayor of Campbelltown and had been putting flags around the suburb”. He described the defendant as being “very guarded” about the psychotic beliefs, and that he refused to engage with the treating team. He apparently had repeatedly told nurses he was “going to be released within days”, and “has friends in very high places”. The Registrar concluded that he was insightless into his persecutory delusions, and was a high risk of harm to others if his beliefs are challenged. At that time he continued to refuse psychiatric medication. The Registrar concluded that the risk to others was due to his untreated mental illness, and so he was transferred to Long Bay Hospital for involuntary treatment.

5. [37]

   Documents from the MHRT in early September 2020 noted the grandiose delusions against a background of systematised paranoid delusions. The MHRT agreed with the need for enforced treatment.

6. [38]

   A more detailed report of Dr Kansou, Registrar in Forensic Psychiatry, dated 19 October 2020 was prepared for a later hearing at the MHRT. This included detail that the defendant, despite denying he had any admission to psychiatric hospital or having ever been prescribed psychiatric medications before, had been admitted to Waratah House in September 2015 following an overdose, although at that point there was, it seems from the Discharge Summary, no sign of a mood disorder or psychotic disorder at that time.

7. [39]

   Dr Kansou’s report made reference to information obtained from the defendant’s de-facto partner that the defendant had “become increasingly preoccupied with online conspiracy theories, withdrawing from his family and becoming more grandiose and unable to be challenged” and when he was challenged he “would become verbally, but not physically, aggressive”. The de-facto partner also outlined certain behaviours on the part of the defendant that Dr Kansou thought may be features consistent with a narcissistic personality disorder.

8. [40]

   It was noted that the defendant had been on a hunger strike when he was first incarcerated due to his systematised delusional beliefs, believing he was a prisoner of war unfairly imprisoned. It was noted that he possessed poor insight into his condition, and had not been consenting to his medication in the beginning, but was at that time, reluctantly compliant with treatment.

9. [41]

   More detail was noted regarding the defendant’s personal history, including that he came to Australia from Finland when he was four years old and that he had worked many jobs including a sweeper in a mechanic shop, a fast food restaurant, carpentry and handyman jobs but that for the last 18 years he had worked as a glass recycling driver.

10. [42]

    The opinion and recommendation concluding the report stated that the defendant:

11. [43]

    The report of the MHRT dated 5 November 2020 relied upon the treating report and concluded that it was satisfied that the defendant continued to suffer from mental illness and required further inpatient treatment at the Long Bay Hospital. A further review was scheduled, at which time a Forensic Community Treatment Order (FCTO) would be discussed. It was noted that the defendant said that he would not take any medication which would “change his metabolic state”, but he did not explain what that meant. At that time the MHRT noted that the defendant was taking olanzapine which had recently been increased to 7.5mg per day and which was at that stage being administered by injection.

12. [44]

    On review on 23 December 2020 by Dr Sharma, Staff Specialist Psychiatrist, the defendant said that he no longer believed the things he had previously stated about the government not being legitimate and Steven being the King of Australia. Dr Sharma recorded as her “impression” that:

13. [45]

    In an assessment by treating psychiatrists at Long Bay Hospital in January 2021 prepared for a further MHRT hearing, the treating team noted that it had received registered post from one of the defendant’s “followers” telling them that they must release the defendant as he is being held illegally, and pleading his case to the Commonwealth Minister of Health Greg Hunt, and that the defendant had said that he had been instructed in his views by “Steven, the right and truthful king”.

14. [46]

    The assessment report concluded that overall, the defendant had shown improvement in his mental state, but was still insightless and “only reluctantly” accepting his medication, and concluded that he was suffering from a “delusional disorder, perhaps late onset schizophrenia (but possibly with an organic disorder) being a mental illness characterised by persecutory, grandiose and bizarre delusional beliefs”. It also noted that he had shown significant improvement in his mental state but there was risk of relapse and so the FCTO was requested to be put in place before release into the community. The report also concluded that he will “continue to benefit from his antipsychotic medication and further investigation of his medical condition, as well as ongoing psychoeducation”.

