State of New South Wales v BP (No. 2)

1. [1]

   By a summons filed 13 May 2019, the plaintiff, the State of New South Wales, sought an extended supervision order (ESO) under ss 20 and 25(1)(a) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act) against the defendant, orders for the examination of the defendant under s 24(5) of the THRO Act and the imposition of an interim supervision order (ISO) under s 27 for a period of 28 days, as well as an order restricting access to the file.

2. [2]

   The preliminary hearing, as required by s 24(4) of the THRO Act, took place on 3 June 2019. On 14 June 2019, I made the following orders:

3. [3]

   On 14 June 2019, I also published my reasons for making those orders: State of New South Wales v BP (Preliminary) [2019] NSWSC 699. For the reasons given in that judgment, I determined that an ISO for 28 days should be made but, as provided in order (4), I stood the matter over for further submissions on the appropriate conditions to be imposed under the ISO.

4. [4]

   Submissions concerning the appropriate conditions were made in writing, and orally on 20 June 2019. These reasons, therefore, deal with the conditions that are to be imposed in respect of the ISO in this matter. The orders will include the formal making of the ISO, the conditions of the ISO and the direction to the defendant to comply with the conditions.

5. [5]

   These reasons should be read in conjunction with the reasons in State of New South Wales v BP (Preliminary) [2019] NSWSC 699. Although I have generally not repeated in these reasons anything contained in those earlier reasons, I have relied upon that material and my earlier findings and conclusions in reaching my decision in relation to the ISO and the conditions.

Applicable statutory provisions

1. [6]

   The “appropriate” conditions that may be imposed in respect of an ISO are governed by s 29 of the THRO Act. In subs (1) of that section there is a non-exhaustive list of things that an offender may be required to do under an ISO. These relevantly include:

2. [7]

   In addition, s 29(1A) of the THRO Act provides that, unless the Court orders differently, an ISO must include the following conditions:

3. [8]

   Section 29(2) provides, for the purposes of those conditions, definitions of “carriage service”, “carriage service provider”, “internet service provider” and “electronic identity”.

4. [9]

   These provisions are to be applied having regard to the objects of the THRO Act which are identified in s 3 as follows:

5. [10]

   Accordingly, the power under s 29(1) to impose appropriate conditions on an ISO, and the power to impose conditions different from those in s 29(1A), are to be exercised in conformity with those legislative objects and having regard to the context of s 29 and the scope and purpose of the THRO Act

Applicable principles

1. [11]

   In the context of cognate provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act), it has been held that the provision corresponding to s 29 of the THRO Act does not require there to be a specific demonstrated connection between the condition and the past offending which is the basis for the order. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which is the basis for the order: Wilde v State of New South Wales [2015] NSWCA 28 (Wilde) at [53]; 249 A Crim R 65. There may be a sufficient connection if, for example:

   1. (1)

      the condition addresses a means of controlling possible risk factors related to the type of offending in question;

   2. (2)

      the condition is designed to avoid situations where the offender’s rehabilitation or reintegration into the community might be compromised; or

   3. (3)

      the condition does not directly relate to the offender's risk but promotes the efficacy of the order containing other conditions which do,

2. [12]

   This approach is equally appropriate when considering the imposition of conditions under the THRO Act. Similarly, I accept that conditions ought not be imposed under an ISO if they are unjustifiably onerous or simply punitive.

3. [13]

   In relation to the conditions specified in s 29(1A), the terms of that subsection make clear that the obligation to impose those conditions, which is inherent in the use of the word “must”, is subject to the Court’s power not to impose one or more of those conditions if it forms the view that such conditions are not appropriate in the circumstances of the particular case.

Proposed conditions

1. [14]

   The State has sought the imposition of the conditions in s 29(1A) as well as 34 other conditions.

2. [15]

   Without conceding that any ISO should be made or that any of those conditions sought should be imposed, Ms Graham, of counsel who appeared for the defendant, submitted that, if the Court was of the view that an ISO should be made and conditions should be imposed, the defendant specifically opposed the making of conditions 1(a) in the form proposed, 1(b), 1(e) in the form proposed, 1(i), 3, 4, 7, 8, 9, 16(a), (e) and (f), 22, 23, 24, 25, 30, 31 (in part), 32, 33 (in part), and 34 in the form proposed.

