State of New South Wales v Gavin

1. [1]

   HIS HONOUR: By its summons filed on 8 December 2021, the State of New South Wales seeks, among other things, an order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 appointing a psychiatrist and a psychologist to examine Mr Gavin and to furnish reports about him. The State seeks an associated order that Mr Gavin be subject to an interim supervision order pending a final hearing at which the State will ask that any interim order that is made be extended for a further period of three years.

2. [2]

   Mr Gavin is presently serving a sentence of imprisonment for one count of stalk/intimidate with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. For that offence, to which he pleaded guilty in the Penrith Local Court on 11 August 2021, he was sentenced to a term of imprisonment of 15 months commencing on 14 November 2020. He currently lives in the community, having been released on parole at the expiration of his 9-month non-parole period on 13 August 2021. His sentence is due to expire on 13 February 2022.

3. [3]

   The scope of the preliminary inquiry that I am required to conduct directs attention to two questions:

4. [4]

   Section 10 of the Act defines an eligible offender in the following relevant terms:

5. [5]

   Section 20 of the Act provides as follows:

6. [6]

   Section 4 of the Act defines "serious terrorism offence" as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment. Section 100.1(1) of the Code defines a terrorist act as follows:

7. [7]

   Section 100.1(2) of the Code defines the elements of the definition of a terrorist act to include the following:

8. [8]

   The State contends that the offence committed by Mr Gavin contrary to s 13 of the Crimes (Domestic and Personal Violence) Act for which he is currently serving a sentence (the index offence) qualifies Mr Gavin as a convicted NSW terrorism activity offender within the meaning of s 10(1) of the Terrorism (High Risk Offenders) Act. Briefly considered, the index offence arose out of the following facts.

9. [9]

   On 29 May 2020, Mr Gavin was arrested and refused bail on charges of resist/hinder police in the execution of duty, possess or use a prohibited weapon without a permit, stalk/intimidate with intent to cause fear of physical harm and use carriage service to threaten serious harm.

10. [10]

    On 16 May 2020, Mr Gavin had posted a video on the "Free Man" YouTube channel entitled "Victorian Bank stealing a paid for property … Making a family with a new born homless [sic]". The video runs for just under 54 minutes. At 18 minutes and 25 seconds, Mr Gavin relates a story concerning a time when he was out running attempting to visit his father in hospital. He expresses the view that 5G allows law enforcement authorities to exercise control over people from a distance. Having expressed that view, he says:

11. [11]

    Tracey Ford was the Chief Inspector attached to the Penrith Police Area Command. Mr Gavin had known her since high school.

12. [12]

    Although this was the portion of the video that formed the basis of the index offences, it contains several other statements as follows:

13. [13]

    The index offence did not involve Mr Gavin in the actual physical commission of any of the acts that he threatened to perform. In accordance with the relevant definitions, however, a terrorist act includes a threat of action.

14. [14]

    In addition to the conduct that formed the basis of the index offence, Mr Gavin posted a series of videos of himself on YouTube. Senior counsel for the State in these proceedings has helpfully extracted significant portions of this material as an annexure to his written submissions. The State relies upon this material as relevant to my inquiry as material falling within s 10(2) of the Terrorism (High Risk Offenders) Act. That material is extensive and is as follows:

15. [15]

    An additional schedule of extracts was also relied upon by the State as follows:

16. [16]

    These posts were all removed from YouTube by Mr Gavin after his release from custody at the expiration of his non-parole period of imprisonment for the index offence. Except for the index offence material, none of these posts has been the subject of a criminal charge or conviction.

Statutory preconditions

1. [17]

   I am satisfied that Mr Gavin is an eligible offender as required by s 20(a) of the Terrorism (High Risk Offenders) Act. He was in custody or under supervision at the time the original application for the order was filed while serving a sentence of imprisonment for a NSW indictable offence.

2. [18]

   I am also satisfied that the State's application was made in accordance with Part 2 of the Act: ss 20(b), 23.

3. [19]

   I am not, however, satisfied that Mr Gavin is a convicted NSW terrorism activity offender. This is for the following reasons.

4. [20]

   Before Mr Gavin can be a convicted NSW terrorism activity offender, in accordance with s 10(1)(c), he must at least be making or have previously made a statement, or must be carrying out or have previously carried out an activity, advocating support for a terrorist act or violent extremism, or have or previously have had a personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. It is uncontroversial that Mr Gavin does not have and has never had a personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for a terrorist act or violent extremism.