15. [47]

    In January 2021 a Forensic Treatment Plan was formalised which included monthly meetings with his psychiatric case manager in the correctional centre, a six weekly meeting with his treating psychiatrist, a requirement to accept treatment and medication as prescribed and to provide regular urine drug screening samples and to comply with necessary blood tests to provide for metabolic and clozapine level monitoring.

16. [48]

    The last review available in the evidence tendered where the defendant was actually interviewed and assessed was 22 June 2021, by a CMO, Dr Andrew White, who noted:

17. [49]

    The plaintiff argued that the requirements of s 27(a) of the Act are met given the defendant’s current sentence of imprisonment is due to expire on 29 July 2021 and the sentence of imprisonment was imposed for a New South Wales indictable offence - the firearms offences arising from the gel blaster gun found at his home.

18. [50]

    The Plaintiff submitted that the Court would be satisfied that the requirements of s 27(b) have been met because the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It was emphasised that the Court must take the allegations and documentation at its highest, and it is not for the Court at this stage to weigh up documents, or resolve any conflicts or inconsistencies which appear in the documentation, nor to predict the ultimate result or consider what evidence the defendant might present at final hearing.

19. [51]

    The defendant is a “convicted New South Wales terrorism activity offender”, having regard to the definition of that term in ss 10(1) and 10(1A) of the Act, because he has previously made a statement advocating support for violent extremism, or has previously had personal or other affiliation with a person, group or organisation that is or was advocating support for violent extremism: s 10(1)(c) of the Act.

20. [52]

    Having regard to the broad meaning of “violent extremism” that captures conduct that might not satisfy the technical definition of a “terrorism act”, particular matters were identified, said to be evidenced in the documentation supporting the plaintiff’s application, which would, if proved, amount to advocating support for violent extremism for the purposes of s 10(1)(c) of the Act:

21. [53]

    It was submitted that the fact that the threats appeared to contemplate some form of court or tribunal proceeding first occurring before the punishment of hanging, does not deprive the propositions expressed of their extremist character.

22. [54]

    In terms of assessing whether there was an unacceptable risk of committing a serious terrorism offence, the plaintiff emphasised the facts giving rise to the Commonwealth offences which stemmed from the defendant’s ideological connection with the UKOA movement, the ideology evidenced in his social media postings, as well as his poor mental health. It was argued that the material referred to in the Facebook posts regarding the activities of UKOA and that movement’s ideology comprise statements consistent with the use of a violent extremism to achieve their aims. This is in turn consistent with what the defendant says in his own Facebook and YouTube posts.

23. [55]

    Although recent communications between the defendant and his Justice Health mental health team appeared to include disavowal of his previously expressed beliefs, recorded conversations between the defendant and UKOA members on 29 January and 18 February 2021 suggest that he still maintains those beliefs.

24. [56]

    I interpolate here to observe that I am not persuaded that those phone calls form a solid basis for that submission. There are statements made in those calls by the defendant that suggest to the contrary, and the calls were almost five months ago.

25. [57]

    The plaintiff submitted that concerns regarding mental health comprise the nature of the defendant’s mental illness, the poor history of compliance with medication and his failure to comply with supervision by Community Corrections, as well is his lack of insight and impaired judgement.

26. [58]

    The written (and oral) submissions made on behalf of the plaintiff then descended into a level of complexity which it described as potential “risk scenarios”. The complexity of these potential, (and in some ways speculative), scenarios, to my mind underscore the speculative and uncertain nature of the risk allegedly presented by the defendant that he will commit a serious terrorism offence.

27. [59]

    The first scenario was said to comprise the defendant continuing with the conduct of the kind engaged in prior to his arrest and incarceration, and the second, the risk of escalation of his conduct.