3. [16]

   Ms Richardson, of Senior Counsel who appeared with Mr Dametto, for the State indicated that the State had agreed a form of condition that was acceptable to the defendant in relation to condition 4, and agreed to the deletion of proposed conditions 8, 9, 16(a), (e) and (f). These agreements appear to me to be appropriate and I propose to incorporate them into the form of conditions to be imposed in the order that is to be made.

4. [17]

   In addition, I shall not deal in detail with the conditions which were not opposed. It is sufficient to note that:

   1. (1)

      in respect of the conditions in the pars (a)-(r) of proposed condition 1 (other than those in (a), (b), (e) and (i)), which are the conditions that generally must be imposed under s 29(1A), I am not satisfied that I should order differently; and

   2. (2)

      in respect of proposed conditions 2, 4 in the agreed amended form and 5 to 35 (other than 7, 22, 23, 24, 25, 30, 31, 32, 33, and 34), I consider these to be appropriate.

5. [18]

   I turn now to deal with each of the opposed conditions in more detail.

6. [19]

   Proposed condition 1(a): This condition is a general condition that requires the defendant, as the person the subject of the ISO, to submit to the supervision and guidance of an enforcement officer (EO) and to obey all reasonable directions of the EO (including in respect of providing a schedule of movements). This is a condition that must be imposed unless the Court decides to order differently.

7. [20]

   The defendant submitted that this condition was too vague and general. He proposed a different form of condition which was more limited in form requiring only compliance with a direction given by an EO “which is reasonably necessary for the enforcement of any of the conditions of the [ISO]” and permitting directions to be given electronically by SMS or other messaging service.

8. [21]

   I do not accept that the more limited form proposed by the defendant is either necessary or appropriate. By limiting the directions with which the defendant must comply to those reasonably necessary for the enforcement of any condition of the ISO, the proposed form could be seen as not requiring the defendant to comply with directions which, although permitted to be given under other conditions, were not reasonably necessary for the enforcement of any of those conditions. It creates uncertainty as to the directions with which the defendant must comply. It also adds a layer of complexity which may undermine the effectiveness of the conditions as a whole and does not promote compliance. I propose to adopt the statutory wording of this condition.

9. [22]

   Proposed condition 1(b): This condition concerns electronic monitoring and is also a condition that is required to be imposed, unless the Court orders differently.

10. [23]

    The defendant submitted that the evidence did not support a conclusion that electronic monitoring would have prevented or been likely to prevent any of the offending. In addition, it was said the high level of scrutiny and constraint on liberty involved in electronic monitoring would be likely to have a counter-productive effect, particularly in the light of the defendant’s past negative interactions with agencies of the State.

11. [24]

    I do not accept these submissions. In the past the defendant has approached police stations and apparently been looking for particular officers in respect of whom he has made threats of extreme violence. He has refused to leave when requested. Electronic monitoring, especially together with the requirement to provide a schedule of movements, is directly relevant to ensuring that police and other officers are not approached, tracked, or threatened in the execution of their duties or when arriving at or departing from the station or other facility at which they are based. In addition electronic monitoring allows appropriately close surveillance of the defendant’s movements to promote and encourage compliance with other conditions. If the defendant demonstrated compliance with electronic monitoring under an ISO, this may provide a basis for a less strict regime under any subsequent ESO that may be made.

12. [25]

    As to the submission that electronic monitoring could have a counter-productive effect and thus it should not be imposed, such an argument relies on the defendant’s negative reactions by way of threats of violence, and potentially actual violence, to Police and other officers as a reason why he should not be closely monitored. These negative reactions are, however, a significant part of the reason why electronic monitoring is required. When not monitored in the past, as well as threatening and attacking other groups and individuals, he has approached Merrylands Police station and made very serious threats against Police officers on two occasions. In the absence of clear evidence that the defendant is no longer likely to have negative reactions to Police officers and other authority figures, electronic monitoring appears to me to be appropriate to mitigate the risk posed by the defendant in all the circumstances. I propose to include this statutory condition.

13. [26]

    Proposed condition 1(e): This condition requires the defendant to submit to searches of his person, residence, vehicle, computer, electronic devices and other storage facilities and is required to be imposed unless the Court orders differently.

