State of New South Wales v Benshabir (Preliminary)

By way of Summons filed on 30 March 2026, the State of New South Wales seeks an extended supervision order (ESO) for a period of 12 months against Yaqoob Benshabir pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). Proposed conditions of the ESO are set out in a schedule to the Summons.

The matter came before me on an urgent basis as a preliminary hearing on 1 April 2026 when the plaintiff sought orders, inter alia, appointing two qualified psychiatrists or psychologists to conduct examinations of the defendant and to provide reports to the Court pursuant to s 24(5) of the Act and for an interim supervision order (ISO) pursuant to s 27 of the Act. The proposed conditions for the ISO were the same as those proposed for the ESO.

Ms Melis of counsel appeared for the plaintiff and Mr Agar, solicitor, appeared for the defendant.

On 1 April 2026, after hearing the matter, I gave short reasons and made orders as follows:-

What follows are my full reasons for making the orders on 1 April 2026.

The defendant is 20 years of age. At the date of the preliminary hearing he was serving a sentence of 10 months imprisonment with a non-parole period of 5 months, for an offence of affray contrary to s 93 of the Crimes Act 1900 (NSW) imposed upon him by Judge Halburd in the Local Court of New South Wales on 12 February 2026 (the index offence). His sentence was backdated to commence on 25 September 2025. The defendant’s non-parole period expired on 24 February 2026 and the balance of his term is to expire on 24 July 2026. On 24 February 2026, the defendant’s statutory parole was revoked. A review of his parole is listed for 14 April 2026.

The defendant lodged an appeal against the severity of his sentence which was listed for hearing at the Downing Centre on 2 April 2026. Against the possibility that the severity appeal might result in the defendant’s imminent release, the plaintiff sought urgent orders pursuant sections 24(5) and 27 of the Act, which are noted above.

The following evidence was relied on by the plaintiff:-

The defendant relied on no evidence.

The offence of affray, which was dealt with summarily in the Local Court, is an indictable offence. Therefore, Mr Benshabir is an “eligible offender” within the meaning of s 7 of the Act.

The defendant is a convicted NSW terrorism activity offender as he has, or he previously has had, a personal association or other affiliation with a person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism: s 10(1)(c)(ii) of the Act. Details of that association appear below.

There was no dispute that the application and conduct of the preliminary hearing complied with the formal requirements of the Act. The Summons was filed while the defendant was serving a sentence for a NSW indictable offence and the application was not made until the last 12 months of the offender’s current custody: ss 23(1) and (2). That also is not in dispute. The Summons was supported by the affidavits noted above which contained documents responsive to the matters set out in s 25(3) of the Act, including a risk assessment report of Katrina Czerkies dated 27 March 2026 which addresses the likelihood of the defendant committing a serious terrorism offence: s 23(3) of the Act, likewise not in dispute.

The Summons was served on the defendant within two business days of it being filed, and the documents and reports on which the plaintiff relied were disclosed to Mr Benshabir and his lawyers: ss 24(1) and (2) of the Act. The preliminary hearing was held within 28 days of the filing of the application. These matters are also not contentious.

Before experts are appointed or an ISO is made, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. Section 20 of the Act provides that the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. Section 3 of the Act states that its primary object is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. That same section acknowledges that another object of the Act is to encourage such offenders to undertake rehabilitation. In determining whether or not to make an ESO, s 25(2) of the Act requires the safety of the community to be the paramount consideration of the Supreme Court.

The determination at the preliminary stage is made “to a lower standard than applies to the making of an extended supervision order”: State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 (“Naaman”) at [17]. It is not for the Court to weigh up the documentation, resolve any conflicts, inconsistencies or uncertainties, to predict the ultimate result or to consider what evidence the defendant might call at the final hearing: State of New South Wales v Sturgeon [2019] NSWSC 559 at [7]. Rather, the Court looks at the allegations and documentation through the lens of the plaintiff’s case and takes them at their highest when deciding whether the test articulated in section 27(b) of the Act has been made good in all of the circumstances of the case: Naaman at [48].

The Supreme Court may make an ESO if, inter alia, it is satisfied to high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order: s 20(d) of the Act. Risk avoidance is the focus of the enquiry at the preliminary stage: State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589 at [35]. Determining what is an unacceptable risk includes a consideration of the type and nature of the offences that may be committed, even if the likelihood of an offence being committed is low: State of New South Wales v Kamm (Final) [2016] NSWSC 1; State of New South Wales v Daiman Nixon (also known as Damien Nixon) [2025] NSWSC 363.

Section 24(5) of the Act sets out the test applicable to the appointment of experts:-

The order under s 24(5) is mandatory if the matters alleged in the supporting documents, would, if proved, justify the making of an ESO.

Section 27, which is in different terms, provides:-

As will be seen, there is a dispute about the meaning of s 27(a) and in particular the meaning of the word “will”.

