State of New South Wales v Dickson (Preliminary)

1. [1]

   HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 30 September 2019 against the defendant, George Dickson (“the defendant”), seeking interim and final orders pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”).

2. [2]

   The orders sought by way of interim relief are to the effect that the defendant be subject to an interim supervision order (“ISO”) for 28 days commencing on 24 November 2019, to be renewed every 28 days for a maximum period of three months, and that the defendant comply with the conditions of the ISO set out in a schedule to the summons for the duration of the order. The summons also seeks an order appointing a psychiatrist and a psychologist to examine the defendant and furnish reports to this Court, and an order directing the defendant to attend those examinations.

3. [3]

   By way of final relief, the summons seeks an extended supervision order (“ESO”) for a period of two years from the date of order, or when the defendant’s current custody or supervision expires, whichever is the later, and an order that the defendant be obliged to comply with the same scheduled conditions.

4. [4]

   Finally, the summons seeks an order that access not be granted to the Court’s file to a non-party for any document without leave of a Judge of the Court and with prior notice to the parties.

5. [5]

   The defendant opposes the interim and final orders sought and, should an ISO be made, some of the proposed conditions to be attached to that order.

6. [6]

   This is a preliminary hearing, heard by me on 31 October 2019, for the purpose of considering the interim orders sought.

The application

1. [7]

   On 28 September 2018, the defendant was sentenced in the Local Court at Lismore to 2 years imprisonment with a non-parole period (“NPP”) of 18 months, for four offences pursuant to the Crimes Act 1900 (NSW). He successfully appealed the sentences to the District Court, and on 31 January 2019, received an aggregate sentence of 15 months with a NPP of 9 months. The offences and indicative sentences of imprisonment were as follows: two counts of intentionally damaging property (5 months each); one count of resist police officer in execution of duty (6 months); and one count of assault police officer in execution of duty (7 months) (“the index offences”). The sentence was backdated to commence on 8 May 2018, meaning that the NPP expired on 7 February 2019, being a week after the revised sentence was handed down.

2. [8]

   On 10 May 2019, parole was revoked by the State Parole Authority (the “SPA”) for the defendant’s failure to comply with conditions of his parole, and a warrant was issued for his arrest. The defendant was advised of the revocation and asked, by email, to attend St Leonards Community Corrections office on 28 May 2019. He declined, and was eventually arrested on or about 22 August 2019 in South Australia and extradited back to New South Wales, where he remains in custody. He is presently serving the balance of parole. His sentence will expire on 24 November 2019.

3. [9]

   On 22 July 2019, the solicitor in this matter in the Crown Solicitor’s Office provided a letter to police to be passed to the defendant when apprehended, advising him that an application pursuant to the Act was being considered. The letter was given to the defendant on 27 August 2019. On 26 September 2019, a letter was sent to the defendant in prison, advising him that the Attorney General had given instructions to commence an application under the Act.

The defendant’s background

1. [10]

   The defendant is an Aboriginal man, aged 43 years. Part of his background may be gleaned from material tendered with the application. I relate an outline of that material for the purposes of this judgment, but in so doing, I note that it is not proved or conceded for the purposes of the interim hearing.

2. [11]

   The defendant has family in Queensland and South Australia. I am advised by his counsel that his mother lives in South Australia, which the defendant regards as his home state.

3. [12]

   The defendant has reported completing Year 10 at High School and has a limited work history, stating a preference for charity work and political activism. He has occasionally chosen to live a homeless lifestyle, for financial reasons.

4. [13]

   The defendant has no criminal history for violent offending other than the index offences, and no significant criminal history; the index offences were the first for which he received a sentence of imprisonment. The only other matter on the defendant’s New South Wales record is an entry in 2018 of using offensive language near a school, for which he was fined. It is likely that this matter relates to the same series of incidents that gave rise to the index offences.