28. [60]

    It was explained that the first risk was the defendant’s previous threats of hanging authority figures, including police, as threats of action that would fall within the definition of “terrorist act” in s 100.1(2) of the Code, but not ss 3. These are threats of an action that would result in death, and are threats made first, with the intention of advancing a political or ideological cause and second, with the intention of influencing the police or other public figures in the performance of their duties. It was argued that the defendant’s “continued adherence” to these previously expressed beliefs, indicates a real prospect of him resuming conduct of the kind engaged in prior to his arrest and so there is a significant likelihood of the defendant engaging in conduct that constitutes a terrorist act being an offence contrary to section 101.1 of the Code.

29. [61]

    The plaintiff accepted that the threats of violence are stated to only occur following the regime change for which the defendant advocates, but argued that this still satisfies the definition of “terrorist act”, and while the likelihood of threatened hangings might be low, and while the defendant may have had no intention to encourage immediate acts of violence, such threats are significant because they might “create a milieu which fosters the prospect that personal injury will be suffered by innocent members of the community”. [5]

30. [62]

    Alternatively, it was submitted that the defendant’s conduct in publishing the videos on Facebook containing the material described above, may lead to offences contrary to s 101.5 (collecting or making documents likely to facilitate a terrorist act) or s 101.6 (doing any act in preparation for planning a terrorist act) under the Code, particularly as the defendant is only required to be “reckless” as to the connection between his conduct and a terrorist act in order to establish those offences.

31. [63]

    The plaintiff argued that the connection between the videos of the kind made by the defendant and the commission of a terrorist act is a real one, given that those videos identify persons said by the defendant to be a legitimate target for retributive violence.

32. [64]

    Whilst there are disavowals of violence in the material, these disavowals occur alongside statements such as “...got to start carrying out action to deal swiftly with the foreign administrators ruling over a country with no rule of law” and “… I have now given you enough evidence to crucify this man” and “…no one is truly prepared for what’s coming”.

33. [65]

    I interpolate here in regard to these statements that I do not see any of them as having sufficient clarity of proposed action to amount to a “call to arms” for violence.

34. [66]

    Regarding the second risk scenario, the plaintiff submitted that the Risk Assessment Report author has concluded that the defendant is “vulnerable to acting or engaging in violence to achieve the goals of the UKOA, if the narrative was to shift towards the people of Australia adopting roles within the kingdom that is creating perceived legitimacy for engaging in violence, warfare policing and/or military jurisdiction.”

35. [67]

    The plaintiff submits that this risk is unacceptable, given that the defendant had previously made threats to police officers that may reasonably be interpreted as death threats.

36. [68]

    His previous non-compliance with the CCO which occurred back in May 2020 was premised upon his ideological beliefs. This is cited as evidence of risk, as is his reluctance to engage in mental health treatment. His criminal history involves some violence and some past difficulty with anger management (based on information provided by his de-facto partner) and these too are said to be matters that heighten risk.

37. [69]

    It was submitted that the Court should place weight on the conclusion by the Risk Assessment Report author that he is at “moderate to high risk of engaging in politically motivated violence”.

38. [70]

    He was not compliant with his CCO. There is a risk that he may not comply with his CTO. His beliefs and commitments amount to a type of “call to arms” to others with use of social media posts. He has some influence as a “leader” of the UKOA movement.

39. [71]

    In broad terms, in relation to the relevant s 25 factors, before incarceration his behaviours were escalating, as was his level of fixation and obsession with “the cause”. His delusional belief system regarding the legitimacy of the Australian government has real capacity for risk that he will either engage in activity, or disseminate extremist ideology to radicalise and influence others.

40. [72]

    It was submitted by Mr Emmett that the Court should not infer that the defendant’s attitude or beliefs have changed or lessened due to effective treatment of his mental illness, as the position is equally consistent with the medication having no effect, but the defendant choosing to hide his beliefs so he can be released, particularly given his perception stated in his February 2021 phone call with Mr Cook that the reason he was refused bail was his adherence to UKOA beliefs.

41. [73]

    I note that there is no evidence that the defendant was receiving any mental health treatment or support at the time of the 2019 or 2020 offending.