5. [21]

   Section 10(1A) provides further clarification of s 10. Mr Gavin, however, has never made a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. Nor has he used or displayed images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. Presumably, the State maintains that Mr Gavin has made a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism.

6. [22]

   The underpinning preconditions to Mr Gavin's qualification as a convicted NSW terrorism activity offender continue to be that the relevant "action is done or the threat is made with the intention of advancing a political, religious or ideological cause" or that he advocates support for violent extremism.

7. [23]

   The concept of a terrorist act for the purposes of these proceedings is not some vague, inchoate and ill-defined idea operating at large: the Terrorism (High Risk Offenders) Act specifically incorporates the definition of terrorist act from s 100.1(1) of the Criminal Code. To the extent that the State relies upon Mr Gavin having advocated support for a terrorist act, it must demonstrate or establish that the acts or threats done or made by him were "made with the intention of advancing a political, religious or ideological cause".

8. [24]

   In my opinion, nothing said or done or threatened by Mr Gavin appears in any way to be related to, or informed or influenced by, the advancement of a political, religious or ideological cause. None is specifically or even generally referred to and none can be said to be incorporated by reference. Doing the best I can, Mr Gavin's words appear to me to be no more or less than an angry and discursive rant about unspecified and unrelated grievances apparently triggered by relationship difficulties or his experiences with the police. Neither is related to religion or ideology. Nor could it be said that any reference to the police amounts to the advancement of a political cause. Disaffection with the police or with a particular member of the police force, or even the making of threats against the police, however reprehensible, seems in the present case to be far removed from the advancement of some related political cause. That is so notwithstanding the fact that Mr Gavin made the statements which constituted a criminal offence for which he was convicted.

9. [25]

   Can Mr Gavin be said to have advocated support for violent extremism? Considerable assistance in understanding that expression is provided by the judgment of Basten JA in Hardy v State of New South Wales [2021] NSWCA 338 at [28] - [30]:

10. [26]

    In the present context, I accept that Mr Gavin's words suggest or deal with extreme violence. By way of example, that is the reason why the words forming the basis of his conviction constituted a New South Wales criminal offence. None of his words, however, suggests or raises the spectre of violent extremism as opposed to extreme violence. Extreme violence is not the same as violent extremism: violent extremism is the beliefs and actions of people who support or use violence to achieve ideological, religious, or political goals. That may include terrorism, as well as other forms of politically motivated and communal violence, but is not necessarily or always co-extensive with terrorism. In the words of Basten JA, "the term 'violent extremism' does not refer to any form of violent behaviour, but rather a violent form of an ideology". Mr Hardy's behaviour was characterised as "ideological fanaticism" revealed by his "unequivocal focus on senior politicians". Mr Gavin's words are not susceptible to a cognate interpretation in the circumstances of this case.

11. [27]

    Although it is unnecessary to consider it, having regard to the view I have formed about whether anything Mr Gavin has said concerns a terrorist act or violent extremism, assessment of whether he is a convicted NSW terrorism activity offender also raises the issue of whether his statements are “advocating support for any terrorist act or violent extremism” (s 10(1)(c)) or are “making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism” (s 10(1A)(iii)). Although Mr Gavin has used words that include or contain references to extreme violence, they do not in my opinion “advocate support” for anything, and certainly not terrorist acts, which involve the identification of a political, religious or ideological cause. The fact that the subject matter of Mr Gavin’s postings may be extreme violence, is alone insufficient to amount to support for it.

12. [28]

    I am accordingly not satisfied that Mr Gavin is a convicted NSW terrorism activity offender.

Unacceptable risk of committing a serious terrorism offence

1. [29]

   Notwithstanding the view I have formed, it remains necessary to proceed to consider the question raised in these proceedings by s 20(d) of the Act.

2. [30]

   I can only make an extended supervision order if I am satisfied to a high degree of probability that Mr Gavin poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order: s 20(d). I am not required to determine that the risk of committing a serious terrorism offence is "more likely than not": s 21.

3. [31]

   The elements of s 20(d) were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 and summarised at [29] as follows:

4. [32]

   "Serious terrorism offences" are defined to be offences against Part 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment: s 4(1) of the Terrorism (High Risk Offenders) Act. Those offences include engaging in a terrorist act (s 101.1 of the Criminal Code); doing acts in preparation for, or planning, a terrorist act (s 101.6); membership of a terrorist organisation (s 102.3); recruiting for a terrorist organisation (s 102.4); getting funds to, from or for a terrorist organisation (s 102.6); and providing support to a terrorist organisation (s 102.7). These offences cover a very broad range of conduct and do not, for example, require the commission of an act of violence. Mr Gavin has neither committed nor been charged or convicted of a terrorism offence.