5. [14]

   The defendant has a minor criminal history in Queensland, dating back to the 1990s when he was dealt with by courts in Toowoomba. In 1994, when the defendant was aged 17, he was dealt with for three counts of break, enter and steal. He was fined and given a community service order, with no conviction recorded. The following year, when aged 18, the defendant appeared in court on three charges: break and enter a dwelling house with intent; stealing; and possessing a weapon without a licence pursuant to Sch 3 of the Weapons Act 1990 (Qld). No conviction was recorded and he was subjected to probation for 18 months as well as a community service order. In 1997, when the defendant was aged 20, he was fined for possessing dangerous drug and utensils, with no conviction recorded. In 1998, when aged 21, the defendant was convicted and fined for possessing drug utensils. Later that same year, when aged 22, the defendant received a 12 month suspended prison sentence and 3 year probation for charges of producing a dangerous drug, possessing a dangerous drug and possessing drug utensils. Approximately seven weeks later, the defendant was fined for a breach of his probation order, which I understand was for driving under the influence of alcohol.

6. [15]

   In relation to the weapons offence, I note that the Weapons Act, Sch 3, as of the date of that offence, read as follows:

7. [16]

   The term “firearm” is defined in s 3 as follows:

8. [17]

   Accordingly, it is not entirely clear whether the offence involved a gun.

9. [18]

   There is a 17 year gap before the defendant next offended, which was in South Australia in 2015. On 4 November 2015, he came before the Adelaide Magistrates Court for three matters: not paying a passenger fare; offensive conduct on a vehicle; and interfering with, disturbing or annoying another person on a vehicle. It appears that the three charges arose from the one incident, which was on 6 May 2015. The record indicates that the matters were “adjourned”. On 3 November 2016, the defendant was convicted and fined $150 for possessing cannabis and equipment for using or preparing cannabis, the offences having been committed on 9 September 2015. At the hearing, the defendant represented himself and submitted that he was entitled to use cannabis.

10. [19]

    The defendant has two disciplinary matters on his New South Wales prison record, being disobeying a direction on 8 May 2018, for which he was reprimanded and cautioned, and failing to comply with a routine on 11 December 2018, for which he lost 14 days of buy-ups.

The defendant’s history of threatening violence

1. [20]

   The defendant has no known history of threatening violence, of a terrorist character or otherwise, before 2016.

2. [21]

   Around 10 August 2016, a letter addressed to the “Provost Marshall” from the defendant was received by the Australian Defence Forces. It referred to earlier communications and the absence of a response to them. The defendant sought protection from the “Commonwealth armed forces”, who were targeting private civilians as part of the Commonwealth’s “war on drugs”.

3. [22]

   Around 15 December 2016, a letter from the defendant to the Fines Enforcement and Recovery Unit of the South Australian Attorney General’s Department was received, in relation to the fines that had been imposed by the Adelaide Magistrates Court. The letter referred to South Australian Police (“SAPOL”) and stated in part:

4. [23]

   On 16 August 2017, the defendant sent an email to the New South Wales Minister for Police and the Minister for Emergency Services, the Honourable Troy Grant MP, at his parliamentary electorate office in Dubbo. The defendant stated, in part:

5. [24]

   The defendant sent a further email to the Minister on 4 September 2017, in which he stated:

6. [25]

   A third email to the Minister, dated 29 November 2017, was in a similar vein.

7. [26]

   On 11 December 2017, the defendant sent an email to South Australian police, stating:

8. [27]

   Further emails with similar messages were sent to SAPOL on 20 December 2017.

9. [28]

   In January and February 2018, posters appeared on council poles which included the following statements:

10. [29]

    In January 2018, an adult male resembling the defendant was captured on CCTV at Christies Beach Police Station in South Australia walking near a parked marked police vehicle which had one of the messages placed on its windscreen. It included the same text with an additional sentence:

11. [30]

    On 6 February 2018, a manager of the South Australian Department of Health received an email from the defendant concerning a smoke-free area at the Noarlunga Centre playground. It stated that the situation was:

12. [31]

    In March 2018, the defendant sent emails to South Australian authorities expressing support for Domenic Perre, who was arrested in February 2018 and charged with murder and attempted murder arising from the bombing of the Adelaide office of the National Crime Authority in 1994. An email included this passage:

13. [32]

    Police note there is no suggestion that Mr Perre has any knowledge of, or association with, the defendant.