42. [74]

    The defendant submitted that first, the statutory preconditions in the Act have not been met. Second, the Court would not be satisfied to the necessary degree that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Act. It was also submitted that third, the Court would not be satisfied that the matters alleged in the documentation would, if proved, justify making the ESO.

43. [75]

    It is significant that the offending for which the defendant was sentenced under the Code was relatively low level in that it was a simple offence of using a carriage service to menace/harass or offend rather then the type of offending in Chapter 5C of the Code urging violence against the Constitution or against groups or advocating terrorism.

44. [76]

    Whilst the defendant’s possession of an unregistered gel blaster was sufficient to qualify him as an eligible offender, the nature of the offences weighs strongly against the order being made.

45. [77]

    There were submissions made about whether the service requirements under the Act had been met and whether there had been disclosure as required by the Act, but these matters were in my view faintly pressed and the application was defended on the basis of the material being properly before the Court.

46. [78]

    What was pressed however, appropriately in my view, was the problematic bases of the psychologist’s Risk Assessment Report relied upon by the plaintiff purporting to calculate the likelihood of the defendant committing a serious terrorism offence. This report of Ms Prince was heavily qualified, referring to itself as an “interim assessment” only, and concluding that any risk presented by the defendant required a narrative shift occurring before any such activity would proceed, and it would be activity in which his role would likely be limited to promotion, recruitment and development of material. It was in this context that she assessed the defendant as presenting a “moderate to high risk” using the Violent Extremism Risk Assessment tool (VERA). There was nothing in the report however that assessed the likelihood of the contextual change or narrative shift actually ever occurring, and so her conclusions remain speculative.

47. [79]

    The defendant disputed that he should be correctly considered a “convicted New South Wales terrorism activity offender”, even under the extended definition set out in s 10(1A) of the Act.

48. [80]

    Section 11 of the Act sets out the matters the Court may consider in determining whether the defendant is in fact a convicted New South Wales terrorism activity offender.

49. [81]

    First, the sentencing Magistrate specifically declined to sentence the defendant on the basis that he had an allegiance to a particular group. Second, evidence adduced on sentence did not, properly read, lead to a conclusion that he was either making a “call to arms” to his associates to hang police, or engage in any act of violence. In fact, there was a number of statements that show an intention to act peacefully and that he expected others to act peacefully. Third, there is no relevant terrorism intelligence. The material in the affidavit of DSC Reason is not a report relating to terrorism or a terrorist organisation. It is full of speculation and opinion without real foundation as to what other, unidentified people, “might do”. Emphasis was also placed on the concluding paragraph of DSC Reason’s affidavit that it should be read as a “picture of a group that has effectively dissipated, with members being disillusioned and having moved on to different groups”.

50. [82]

    Fourth, there was nothing in the prior convictions relevant to terrorism, or of sufficient seriousness to give any concern about the defendant having potential to commit a serious terrorism offence in the future.

51. [83]

    Fifth, there was nothing in the Risk Assessment Report of Ms Prince which could comprise an assessment result of relevance to “terrorist behaviour”:

52. [84]

    At its highest, the conclusions in these paragraphs amount to speculation that the environment or the narrative could change to be interpreted by others as a “call to arms”. There is nothing relevant to activity in custody and nothing that indicates information that any of the defendant’s current or former associates are known to be included in terrorism activities.

53. [85]

    In respect of s 10(1)(c) of the Act, the defendant submitted that neither he nor the UKOA have advocated support for a terrorist act or violent extremism. Section 11 factors must be borne in mind, as must s 100.1(a) and its interaction with s 100.1(3) of the Code, that effectively excludes certain activities from the definition of “terrorist acts”.

54. [86]

    There is no evidence that the defendant intended to cause physical harm to any person or endanger lives by his actions. The calling for the curial overthrow of the government does not amount to a “terrorist act” or a calling for curial punishment. The Court should view any statement that a person or class of persons will be punished in a particular way, even by capital punishment when the law is changed, is quintessentially political advocacy no matter how offensive or uncomfortable those threatened by it might find it.