5. [33]

   Although it is not entirely clear having regard to the comments of the Court of Appeal in Naaman (No 2) at [29], later authorities have eschewed a requirement to specify the precise "serious terrorism offence": State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [189]; State of New South Wales v Alam [2020] NSWSC 295 at [129].

6. [34]

   The matters of primary importance to the Court's determination in respect of s 20(d) are informed by some of the mandatory considerations for the making of an extended supervision order in s 25(3). The paramount consideration in determining whether to make an extended supervision order is the safety and protection of the community: s 25(2). The impact of an extended supervision order on an offender's liberty may be relevant to the Court's exercise of its discretion to make the relevant orders but is not to be considered in determining whether the preconditions are satisfied.

Risk Assessment Report

1. [35]

   The State provided detailed written submissions with respect to a Risk Assessment Report dated 26 November 2021 that has been prepared in relation to Mr Gavin. The following summaries are taken from those submissions. Mr Gavin did not participate in the preparation of the report. The author of the report made the following observation:

2. [36]

   In relation to Mr Gavin’s ideology, the report contains the following comments:

3. [37]

   The Risk Assessment Report author applied the Violence Risk Scale to Mr Gavin, indicating overall that his risk of violence fell within the medium category of risk. She notes that Mr Gavin has a “history of interpersonal aggression and violence towards others (i.e., strangers, family, partners, authority)” and that his “long standing low frustration tolerance and difficulties managing his anger appear to have perpetuated his ongoing use of verbal hostility and aggression towards others”. The author notes that referrals to interventions aimed to increase his ability to resolve emotional dysregulation have been to no avail, and that when Mr Gavin was offered aggression counselling “he remained adamant that it was not relevant or required”. The author goes on to say:

4. [38]

   Importantly, at [84], the Risk Assessment Report author notes that as the assessment was completed on the basis of file information only, it is possible that the assessed level of risk is an under or over representation of the likelihood of future violence.

5. [39]

   When considering risk promoting factors, the Risk Assessment Report author discusses Mr Gavin’s ideology as follows:

6. [40]

   The Risk Assessment Report author identifies that “[a] notable concern is the extent of [Mr Gavin’s] influence over others.” At [93] she identifies several comments from his online followers expressing appreciation for his knowledge and the education they have received from his videos. The Risk Assessment Report author goes on to say:

7. [41]

   At [96] the author notes that “whilst within the information reviewed for the purpose of this report there is no evidence of overt plans or preparations for an act of violent extremism, politically motivated violence or terrorism, [Mr Gavin’s] online rhetoric does demonstrate the presence of considered thought about the process of how he (or others) could cause maximum harm to others and property should he choose to.” [Emphasis added]

8. [42]

   In relation to Mr Gavin’s risk describing factors, the Risk Assessment Report author notes that Mr Gavin has not engaged in a physical act of violent extremism, politically motivated violence or terrorism, but that he “has been observed to make threats of harm to others and property within the context of an extremist ideology.” The author considers that the motivation for this behaviour has shifted over time. She concludes at [99] that “[a]ny potential future physical act of violent extremism, politically motivated violence or terrorism is likely to be motivated by a need to maintain his status, but also moral obligation and superiority.”

9. [43]

   At [100], the Risk Assessment Report author observes that Mr Gavin appears to be maintaining his ideology. She notes that "[h]is ideology identifies the government (and it's [sic] enforcers e.g. police, correctional officers, courts etc.) as illegitimate and at times the source of harm to him and others. This increases the risk that he sees the government actions as a direct threat and subsequently condones the use of violence in the context of what he would perceive as 'self-defence'." She connects this ideology directly to the likelihood of harm, saying "[w]hilst many in the community may accept violence in the context of self-defence, it is Mr Gavin's acceptance and promotion of the Sovereign Citizen ideology which escalates the likelihood and threat of harm".

10. [44]

    The Risk Assessment Report author administered the Terrorist Radicalisation Protocol. She notes at [106] that the presence of both “distal and proximal” warning behaviours is indicative of a need for active risk management. Her report continues:

11. [45]

    Based on the VERA-2R and the TRAP-18, the Risk Assessment Report author concludes that Mr Gavin presents as an individual who has been radicalised to an extreme ideology. She notes at [113] that "[w]hilst he has not engaged in an act of ideologically motivated violence, he has verbalised threats and detailed methods of how to achieve mass impact outcomes. He has the network and capability to either incite others to or engage in an independent act of violent extremism, politically motivated violence or terrorism".