14. [33]

    The flow of emails to various South Australian authorities on different issues continued during March and April 2018, some in the vein of contending that no responsibility would be accepted for the death or injury of police while they engage in “their criminal drug war”.

The index offences

1. [34]

   On 30 April 2018, the defendant sent an email to the generic email address of Lismore Court House. It commenced:

2. [35]

   Thereafter, the email contained similar material to the defendant’s other messages to authorities, referring to an absence of responsibility for any death or injury occasioned to “police armed forces or member of parliament”. The email had an attachment in the form of a flyer, in the following terms:

3. [36]

   By May 2018, the defendant had relocated from South Australia to Nimbin in New South Wales, where, in that month, he attended the “Mardi Grass” festival, which is an annual festival promoting the legalisation and multi-purpose use of cannabis.

4. [37]

   The index offences were committed on three separate occasions over a four day period. On Friday 4 May 2018, police patrolling the festival alleged that the defendant yelled out “Fuck the Police”. They attempted to speak with him and he threw a piece of paper at them saying, “Read that”. He was issued with infringement notices for offensive language and “deposit litter”. It would seem likely that this is the origin of the only other matter on his New South Wales criminal record.

5. [38]

   On or about Monday 7 May 2018, the defendant hand-delivered a letter to either Lismore Court House or Nimbin Police Station, which was in identical terms to the attachment to the email quoted at [35] above.

6. [39]

   In the early afternoon of the same day, police attended the same festival at Nimbin and, following a complaint from members of the public that is not the subject of a charge, approached the defendant. Police formed the view that he was under the influence of a drug and located a small quantity of cannabis (4g) “at the scene”. The defendant became aggressive towards police. Police formed a view that his behaviour would be offensive and frightening to families and children at the location and issued a “move on direction”, with which he did not comply. He was arrested and resisted when police attempted to place him in a police vehicle. He was questioned, arrested and charged with possess prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1987 (NSW), refusing to comply with a direction under Pt 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) and resist officer in execution of duty pursuant to s 58 of the Crimes Act. He was released on bail at around 10pm that evening, a condition of bail being that he not enter Nimbin other than to collect his belongings and only in the company of police. Police declined his request to drive him to Nimbin, both then and when he twice rang Triple-0 in the early hours, renewing his request.

7. [40]

   The following morning at around 5.15am, police discovered that two marked police vehicles parked outside the police station had smashed windows. A rear window of one and the rear windscreen of another were shattered. The front windscreen of the first vehicle was also damaged. Police reviewed CCTV footage and saw that at 1:24am earlier that night, the defendant had caused the damage by repeatedly smashing the windows with a bush rock. He was arrested and when informed that he was being charged with two counts of intentionally damaging property, responded: “Well you started the war”. He was taken to Lismore police station, where he refused to exit the police vehicle. He was forcibly removed and then refused to walk into the charge room. When dragged into the room, he kicked out at police and was handcuffed. He kicked a police officer in the stomach and was also charged with resist arrest and assault police officer, and was refused bail.

A post index offence threat

1. [41]

   On 8 May 2018, Magistrate Heilpern at Lismore Local Court requested a psychiatric report on the defendant. Dr Gordon Elliott, forensic psychiatrist, attempted unsuccessfully to assess the defendant on 20 June 2018. Dr Elliott reported that the defendant declined to be assessed and “remained civil throughout this brief interaction”. Dr Elliott stated that the interaction was too brief for him to form any relevant opinions, other than that “his appearance was eccentric” and that he “appeared slightly odd”.

2. [42]

   On 4 July 2018, whilst on remand at the John Morony Correctional Centre, the defendant was required to attend and participate in a group “communication” session involving 20 inmates led by a programs officer. When it was his turn to introduce himself to the group and discuss his communication skills, he said:

3. [43]

   The program officer advised her superior and referred the defendant to a mental health nurse for a mental health and risk assessment, as well as to a drug and alcohol nurse.