55. [87]

    The Court could find that what the defendant is advocating is not conduct in support of violent actions, but rather application of what he believes might be the result of due process of law and so it is in effect an extreme political view advocating political change, as opposed to an extremist view advocating illegal violence.

56. [88]

    The Court should take at face value the videos and statements within them that are careful not to invoke extra-curial violence, but telling listeners to be careful of what had he had seen to be the operation of law, once the matter was “before the Hague”. He also admonishes people who might attend that they must not be violent. In effect, what the defendant is advocating is for people to assert their rights, but if you are forced to, go peacefully and keep a diary of the interaction.

57. [89]

    In respect of s 10(1A) generally, the UKOA does not support “terrorist acts” or “violent extremism”. It must be borne in mind that UKOA is not a declared terrorist organisation. The Court should have real reservations about making a finding that the defendant’s conduct meets the statutory threshold.

58. [90]

    Whilst the bar at preliminary hearing is a low one, there is still a requirement that the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. Section 24(7) of the Act requires the Court to dismiss the application if the supporting documentation does not justify the making of an ESO. When the matters set out in s 25(3) are considered, particularly noting the nature of the type of activity the defendant has actually engaged in, all there is comprises a generalised risk of making offensive YouTube videos and/or speculation about what other people might do when they see such material.

59. [91]

    It is important to note that the defendant would be subject to the parameters of a CTO to manage his mental health issues which can be renewed as many times as necessary, as well the Commonwealth Recognisance Release Order in place until March 2022. These items have the role of greatly curtailing any risk that the defendant will commit an offence.

60. [92]

    The current information regarding the defendant is that he is no longer expressing adherence to UKOA philosophy. This should be seen as, at least, some evidence of decreased risk, regardless of the caution expressed by the treating specialists that he may be stating this to deflect scrutiny.

61. [93]

    In respect of the CTO, it was emphasised that this is a coercive mechanism that overrides the defendant’s personal autonomy in regard to treatment including, if necessary, enforced medication as well as potential changes to his liberty such as being required to attend particular places at particular times to be examined. It also allows for medication to be given without consent and for further oversight by the MHRT. If there is a lack of cooperation with the requirements of the CTO, police can become involved to detain the defendant and take him to hospital for enforced treatment.

62. [94]

    The Commonwealth Recognisance was said to also provide a level of supervision in the community. It involves a referral to complete the EQUIPS foundational program to address generalised offending behaviour, a referral to a psychologist for assessment and implementation of strategies to address, amongst other things, his mental health and ideologies associated with the UKOA, referral to the “Proactive Integrated Support Model” of Corrective Services New South Wales, as well as to the CSNSW Terrorism High Risk Offenders Unit for offence-specific intervention and to monitor his engagement with Community Corrections. These things would be more than sufficient to deal with any risk presented by the defendant.

63. [95]

    The criminal history comprises relatively minor summary offences. A neighbourhood dispute should not be described as “serious” in the context of an application for orders based on the potential for terrorism. The presiding Magistrate made positive comments regarding the hope that the defendant could return to his family and resume work. He took into account the defendant’s mental health issues, and tailored the sentence in a way that assisted the defendant to be provided with rehabilitation to be supervised by Community Corrections upon his release. Nothing was said by the Magistrate suggesting that he thought the defendant was a terrorist risk.

64. [96]

    The plaintiff’s submissions that the defendant’s beliefs or commitments support potential engaging in terrorism activities are speculative, and rely upon the speculative proposition that the defendant’s mental health will deteriorate. This ought not be the conclusion reached by the Court given the CTO.

65. [97]

    The risk the plaintiff argues is presented by the defendant is also premised on the need for a prior narrative shift to create perceived legitimacy for violence. There is simply no evidence as to when or how that narrative shift would occur, and so there really is no material upon which the Court could find the circumstances that would underpin the reality of any risk presented by the defendant would occur, let alone it being considered to be an unacceptable risk.