12. [46]

    The Risk Assessment Report author does not provide an overall risk rating because of Mr Gavin's profile and the "significant variability in behaviour that could occur within the context of violent extremism, politically motivated violence and terrorism". Rather, she considers different risk scenarios and identifies individual risk ratings considering the nature of the threat posed, the extent of the harm that could be caused, and imminence. The author concludes that if no post-sentence order is imposed, Mr Gavin is at high risk of resuming his online activities. She considers this will "likely have little impact and cause minimal direct harm".

13. [47]

    The author concludes, in respect of Mr Gavin collecting or making documents likely to facilitate terrorist acts, that he is at high risk of continuing to develop online content that could incite others to engage in acts of violent extremism, politically motivated violence or terrorism. She notes that "[t]his will likely have little immediate impact or harm, however overtime and within the right context, it may have a significant impact and cause significant harm". She notes that Mr Gavin's "ability and willingness to share knowledge about the use and creation of weapons to cause mass impact is notably concerning".

14. [48]

    In relation to Mr Gavin becoming a member of a terrorist organisation, the author considers that there is a high risk that Mr Gavin will engage with likeminded individuals in person or online. She considers that there is a moderate risk that he will subscribe formally or informally to a Sovereign Citizen group or continue to "independently form an ideologically influenced and driven group". She concludes that "[i]n the immediacy, this will likely have little impact and cause minimal harm. Over time and if a formalised group is created, however, it is likely to have a significant societal impact and could possibly cause a level of societal harm to others".

15. [49]

    The author concludes that there is a high risk of threats of physical violence toward those Mr Gavin identifies as being the "enemy" (i.e., NSW Police, Magistrates, Politicians). Due to Mr Gavin's refusal to engage with the author, she was unable to complete a detailed analysis of risk and protective factors.

16. [50]

    While noting that Mr Gavin does not have a history of instrumental violence, the Risk Assessment Report author considers that his statements, in combination with his knowledge and experience with explosives, mean that he is at moderate risk of planning and preparing for the destruction of state or commonwealth property and actual destruction of state or commonwealth property.

17. [51]

    The Risk Assessment Report author concludes that Mr Gavin is at high risk of breaching an extended supervision order.

Mr Gavin’s criminal history

1. [52]

   Section 25(3)(j) of the Act mandates consideration of Mr Gavin’s criminal history. Reference has already been made to the index offence. Mr Gavin’s criminal history appears otherwise to be of variable relevance or significance to the present inquiry.

2. [53]

   Mr Gavin’s criminal history is characterised by a pattern of escalating arguments or disagreements resulting in physical confrontations when he is placed under stress. He similarly responds with aggression in situations that he perceives to be unfair or unjust. In particular, Mr Gavin’s interactions with the police and the courts have been characterised by distrust and animosity. In particular, Mr Gavin maintains that the police and the courts cannot legitimately exercise authority over him.

3. [54]

   Part of the material upon which the State relies, however, includes a large number of COPS entries relating to Mr Gavin, detailing incidents involving him where police have been called to attend. These are to be found at tabs 155 to 177 of exhibit VC-1 to the affidavit of Vincenzo Camporeale affirmed 9 December 2021. While not all strictly fitting the description of a criminal history, the entries are nonetheless instructive for present purposes.

4. [55]

   At the substantial risk of inadequately summarising, and therefore possibly misrepresenting, the thrust of these extensive entries, it is apparent that they almost always involve Mr Gavin in disputes with strangers that include Mr Gavin losing his temper or being unable to control it. The incidents include Mr Gavin speaking in an aggressive manner in a magistrate’s court on 8 May 2015 when he was responding to an AVO issued at the instance of his then wife. For example:

5. [56]

   Mr Gavin was later arrested and charged with a breach of s 9 of the Court Security Act 2005 for recording the proceedings on his mobile phone. The COPS entry notes that Mr Gavin “refused to acknowledge police procedure and continued to rant about corporations and the government”.

6. [57]

   On 30 August 2017, Mr Gavin was involved in an incident at Parramatta Local Court:

7. [58]

   The material on which the State relies includes other examples of Mr Gavin becoming aggressive during his attendance at courts.

8. [59]

   Another example of the COPS entries unrelated to court attendance is as follows:

9. [60]

   The material also contains several reported incidents in which Mr Gavin has become angry and aggressive with members of the public. For example, one such incident involved Mr Gavin becoming aggressive with a service station attendant when he appears accidentally to have spilt petrol on himself. Another involved a confrontation with the driver of a vehicle that apparently came into contact with his. Although police were called, the other people involved in these incidents did not require police action to be taken. The material on which the State relies includes several other examples that attracted police attention, but which did not result in prosecution, perhaps consistently with the recognition of Mr Gavin’s mental health presentation.