Mental health assessment on remand

1. [44]

   The defendant was interviewed by a “Provisional Psychologist” on 6, 9 and 25 July 2018. He was advised that his consent was required for an assessment, which he declined to give. The notes of those three meetings are to the effect that there was nothing untoward about his behaviour.

2. [45]

   By 21 August 2018, on which date the defendant was seen by a psychologist, he had been transferred to the Mental Health Scanning Unit at the Metropolitan Remand and Reception Centre (“the MRRC”). The psychology service ceased its interaction with him, in view of his refusal to co-operate.

3. [46]

   On 30 August 2018, the defendant was examined by two psychiatrists, Drs Nguy and Reading. Dr Reading concluded that the defendant’s dishevelled appearance and reported behaviour was consistent with him having a mental illness, which required treatment for the protection of others. He concluded that the defendant was “a mentally ill person” within the definition of s 4 of the Mental Health Act 2007 (NSW). The two psychiatrists requested that an order be made in respect of the defendant pursuant to s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The following day, the Mental Health Review Tribunal was notified that the defendant’s transfer to a mental health facility was required; in other words, an involuntary transfer to a psychiatric ward. Regrettably, it was more than two months before a bed became available. The defendant was transferred to Long Bay Hospital on 2 November 2018. On arrival, he was noted to be calm, polite and exhibiting no thought disorder, although his appearance was noted as “dishevelled and unkempt”. Nevertheless he was administered an antipsychotic, Clopixol (100mg) and Benzotropine (2mg), the latter presumably to counter side effects of the antipsychotic medication.

4. [47]

   The defendant received no further medication during his stay at Long Bay Hospital. He was discharged back to the MRRC on 19 November 2018. The Psychiatry Registrar wrote:

5. [48]

   Accordingly, the provisional diagnosis of schizophrenia was not confirmed.

The Court hearings and the defendant’s breach of parole

1. [49]

   The defendant appeared unrepresented at his hearing on 28 September 2018, pleaded guilty to the two damage property charges and defended the other two charges. His closing address was not included in the material tendered before me. However, it appears from the defendant’s cross-examination of police witnesses and the judgment of the presiding magistrate that the defendant submitted that he was entitled to use cannabis on religious grounds; that his arrest was unlawful; the resist police was “very minor” (with which the magistrate agreed); and that he was not subject to the laws of Australia.

2. [50]

   It is not apparent from the material whether the defendant appeared unrepresented in the District Court at Lismore on 31 January 2019 on his appeal against sentence.

3. [51]

   Following his release on parole on 7 February 2019, the defendant declined to consent to Corrective Services NSW (“CSNSW”) contacting “significant others” in his life to verify information about him, for the purpose of preparing an assessment and developing a management plan. He explained that he did not want his family to know about the criminal proceedings. He rejected the view that he needed mental health or drug (cannabis) use intervention and refused to engage in intervention strategies as directed, which led to a breach of parole report being submitted to the SPA. On 17 April 2019, the defendant was warned and an updated report was requested from CSNSW, thus affording him a further opportunity to engage and comply with his parole, which he did not accept. On 6 May 2019, he telephoned his CSNSW officer and advised that he had moved to the Lismore area, but would not disclose his exact whereabouts. On 10 May, his parole was revoked and a warrant was issued for his arrest.

4. [52]

   A report by South Australian police dated 13 July 2019 records that they approached the premises of an unnamed woman in order to ascertain the defendant’s whereabouts. The defendant came to the front door and was informed that New South Wales police were not seeking extradition at that time. The following month, the defendant was extradited back to this state and returned to custody, where he will remain until his date of release on 24 November 2019.

The relevant legislative provisions

1. [53]

   The test for the making of an interim supervision order is set out at s 27 of the Act, which provides:

2. [54]

   The defendant is an “eligible offender” as defined in s 7, being an offender over 18 years of age serving a sentence of imprisonment for a New South Wales indictable offence. The definition of that term in s 4 of the Act is as follows:

3. [55]

   The expiration of the defendant’s sentence on 24 November 2019 satisfies s 27(a).