66. [98]

    The offensive material said to be material that advocates violence and amounts to a “call to arms” to followers of the UKOA, seems to be a somewhat cynical submission given that there has been no application by the State or Police for the defendant’s facebook or YouTube material to be taken down, despite there being various ways this can be done.

67. [99]

    In end result, what the plaintiff argues is not that the defendant intends to encourage or foster others to commit a terrorist act. There is no evidence that he holds, or has ever held such an intention. The highest the plaintiff’s case rises is that his videos might lead some people to commit terrorist acts. This has to remain an uncalculated, unevidenced, speculative risk which cannot, on any analysis, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.

68. [100]

    Even if the Court thought the test was satisfied, the Court should decline to make the order on discretionary grounds, given the role of the CTO and the Commonwealth Recognisance that will both run to control any risk presented by the defendant.

Section 25(3) mandatory factors to consider

1. [101]

   Division 2.4 of the Act sets out the requirements for determination of an application for an ESO. Section 25(1) provides that the Court can determine an application by making the order or dismissing the application.

2. [102]

   Critically, s 25(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Supreme Court.

3. [103]

   Section 25(3) sets out the matters to which the Court must have regard. At this preliminary hearing stage some of the parameters have not yet been the subject of evidence, for example there are no reports from persons appointed by the Court to conduct psychiatric and/or psychological examinations of the offender, and, most unfortunately, the Risk Assessment Report by Ms Prince prepared in late June 2021 did not include any interface at all with the defendant so revelation of his current stated thoughts and plans are limited to the 22 June 2021 review by Dr White set out in [48] of this judgment.

4. [104]

   To the extent that there is material available addressing these mandatory matters, I will refer to it at the level of detail I consider critical to my determination of this application. Given the very short turnaround time required of this judgment, not every aspect of all the 1500 plus pages of material tendered can be the subject of reference or comment.

5. [105]

   Whilst it is clear that the Court must take the evidence relied upon by the plaintiff at its highest, the report of Ms Prince is heavily qualified. On more than 10 occasions within the report, she makes reference to the fact that she has not had an opportunity to engage with the defendant, and so in a number of respects she declines to express a view about aspects of the potential risk that he presents.

6. [106]

   The reason why the defendant was not made available to her to interview remains unexplained, despite my invitation to Mr Emmett to explain why the defendant was not interviewed for the report.

7. [107]

   From the conclusions expressed in the “Executive Summary”, it is evident that Ms Prince based her assessment on a file review only, but rather than simply allowing that fact to speak for itself, Ms Prince goes on to say that her report “… should be considered an interim assessment only. Mr K should be engaged in interview to allow for a more informed assessment of his current vulnerability/risk profile and protective factors.” (emphasis added)

8. [108]

   Ms Prince concluded:

9. [109]

   In terms of the risk assessment process, Ms Prince noted that it is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend, and that the best that can be offered is an “estimate that is anchored to impirical literature, specifying features associated with risk, and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment”. She explained that the process of risk assessment of violent extremism or politically motivated violence is “comparatively new”, when compared to the risk assessment for general violent and sexual offending behaviours. She explained that the assessment of risk of violent extremism “cannot be anchored in statistical probabilities and subsequently a numerical score cannot be provided, rather the overall risk judgement is based on the clinician’s assessment of the available information at the time the assessment”.

10. [110]

    The VERA that Ms Prince performed was completed on file information only and again, Ms Prince noted in that context: “It is recognised that this should be considered an interim assessment only”, and again says “...should the opportunity to interview Mr K avail itself, it is strongly recommended he be invited to participate in interview and assessment”. She then goes on to state, based on the assessment of all the available information that “he is currently assessed as moderate to high risk regarding violent extremism, politically motivated violence or terrorism activity”. She makes this assessment without ever making any inquiry herself of the defendant as to whether any of the views in issue are currently held by him.