Hawkesbury Community Mental Health records

1. [61]

   Mr Gavin was medicated for his mental health condition over 2020 and 2021. In November 2021, his psychiatrist discontinued some injections because they were affecting his physical abilities. He continues to take antipsychotic medication. Mr Gavin did not participate in any treatment or rehabilitation programs while in custody, although there is no evidence that he refused to do so.

2. [62]

   Mr Gavin has been extensively assessed and reviewed by community health facilities. The following are examples of assessments performed last year:

Compliance with obligations

1. [63]

   Mr Gavin has breached conditional release orders in the past. He has, however, complied with the conditions of his parole since his release on 13 August 2021.

Assessment of risk

1. [64]

   Much has been written on the topic of s 20(d) of the Act and the need to be satisfied to a high degree of probability that an offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order. I should state at the outset that I am not satisfied at all that Mr Gavin poses any such risk.

2. [65]

   The State has submitted that Mr Gavin has “a lengthy history of violence and poor self-control”. While I accept that contention is accurate at one level, it needs to be placed in context. The sentence of imprisonment that Mr Gavin is currently serving on parole is his first. He was sentenced to a term of imprisonment in December 2015 for the offence of affray, but that was varied on appeal to the imposition of a s 9 bond. He has several convictions for resisting an officer in the execution of his duty. He was made subject to a conditional release order in April 2018 for assaulting an officer in the execution of his duty, later the subject of a Mental Health Act 2007 assessment. His criminal history is consistent with his inability in certain situations to control his anger and the related circumstance of mental health issues. None of his offences involving violence could be characterised as being at the most serious end of the scale.

3. [66]

   In State of New South Wales v Alam [2020] NSWSC 295, her Honour Wilson J rejected an application under the Act at the preliminary stage, observing at [174] and [188]-[189] as follows:

4. [67]

   The State submitted that this case provided “an important contrast” with Mr Gavin’s situation. First, the index offences here bear a clear connection with Mr Gavin’s extreme views. Secondly, although Mr Gavin’s past criminal offences could not be said to have been intended to advance a political cause, his views bear a clear connection to some of those offences, particularly those involving police and courts.

5. [68]

   The State submitted that, taking the evidence in its totality, there is “a clear risk of [Mr Gavin’s] conduct intensifying to a point where he carries out an action or makes a threat with the intention required under s 100.1 of the Criminal Code”.

6. [69]

   I am unable to accept that submission. Taking account of all of the evidence upon which the State relies, it seems to me to establish that Mr Gavin poses a risk of committing only offences of the general type reflected in, or evidenced by, his criminal history. In expressing that view, I acknowledge the tone and content of the threats constituting the index offence and of the YouTube videos otherwise referred to. However, I am not satisfied by reference to this material, and I am certainly not satisfied to a high degree of probability, that Mr Gavin poses a risk of committing a serious terrorism offence if not kept under supervision.

7. [70]

   Part of the evidence upon which the State relies includes the fact that the offensive YouTube posts partly extracted above have since been taken down by Mr Gavin and nothing of the same nature has reappeared. The evidence includes Mr Gavin’s express disavowal of any intention to repeat such conduct. The State is quick to emphasise that that is, or may be, because Mr Gavin is currently on parole subject to conditions and that he well appreciates the consequences for his liberty in the community if similar offensive videos were to be published. As true as that may be, and tacitly acknowledged by Mr Gavin in several locations in the evidence, as well as during the hearing of these proceedings, the prospect that he will revert to such conduct when his parole expires does not overwhelm the inference that he will not repeat the conduct in any circumstances as he understands what will happen if he does.

8. [71]

   I remain unsatisfied to a high degree of probability or indeed at all that Mr Gavin poses an unacceptable risk of committing a serious terrorism offence unless kept under supervision of an extended order.

9. [72]

   Even if I were not of that view, as a matter of discretion I would decline to make the orders sought by the State: see Naaman (No 2) at [29.6]. Having regard to the difficulties with the authorities that Mr Gavin has demonstrated over the years, and without elaborating further for reasons that I trust will be obvious, subjecting Mr Gavin to a supervision order even at this preliminary stage would in my opinion be counterproductive and inimical to his post-release rehabilitation.

Conclusion and orders

1. [73]

   The summons filed on 8 December 2021 should be dismissed with costs.