14. [27]

    The defendant opposed this condition on the basis that it could become a source of negative interaction between the defendant and his EO. A more complex alternative was proposed by the defendant. Given the short time during which the ISO will operate and the need for clarity and the avoidance of complexity so as to promote compliance, I am not persuaded that I should reject the form of condition in s 29(1A) and adopt the form proposed by the defendant. I also do not accept that the defendant’s potential negative reactions are a sufficient justification for adopting the defendant’s proposal, for reasons substantially similar to those given in relation to electronic monitoring.

15. [28]

    Proposed condition 1(i): This condition prohibits the defendant from possessing or using firearms and other weapons, explosive substances intended, by the defendant, to be used in an explosive device or a fuse or detonator intended by the defendant to be used for an explosive device. Once again, this is a condition that must be imposed unless the Court orders differently.

16. [29]

    Ms Graham submitted that there was no evidence to support that there was any risk of the defendant had the intention or capacity to obtain a firearm, explosives or bombs. It was noted that the defendant is already subject to a firearms prohibition order. Accordingly it was said that this condition did not target any perceived risk and should not be imposed.

17. [30]

    Contrary to that submission, the evidence did disclose, and I found, in the earlier reasons, that the defendant had made threats of use of firearms, including a 9 mm pistol, machetes and blades, among other threats of extreme violence. In all the circumstances, it appears to me that the condition is appropriate and suitably directed towards the risk posed by the defendant. To the extent that the defendant is already subject to a firearms prohibition order, the condition does not impose an additional, inappropriately onerous burden in that regard.

18. [31]

    Proposed condition 3: This condition effectively imposed a curfew on the defendant by requiring him to be at his approved address between 9pm and 6am unless other arrangements were approved by his EO.

19. [32]

    The defendant submitted that this condition did not address any identified risk, was unduly restrictive and should not be imposed. This condition, in its proposed form, is flexible in that other arrangements are permitted with the approval of the EO and, accordingly, it is not in my view unnecessarily restrictive. The condition is also an appropriate means of controlling possible risk factors related to the type of offending in question, such as alcohol consumption or association with persons with extremist views or persons to whom he has referred as his “brothers”, whom I do not understand to be his siblings. It also appears to be designed to avoid situations where the offender’s rehabilitation or reintegration into the community might be compromised. I propose to include this condition.

20. [33]

    Proposed condition 7: This condition involves the defendant providing information concerning his financial affairs, including income and expenditure, if directed by his EO.

21. [34]

    The defendant submitted that as he has never been convicted of a terrorism offence nor was there evidence that he had links to terrorist organisations or sought to finance those organisations. Thus, it was said that the condition was inappropriate. This condition only requires the information to be provided if directed by the EO. It enables more effective control of risk factors such as alcohol consumption, firearm acquisition, and other risk factors that may be disclosed by way of unusual financial transactions. Knowing that his financial affairs may have to be disclosed, if required, may also assist in helping the defendant to develop a pro-social lifestyle within the community. For these reasons, this condition should also be included.

22. [35]

    Proposed conditions 22, 23, 24 and 25: These conditions relate to the defendant allowing his EO to inspect his Internet and other electronic accounts, limiting these accounts to those in his given or adopted names and similar matters concerning mobile telephones, electronic devices and Internet services and use.

23. [36]

    The defendant submitted that these conditions were not justified by the evidence in this case and that the proposed conditions were unduly intrusive and not justified by the perceived risk.

24. [37]

    In my earlier reasons for judgment, I identified the Facebook page and other comments which gave rise to potential concern that the defendant did pose a risk of committing a serious terrorism offence (see for example the earlier judgment at [17], [91] and [111]). These matters indicate that conditions 22 to 25 are sufficiently directed to the nature of the risk in question. The level of intrusion involved in these conditions is not inappropriate given both the need to monitor the risk posed by the defendant and how the Internet and social media and similar accounts can be used to influence persons who may be vulnerable. For these reasons, I propose to include conditions 22 to 25.

25. [38]

    Proposed conditions 30, 31, 32 and 33: These conditions are directed to ensuring that the defendant complies with any community treatment order (CTO) to which he might be subject under the Mental Health Act 2007 (NSW) and to ensure that he receives the medication and therapy he requires for his mental illness.