4. [56]

   Section 27(b) requires the Court to determine whether the supporting documentation would, if proved, justify the making of an ESO. If it does, the power to make an ISO nevertheless remains discretionary.

5. [57]

   Section 20 of the Act sets out the requirements of which the Court must be satisfied if the Court is to exercise its discretion to impose an ESO as follows:

6. [58]

   Although the index offences for which the defendant was serving sentences were dealt with summarily in the Local Court and subsequently on appeal against sentence only to the District Court, they were New South Wales indictable offences pursuant to the definition of that term as noted above at [54].

7. [59]

   The charges of resist police officer and assault police officer in the execution of their duty pursuant to ss 58 and 60(1) respectively of the Crimes Act, and intentionally destroy property pursuant to s 195(1)(a) come within Table 2 of Sch 1 of the Criminal Procedure Act 1986 (NSW), as indictable matters that are to be dealt with summarily, unless the prosecutor elects otherwise. Accordingly, s 20(a)(i) is satisfied.

Procedural requirements: s 20(b)

1. [60]

   The procedural requirements of Pt 2 of the Act are outlined in s 23, and are satisfied. The application was made by way of summons filed on 30 September 2019, at which time the offender was in custody serving a sentence of imprisonment for a New South Wales indictable offence (s 23(1)(a)) and it was made within the last 12 months of the defendant’s custody (s 23(2)).

2. [61]

   Section 23(3)(a) provides that the application must be supported by documentation that addresses each of the matters referred to in s 25(3). The application was supported by the relevant reports, which are considered below.

A convicted NSW terrorism activity offender: s 20(c)

1. [62]

   The term “convicted NSW terrorism activity offender” is defined in s 10 of the Act to include a person serving a sentence of imprisonment for a New South Wales indictable offence who, pursuant to s 10(1)(c):

2. [63]

   Section 10(1A) provides:

3. [64]

   The plaintiff contends that the material before the Court establishes that the defendant has made statements advocating support for a terrorist act or violent extremism pursuant to s 10(1)(c)(i). I am satisfied that the threats of violence by the defendant and his characterisation of the criminal prohibition of the possession and use of cannabis and other drugs as a war which excuses the use of lethal violence, constitute statements advocating both support for terrorist acts and of violent extremism.

Whether the court is satisfied to a high degree of probability that the offender poses an unacceptable risk: s 20(d)

1. [65]

   Subsection 20(d) is qualified by s 21, as follows:

2. [66]

   The next step is to consider whether, applying the relevant tests in ss 20(d) and 27(b) and recalling s 21 of the Act, the supporting documentation to the application would, if proved, be capable of satisfying the Court to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

3. [67]

   The term “a serious terrorism offence” is defined in s 4 to mean an offence against Pt 5.3 of the Criminal Code (Cth), for which the maximum penalty is 7 or more years of imprisonment.

4. [68]

   In State of NSW v Naaman (No 2) [2018] NSWCA 328 at [35], the Court held that for the purpose of determining whether a threat of action is a “terrorist act”, one asks whether the threatened action falls within the definition of “terrorist act” in s 100.1 of the Code; in particular, it must satisfy both pars (b) and (c) of that definition, that the acts must be done, or the threats made, with the requisite intention, namely:

5. [69]

   In undertaking this exercise, as this is a preliminary hearing, the material on which I make my determination is untested and incomplete. I am required to assume that the supporting material is “proved”. If there is to be a final hearing, the Court at that stage will determine the reliability of the material, together with the further reports.

Section 25(3) matters

1. [70]

   In determining whether to make an ESO, the Court must have regard to the matters in s 25(3), in addition to any other matters it considers relevant. These matters are now considered.

The expert evidence as to the level of risk posed by the defendant

1. [71]

   It is convenient to consider these three matters together. A Risk Assessment Report dated 28 June 2019 has been prepared by Rachel Terry, who is a senior psychologist with the Terrorism High Risk Offenders Unit of CSNSW. She reviewed the defendant’s psychosocial history and his history of support of violent extremism or politically motivated violence. As to a possible interaction of the defendant’s political beliefs and possible mental health issues, Ms Terry noted the assessments of his mental health while in custody, that he does not have a diagnosis of mental illness and concluded that “[t]he extent to which his mental health impacts on his beliefs remains unknown”.