Section 25(3) of the Act provides:-

I will set out in detail some of the material relied upon by the plaintiff on this application. I take this evidence at its highest, as I am required to do on a preliminary application.

The index offence occurred at about 4.45 am on 10 February 2024 and involved the defendant (then aged 18) and 5 other young males. They approached two men who were seated on a bench kissing near Wynyard Walk tunnel. While standing in front of the victims, the defendant raised his right hand and arm towards a pedestrian footbridge. A member of his group yelled out “faggots” and “why are you gay?”. As the victims stood up and walked toward the pedestrian footbridge, the defendant and another member of his group ran after them. The defendant approached one of the victims from behind and punched him to the right side of his face. The other victim was pushed by the defendant’s co-offender. Both victims turned to face the defendant and his co-offender and walked backwards to get away. The defendant then used his right hand to punch one of the victims, which connected with the left side of his head. The defendant punched that same victim to the head two more times. The victims then ran away towards nearby escalators and were chased by the defendant and his co-offender. The incident was recorded on the mobile phone of one of the defendant’s co-offenders.

The defendant was arrested on 13 February 2025. He pleaded guilty on the day of his hearing and was sentenced in the Local Court on 12 February 2026. In his sentencing remarks, Judge Halburd observed that the defendant had targeted the victims because they were homosexual.

The defendant was to be released on parole on 24 February 2026. On that day, the State Parole Authority, at a private meeting, determined that the defendant was a terrorism related offender and revoked the defendant’s statutory parole order. The State Parole Authority also determined that the defendant posed a “serious identifiable risk to the safety of the community”. A review hearing in relation to the parole revocation is listed before the State Parole Authority on 14 April 2026. I note in the defendant’s favour, that in custody he has expressed regret at his involvement in the index offence, and reports that he does not judge another person on the basis of sexual orientation.

The defendant (at least until 1 April 2026) was facing a further charge of “possessing or controlling violent extremist material obtained or accessed using a carriage service” contrary to s 474.45C of the Criminal Code Act 1995 (Cth). I was told from the bar table on 1 April 2026 that the charge had just been withdrawn. However, the circumstances leading up to that offending remain relevant.

At 4.00 am on 25 September 2025, Australian Federal Police executed a search warrant at premises at Yagoona. The owner of those premises is Mostafa Sharrouf, the defendant’s uncle, aged about 43. Upon entry into those premises, officers located the defendant sleeping. The defendant stated that he was staying with his uncle and was about to leave for work. He was thus found to be in breach of his bail conditions, being residential and curfew conditions.

Police located an iPhone 12 Pro Max in a black case in the room where the defendant was sleeping. The defendant confirmed that the phone was his and he provided police with PIN number access to it. An examination of the device disclosed three videos in the offender’s Snapchat account:-

Police also located images stored in the device in a “recently deleted” folder. Depicted in the images is Khaled Sharrouf, a well-known Australian jihadist (and the defendant’s mother’s brother, to which see below) who in 2013 travelled to Syrian territory to fight in the Syrian civil war on the side of Islamic State. The images depict the Islamic State flag.

A Cellebrite extraction of the defendant’s phone uncovered distressing photographs, including photos of the defendant with his index finger pointing to the sky and photos of the Islamic State flag, violent videos concerning the ongoing conflict between Israel and Hamas (which I put to one side because they may be, without more, political in nature), jihadist videos, Islamic State videos with footage of an armed man shooting bodies on the ground, videos of the defendant performing an ISIS salute, an Islamic State video of a beheading, an Islamic State video of Islamic State soldiers holding up the heads of dead men, war footage of people dragging dead bodies and chats with a person or persons on several applications, including Telegram, expressing some allegiance to the Islamic State and exchanging what is described as distressing extremist material. The plaintiff submitted that the material located on the phone includes statements advocating support for terrorist acts or violent extremism based on the content of the images and therefore satisfies s 10(1)(c)(i) of the Act. I leave this submission to one side as, without a close inspection of the material, I cannot be so satisfied. However, at a final hearing a judge might well find otherwise and draw the requisite inference. In light of my conclusion immediately below, it matters not one way or the other.

The defendant has associations with several people who are said to advocate support for violent extremism, which I am satisfied brings him within the definition of a “convicted NSW terrorism activity offender” in s 10(1)(c)(ii) of the Act. I provide this non-exhaustive summary which I view as a whole rather than in fragments.