26. [39]

    The defendant argued that the obligation to comply with a CTO under the Mental Health Act was sufficient and that these proposed conditions would unnecessarily and inappropriately criminalise any failure by the defendant to comply with a CTO or to take his medication or receive therapy. It was said that such criminalisation could be counter-productive and lead to the defendant’s mental health being adversely affected rather than ameliorated.

27. [40]

    I do not accept the defendant’s submissions. One of the reasons why I considered an ISO to be appropriate was that it would assist to ensure that the defendant received the mental health care and treatment for his schizoaffective disorder which he required. If he received this treatment and care, the evidence was that this was likely to assist him to develop insight into both his mental illness and his offending, which would be beneficial not only for the defendant but also for the community. It would reduce the risk of his committing a serious terrorism offence.

28. [41]

    The enforcement mechanisms available if a person fails to comply with a CTO under the Mental Health Act are not entirely straightforward or immediate and may depend on the level of funding available for mental health facilities and teams. Furthermore, the Mental Health Act enforcement mechanisms are also focused upon the welfare of the person with the mental illness and not the protection of the community. In my view, in a case such as the present, while it is important to ensure the welfare of the person with a mental illness, the protection of the community cannot be ignored. Conditions 30 to 33 are appropriate, well directed to reducing the risk posed by the defendant and justified by the need to ensure that the safety of the community is not unnecessarily jeopardised by the defendant failing to comply with a CTO or receive the necessary medication or treatment. These conditions provide an additional incentive for the defendant to comply with a CTO, receive treatment for his mental illness and take appropriate medication. I propose to include all of conditions 30 to 33.

29. [42]

    Proposed condition 34: This condition is relatively short and simple and requires the defendant to agree to his treatment and service providers and health care practitioners sharing information with each other and with his EO.

30. [43]

    The defendant proposed that it be replaced by a somewhat complex set of conditions where the agreement to the sharing of information would depend on the defendant’s “treating medical practitioners, counsellors or other mental health specialists” considering it appropriate “for the defendant’s rehabilitation and/or risk management in relation to a serious terrorism offence”. This was said to be necessary so that the defendant’s relationship with his healthcare practitioners was not undermined, thereby potentially compromising his rehabilitation.

31. [44]

    This submission should be rejected. Condition 34 as proposed by the State can be complied with without the defendant’s treating health care professionals being required to form judgements as to what might or might not be a “serious terrorism offence”. It is not likely to jeopardise, but rather will assist to ensure the effectiveness of, the defendant’s treatment or rehabilitation. It is important that the conditions imposed as part of an ISO or ESO should be simple and clear. Proposed condition 34 is much simpler and easier to understand than the set of conditions proposed by the defendant. For these reasons, I intend to include proposed condition 34 in the conditions to be imposed.

Conclusion and orders

1. [45]

   Having regard to these reasons and the findings and reasons set out in my earlier judgment in this matter, I am satisfied that it is appropriate to make an ISO for 28 days and to direct the defendant to comply with the conditions, as referred to above.

2. [46]

   It can be noted that, although the ISO is proposed to be ordered to be “for a period of 28 days from the date of the order”:

   1. (1)

      under s 28(1)(b) of the THRO Act, if the ISO is suspended for any period, the ISO will not expire until the end of the 28 days plus each period during which the order is suspended; and

   2. (2)

      under s 28(6) of the THRO Act, the ISO and the defendant’s obligations under the ISO are suspended during any period the defendant is in lawful custody, whether under the THRO Act or any other Act or law.

3. [47]

   As a result, the ISO and the defendant’s obligations under the ISO will be suspended at least until the expiration of the defendant’s current term of imprisonment on 7 July 2019.

4. [48]

   In these circumstances and for these reasons, the Court orders that:

   1. (1)

      Pursuant to ss 27 and 28(1) of the Terrorism (High Risk Offenders) Act 2017, the defendant is subject to an interim supervision order (ISO) for a period of 28 days from the date of this order.

   2. (2)

      Pursuant to s 29 of the Terrorism (High Risk Offenders) Act 2017, the defendant is directed, for the period of the ISO, to comply with the conditions set out in the schedule to these orders.

   3. (3)

      The parties have liberty to approach the High Risk Offender List Judge for directions and a hearing date for the final hearing of this matter.