2. [72]

   Ms Terry noted that when the defendant was last in the community, in March 2019, the actuarial risk assessment tool known as the Level of Service Inventory-Revised (“LSI-R”) was applied and yielded an assessment of his level of risk of reoffending within two years as medium to high. She applied an instrument known as the Violent Extremist Risk Assessment, version 2 revised (“VERA-2R”). Her assessment was affected by a paucity of background information about the defendant, including the development of his socio-political ideology. However, she was able to conclude that:

3. [73]

   Ms Terry applied the Terrorist Radicalisation Assessment Protocol (“TRAP-18”), which she described as providing:

4. [74]

   Again, the application of the instrument was affected by the lack of background information, although Ms Terry assessed the defendant as having at least four proximal indicators at the time he committed the index offences.

5. [75]

   Overall, Ms Terry concluded:

6. [76]

   Ms Terry assessed the defendant as having a medium-high risk of general reoffending and as falling in the range of a moderate risk of engaging in extremist violence. The proximal indicators at the time of the index offences, as assessed by the TRAP-18, were a matter of concern.

7. [77]

   In a supplementary report dated 10 October 2019, Ms Terry considered further material that had been served on her by the plaintiff. It included, inter alia, additional intelligence reports from South Australian police, the remarks on sentence from the Lismore District Court on 31 January 2019, emails from the defendant regarding the ‘war on drugs’, the transcript of the hearing in the Magistrate’s Court on 30 November 2016, and selected transcripts of phone calls with his partner whilst he was in custody. In one such call, the defendant suggested that his motive in committing offences was to enable him to advance his cause in court. On the additional material, Ms Terry’s conclusions were essentially the same.

8. [78]

   The material also includes two Risk Intervention Reports prepared by Joyleen Nowrot, a Senior Community Corrections officer. Ms Nowrot’s first report, dated 26 July 2019, was prepared when the defendant’s whereabouts were unknown. In her review of the defendant’s CSNSW records, Ms Nowrot noted that the defendant had been in a mental health facility and that he had been declared a “mentally ill person”, but made no mention of his having been found to have “no symptoms of mental illness”: see [47] above. Rather, she said: “Mr Dickson demonstrated a lack of insight regarding his mental health”, because he could not recall why he received an injection in custody.

9. [79]

   Ms Nowrot proposed what could reasonably be described as a highly interventionist risk management plan to be implemented on the defendant’s eventual supervised return to the community. It included the defendant being “encouraged to address his substance use and mental health issues” by his enforcement officer, but made no reference to any professional documentation of what the mental health concerns were. Later in her report, she moved from “encouragement” to it being a condition of supervision that the defendant “submit to alcohol and drug testing as directed by his Enforcement Officer”. She concluded that the conditions she proposed for the defendant were important “given his history, his lack of engagement in psychology services while recently in custody, and his provisional diagnosis of schizophrenia”.

10. [80]

    In a supplementary report dated 24 October 2019, by which date the defendant was back in custody, Ms Nowrot stated that he had declined to be interviewed by CSNSW or Justice Health for the purposes of preparing a case management proposal or assessing his mental health. She noted that this “casts doubt on the likelihood of him complying with a future supervision order”.

11. [81]

    Ms Nowrot expressed the view that if the defendant is released pursuant to an order of supervision, a higher level of intervention in terms of reporting conditions and home visits was appropriate.

12. [82]

    As noted earlier, the defendant has a relatively minor criminal record which does not include offences of violence. His first and only sentence of imprisonment was for the index offences.

13. [83]

    Both Ms Terry and Ms Nowrot commented upon the defendant’s history of failed compliance with his parole conditions as suggesting there would be a need for close supervision if he is released subject to an order of supervision.

14. [84]

    I note the repeated oral and written statements by the defendant since 2016 in which he casts the current criminal laws prohibiting the use of cannabis as a state-waged “war” in which the laws of armed conflict apply, including the legitimising of the defendant and others supporting his cause inflicting casualties upon “agents” of the state such as police.