Mr Benshabir has close links to a young person who has been arrested and charged with committing a terrorist act, other terror related offences and an offence of causing grievous bodily harm with intent to murder. Images of this person have been identified on the defendant’s phone. He also has links to a young person who was a co-offender in the index offending who has been charged with terrorism related offences. Yet another co-offender in the index offending has been deemed unfit to hold a firearm because of his affiliation with extreme Islamic ideology and his association with young persons charged with terrorist related offending. Perhaps most significantly, the defendant’s uncles Khaled (now deceased) and Arken Sharrouf are apparently well-known Islamic extremists. Police material suggests that the defendant has a long history of affinity with the Islamic State – dating from his childhood – and there is an inference available from material on a police database that he has long held radicalised views, perhaps passed on through his family. All of these matters, including the chats on Telegram noted above, allow me to infer that the defendant has, or has previously had, personal affiliations with a person or persons that were or are advocating support for a terrorist act or violent extremism: s 10(1)(c)(ii) of the Act.

A Risk Assessment Report (RAR) was prepared by Katrina Czerkies, forensic psychologist, and is dated 27 March 2026. The defendant was not interviewed by Ms Czerkies for the purposes of the RAR and the report was completed on the papers.

Ms Czerkies assessed the defendant as presenting a moderate to high risk of engaging in terrorism behaviors or a serious terrorism offence, noting that the risk is presently contained due to his incarceration. She observed that the defendant’s index offence “appears to have been motivated by his religious beliefs”, and that his (then) outstanding court matter is relevant to the content of her report. She noted that the defendant appears to be part of a family of well-known religious extremists and it is “therefore likely that he was raised in a familial environment where he may have been exposed to violence-promoting militant ideology from a young age”.

Ms Czerkies noted that Mr Benshabir’s education was difficult, marked by social, academic and behavioral difficulties. It was within the school environment that the first indications of radicalisation to an extremist religious ideology were first observed in 2017. There was thereafter a decline in school attendance and his behaviours toward others changed.

During 2024 and 2025, in Ms Czerkies’ opinion, there were further behavioral indications of radicalisation, including engagement with negative peer associations who supported and espoused extremist religious ideology justifying the use of violence, the possession of extremist propaganda and participation in activities that may have provided him with outlets to express his extremist religious ideology and develop a self concept that was primarily based around his peer network and his extremist religious ideology.

Whilst it was not known whether the defendant has continued to exhibit behavioral indicators of radicalisation since he has been in custody, Ms Czerkies believes that there is no evidence to suggest that he has rejected violence as a means to achieve ideological goals and no information to suggest that he has support from the community or his family for non-violence.

Ms Czerkies identified four risk scenarios (limited to the risk of committing a serious terrorism offence) with respect to Mr Benshabir, for the purpose of assisting in the identification of high-risk situations and to develop appropriate monitoring, intervention and risk mitigation strategies:-

With respect to the likelihood of those four risk scenarios materialising, Ms Czerkies is of the view that Mr Benshabir may well continue to demonstrate cognitive and behavioural radicalisation by associating with others who support terrorism. However, she believes it is unlikely that he would engage in an act of terrorism whilst in custody. The restricted nature of custody also means that it is less likely that he will be able to engage in terrorism related behaviors such as access to or possession of violent extremist materials.

Bearing in mind the definition of “serious terrorism offence” in the Act, Ms Czerkies hypothesises that on the information available to her, it is possible that the defendant will engage in an action that endangers a person’s life or causes serious harm or death, with an intention to advance his religious cause, intimidate the public or coerce the government.

In Ms Cserkies’ opinion, if an ESO is considered by the Court to be the most appropriate post-sentence option, Mr Benshabir would benefit from a joint multiagency and multidisciplinary case management approach to rehabilitation and reintegration, including combined enforcement and case management by the NSW High Risk Terrorist Offender Unit and the Corrective Services NSW Terrorism High Risk Offender Unit. She recommends that Mr Benshabir be afforded the opportunity to participate in an assessment with a government Countering Violent Extremism (CVE) specific service or an appropriately qualified practitioner with experience conducting terrorism assessments. Such an approach would assess the presence or absence of both CVE specific and non-CVE specific risks and needs, and identify appropriate interventions to support disengagement and desistance. Engagement is voluntary and would require the defendant’s consent. If the defendant did not consent, either his supervising Community Corrections Officer/Enforcement Officer or a Corrective Services CVE Service and Programme Officer could provide opportunities for him to engage in motivational interventions and refer him to wellbeing programmes which would assist in Mr Benshabir’s rehabilitation.

Ms Czerkies’ opinion that the defendant has a moderate to high risk of engaging in terrorism behaviours or a serious terrorism offence, contained as it was due to his incarceration, greatly influences the finding which I will make.

I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Taking the material before me at its highest, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence (as defined in the Act) if not kept under supervision pursuant to an order. Therefore, I must make the orders appointing two experts to conduct examinations and requiring the defendant to attend those examinations: s 24(5) of the Act.