11. [111]

    Ms Prince stated (obviously based on the observations of others) that:

12. [112]

    Ms Prince concluded, without really explaining why, that there is a “likelihood” that the defendant has maintained his belief in the cause and in “Steven”, and so “it is likely that should he be released without any active monitoring case management, he will likely resume his role”. She added, again without explaining why, that “whilst residing with his wife and the recognisance order may provide some level of protection in the immediacy, this is likely to have limited long-term effects”.

13. [113]

    Somewhat contradictorily Ms Prince says this:

14. [114]

    I consider the first part of par 124 to be a reasonable reflection of the reality – that is that it remains unknown whether the defendant has or will cease contact with “the Kingdom” or not. The second part of the paragraph amounts to nothing more than speculation.

15. [115]

    With respect to the author, who was not given the opportunity to review and assess the defendant, the report contains much repetition of the comments of others, many assumptions and much speculation. Even at this preliminary phase, and taken at its highest, the report carries little persuasive weight in assisting the Court to resolve whether the defendant presents a relevant risk of committing a serious terrorism offence.

16. [116]

    The report of Mr Bagley adds little to the question of risk, other than setting out and advocating his views as to how the defendant can be managed in the community and why he sees the multiplicity of proposed conditions to be necessary. The HRTO Unit Management Report of Detective Sergeant James is in the same category.

17. [117]

    I accept the submissions of the defendant in respect of the potential role of the CTO in managing the risk of relevant offending. I consider the Recognisance to have a lesser role, given it will expire in March 2022 and it cannot be renewed, but it has some role potentially in reducing the likelihood he will relevantly offend.

18. [118]

    The defendant failed to comply with his previous CCO. His failure was tied to his beliefs that were entrenched it seems at the time. It is hard to predict whether the defendant would comply with the proposed demanding combination of conditions proposed for the ISO and potential future ESO. He may, but the real question is whether there is a proper statutory basis to impose them.

19. [119]

    There is in my view no relevant previous pattern of criminal offending.

20. [120]

    I agree with the submissions of the defendant that the defendant was not dealt with as a “terrorism” offender, nor were the charges levelled against him framed as terrorist offences under the Code.

21. [121]

    There is no doubt that in the past the defendant engaged in and professed beliefs of an ideological nature subscribed to by the UKOA. There is a lack of contemporaneous information as to whether he in fact still subscribes to these beliefs or not. It is at least possible that the ongoing treatment of his mental illness with medication has led to a re-calibration of his delusions and previously fixed belief system. Imprisonment has also had a role. At the time of the assessment by Dr White in June 2021, the defendant said he did not believe those things anymore. Dr White reported no cynicism about that assertion and there is no current evidence adduced by the plaintiff that demonstrates a contrary position.

Am I satisfied to a high degree of probability that the offender poses and unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order?

1. [122]

   It seems to me that the requirements of ss 20(a) and (b) of the Act have been met. I entertain some doubt that s 20(c) has been met, but I consider it just made out on a revisionary and reconstructed analysis, that because of some of the identified past activities of the defendant, with hindsight, he could be viewed as a “convicted New South Wales terrorism activity offender”.

2. [123]

   However, I do not accept that there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.

3. [124]

   The evidence taken at its highest is equivocal as to where the defendant currently stands regarding his beliefs or otherwise in the doctrines of the UKOA.

4. [125]

   There are multiple layers of speculation involved in the material upon which the plaintiff relies to reach the proposed conclusion as to the defendant’s relevant risk.

5. [126]

   I also doubt that the type of activities the defendant might engage in, even if he was still a “believer”, would, properly considered, amount to a “serious terrorism offence”.

6. [127]

   Fundamentally however, I dismiss the plaintiff’s Amended Summons because I am not satisfied to the requisite high degree of probability about the risk the defendant poses, and I cannot conclude that he presents an “unacceptable risk” of committing a serious terrorism offence if not kept under supervision under the proposed ISO or ESO.

Orders

1. [128]

   I make the following orders:

   1. (1)

      Amended Summons dismissed.

   2. (2)

      Plaintiff to pay the defendant’s costs.