Conclusion

1. [85]

   The defendant is a mature aged Indigenous man who, following criminal convictions in his youth for some non-violent matters that did not attract prison sentences, led a crime-free life. Seventeen years later, in 2015, he came to the attention of police in South Australia for minor criminal infractions and, for reasons that thus far are not understood, chose to react with a campaign of remarkable vitriol in the cause of legalising prohibited drug use, threatening extreme violence against police and other authorities of the state. In May 2018, he transferred his campaign interstate to New South Wales, attracting police attention in Nimbin. His campaign escalated with him resisting arrest and damaging police property by smashing the windows of two marked police vehicles with a rock, for which he received sentences of imprisonment. He continued his campaign inside prison.

2. [86]

   The defendant presents an anomalous picture, in that his threats of extreme violence are not supported by any evidence of him having marshalled the physical means to perpetrate such attacks or otherwise demonstrated an intention to progress his campaign to a level beyond threats. The most serious of the index offences, the two offences of intentional damage to property, are equally capable of being interpreted as an expression of frustration at police releasing him from Lismore Police Station at 10pm and repeatedly refusing to drive him back to Nimbin, leaving him to wander the streets of Lismore through the May night with a blanket to keep warm. His comment when arrested, “You started the war”, might be understood in this context as much as in the context of his ongoing pamphleteering.

3. [87]

   I note that Ms Terry was conscious of these conflicting indicators in the defendant’s profile and history, and accept her conclusions as to the nature and degree of the threat posed by the defendant. I find that the material before me would, if proved, justify the making of an ESO. The material is capable of satisfying the Court that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

4. [88]

   There are three factors in combination that lead me to this conclusion. They are: the sustained nature of the defendant’s campaign and its focus on violence being excusable in what he views as an ongoing “war”; his refusal to cooperate in assessments by health care professionals and others; and his refusal to comply with conditions of parole. As observed by Ms Terry, it may be that if the defendant chooses to cooperate with health care professionals and others and provide more information about his motivation, emotional responses and history, the degree of threat may be reassessed at a significantly lower level.

5. [89]

   I note that a year ago, the defendant was assessed as not having a mental illness, following him being under observation in a mental health unit for over three months, two weeks of which were in a closed psychiatric ward. There are of course other mental conditions, such as a personality disorder, that may be relevant to an assessment of the degree of risk, if any, that the defendant poses to the community, which may be explored with the benefit of the orders sought for further assessments of the defendant.

The proposed conditions of the ISO

1. [90]

   The plaintiff proposes 56 conditions of supervision, which simply replicate all the possible conditions that are set out at s 29 of the Act. At the hearing of this matter, counsel for the plaintiff maintained that all of them are necessary.

2. [91]

   The defendant contested the need for some of the conditions. My consideration of the more contentious of those is as follows.

3. [92]

   The defendant submits that electronic monitoring is unwarranted in view of the defendant’s record, that it is unduly onerous and that the risk of non-compliance can be addressed through reporting conditions. The case for electronic monitoring rests on the history of the defendant absconding on parole. However, there is no evidence of him committing any further offences or furthering his campaign before he was re-arrested. At some point, he travelled to South Australia, which is where his mother resides. As noted earlier in this judgment, police in South Australia attended a particular address in July to locate him, and were successful. The material does not indicate if this was the defendant’s mother’s address. There is no suggestion that the defendant broke his association with that address before he was arrested, which was a month later for the purpose of extradition.

4. [93]

   I take into account that the defendant has previously demonstrated a strong disregard for compliance with terms of conditional liberty involving his whereabouts, and in view of the nature of the defendant’s past threats of violence, until such time as he is forthcoming about his motivation and state of mind generally to health care professionals, there is a need for the authorities to be aware of his whereabouts. Accordingly, I make that condition.