So far as the argument with respect to s 27(a) is concerned, having read the plaintiff’s material and submissions which were provided to me late on 30 March 2026 or early on 31 March 2026, I invited the parties to provide me with submissions addressing s 27(a) of the Act and the decision of Hamill J in State of New South Wales v Farhat [2026] NSWSC 19 (“Farhat”). Late on 31 March 2026, my chambers received supplementary written submissions from Ms Melis.

In those supplementary written submissions, Ms Melis submitted that it “would appear” to the Court that the defendant’s current custody or supervision “will” expire before the proceedings are determined on the basis that:

I did not understand that the submission set out a paragraph 45(a) above was seriously pressed in circumstances where the Court has ample time to determine an ESO, if necessary.

In Farhat, the plaintiff sought interim relief in the form of an ISO for a period of 28 days commencing from 6 October 2026 (the date on which Mr Farhat’s sentence was due to expire) or, alternatively, from the expiry date of any sentence of imprisonment imposed by the District Court of New South Wales following a severity appeal listed on 29 January 2026. The matter was heard on 28 January 2026. The issue in Farhat was whether the Court could be satisfied that it appeared that the defendant’s current custody will expire before the proceedings are determined, on the basis that a possible outcome of the severity appeal was that the Judge of the District Court would allow the appeal and make orders allowing for Mr Farhat’s immediate or imminent release. Hamill J was not satisfied that it appeared that Mr Farhat’s current custody or supervision will expire before the proceedings are determined. He considered that the Court could not be satisfied that Mr Farhat’s release was inevitable or certain, and he therefore refused to make an ISO.

Farhat is materially indistinguishable from the present case. Here the issue is whether the Court can be satisfied that it appears that Mr Benshabir’s current custody will expire before the proceedings are determined, on the basis that the District Court might allow the appeal and make orders for his immediate or imminent release. Ms Melis made submissions akin to those made before Hamill J.

In Farhat, Hamill J said at [47]-[58]:-

Ms Melis relied on State of New South Wales v Elzamtur [2019] NSWSC 186 (“Elzamtur”), a decision of Campbell J, in which his Honour made an ISO in circumstances when Mr Elzamtur’s sentence was due to expire in May 2019. That judgment, which His Honour appears to have given ex-tempore (the date of the hearing and the decision being both 21 February 2019), dealt with an application for an ISO which was not opposed by Mr Elzamtur’s legal representatives. Ms Melis relied upon his Honour’s observations at [5]-[8] as follows:-

Ms Melis submitted that Campbell J can be understood as saying that the requirement in s 27(a) can be satisfied on the basis of it appearing to the Court that it is likely, at the interlocutory stage, that the current custody or supervision may expire before the proceedings are determined. In Elzmatur, Campbell J clearly did not have the benefit of any argument about the meaning of s 27(a) of the Act. The passages above demonstrate only that his Honour was giving effect to orders which were consented to by the parties (and which were contained in Short Minutes of Order), and I do not believe that his Honour should be taken to have found that “likely” is synonymous with “will” in the context of s 27(a) of the Act. In my opinion, Elzmatur does not assist the plaintiff given the extensive consideration given to the section in the context of the Act by Hamill J, with which I entirely agree.

I observe that a judge of this Court should follow an earlier decision of another judge unless he or she is of the view that it is plainly wrong: see Comino v Kremetis [2023] NSWSC 32 at [61]-[62] per Chen J, citing Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52]; Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]; see also La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201 at 204 (Burchett J). Indeed, there are no compelling reasons not to follow Farhat, which is the only decision of this Court where careful and thoughtful consideration has been given to the meaning of s 27(a). In my opinion, “will” should be given its ordinary meaning, that is, what is realistically inevitable as distinct from what may happen or is likely to happen. I say no more than that which has been elegantly expressed by the Court in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [44] and Hamill J in Farhat. Given that I do not consider Farhat to be plainly wrong, as I consider it to be correct, I am comfortably satisfied that I should follow the decision of Hamill J.

While I am satisfied as to the second condition in s 27(b), namely that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (and that the order be subject to the conditions annexed as Schedule “A” to the Summons), I am not satisfied that Mr Benshabir‘s current custody or supervision will expire before the proceedings are determined, given the unpredictability of the District Court severity appeal on 1 April 2026 (s 27(a)).

I observe that Parliament can simply amend s 27(a) of the Act, so that “will” becomes “may”. In the present circumstances, I would have been satisfied that Mr Benshabir’s current custody or supervision “may” expire before the proceedings are determined.

I therefore made the orders set out in paragraph [4] above.

I note that on 2 April 2026 Mr Benshabir’s severity appeal was allowed by Judge David in the District Court of New South Wales, and the defendant was resentenced to a conditional release order for 12 months commencing on 2 April 2026. The plaintiff thereafter relisted the matter before the duty judge, Emmett J. His Honour’s judgment has been published: see State of New South Wales v Yaqoob Benshabir (Interlocutory) [2026] NSWSC 321.