5. [94]

   The defendant resists a condition requiring him to reside at an approved address. At the hearing, evidence was given by Ms Nowrot to the effect that the defendant had not given CSNSW any information about where he plans to live when released, and therefore no proposed accommodation had been considered or approved. If the defendant remained uncooperative, she stated that there was funding for two night’s accommodation, after which he would be considered for crisis accommodation by Housing NSW. The defendant submits that he has previously lived on the streets and if he did so again because he had no approved accommodation, he ran the risk of being breached and penalised, if this condition is included.

6. [95]

   I am satisfied that a condition requiring the defendant to live at an approved address while he is subject to an ISO is appropriate. A degree of stability is essential in the period leading up to the final hearing of this matter, which incorporates the defendant attending to various tasks that are preparatory for the hearing.

7. [96]

   The defendant presents as a socially isolated figure, who would clearly benefit from living with supportive family members. Through his counsel, he has expressed a desire to be able to return to reside in South Australia with his mother, at least over the Christmas period. If it were possible for him to be monitored in South Australia, I would agree to that course, but it is not. Again, the nature and consistency of the defendant’s past threats necessitate that an understanding of their seriousness in the final hearing is the priority and, until that time, his whereabouts must be monitored.

8. [97]

   The defendant submits that as the only weapon he has previously used was a rock, this condition is unnecessary and unreasonable. I am of the opinion that the nature of the defendant’s past campaign warrants a need for the authorities to inspect his electronic and communication devices, but not otherwise, beyond the ordinary powers of search available to police.

9. [98]

   The defendant submits that if he takes cannabis whilst subject to an ISO, he should be subject only to the provisions of the Drug Misuse and Trafficking Act, rather than a breach of an ISO condition, as well. I conclude that there is a strong likelihood that the defendant will at least be tempted to use cannabis whilst on an ISO. The potential nexus between the defendant’s apparent long-term cannabis use and his ideation that has brought him into such conflict with the criminal justice system is not yet understood. Until it is, through the furnishing of further reports, it is appropriate for him to be obliged to refrain from using cannabis, as difficult a condition as that will be for him.

10. [99]

    This is resisted by the defendant, and, in my view, is unnecessary at this preliminary stage of proceedings. As well, although clearly it would be in the best interests of the defendant to follow the recommendations of his enforcement officer concerning psychological or psychiatric treatment, he is unlikely to comply and, as such, this condition would unnecessarily set him up to fail. Similarly, I have removed the condition empowering his enforcement officer to direct him to attend treatment programs, sessions and services.

11. [100]

    A curfew is unnecessary, given the nature of the threat posed by the defendant.

12. [101]

    This proposed condition is also irrelevant to the nature of the threat posed by the defendant. It is not suggested that he has been, is or is likely to be, a member of a terrorist group or otherwise socialise or associate with others who pose a threat of a similar nature or who would encourage him to commit a terrorist act.

13. [102]

    I will modify this condition to allow the defendant to approach an airport if the Commissioner of Corrective Services permits him to leave the state.

14. [103]

    I am of the view that this draft condition does not relate to the nature of the threat posed by the defendant.

15. [104]

    The defendant opposes this condition as being unnecessary for an ISO. However, I consider it has relevance in potentially making available reports of any past treating health care professionals to the psychiatrist and psychologist who will be preparing reports for the purpose of the final hearing.

16. [105]

    I will modify this draft condition to avoid, so far as is possible, an inadvertent breach.

17. [106]

    I have removed conditions that refer to alcohol; it has not been suggested that the defendant has an issue with alcohol abuse or associating with people affected by alcohol.

18. [107]

    As presently drafted, the conditions are a challenging document for anyone, let alone someone of the educational standard of the defendant, to understand. Custodial sentences of 12 months or more are commonplace for the breach of a condition to an ISO or ESO. It is incumbent on all involved to ensure that conditions attached to an ISO or ESO are expressed in as simple language as possible. I have grouped the conditions around sub-headings to aid the ability of the defendant to check what conditions apply to each area of behaviour or responsibility. I have redrafted some conditions, particularly those affecting electronic devices and communications, to improve their capacity for comprehension.

Orders

1. [108]

   Accordingly, I make the following orders: