State of New South Wales v TL (Final)

1. [1]

   By Amended Summons filed in Court on 18 July 2022, the State of New South Wales seeks final orders under the Terrorism High Risk Offenders Act 2017 (NSW) (the “Act”) for the continued supervision of the defendant, TL. An application for interim orders was filed in 2019 and for the reasons set out in State of NSW v TL [2019] NSWSC 1101, Fullerton J made an interim detention order. That order was superseded by other events which caused the making of final orders to be delayed until now. One event was the serving of sentences of imprisonment for other offending. Another was the significant spinal injury suffered by the defendant in custody on 27 November 2021.

2. [2]

   On 3 May 2022 Bellew J revoked the interim detention order, substituted an interim supervision order (ISO), and made other facilitative orders including that the defendant be assessed by relevant experts under s 24(5) of the Act: State of NSW v TL (Preliminary) [2022] NSWSC 946. The ISO was renewed on 31 May, 24 June and 18 July 2022. The current ISO expires on 4 August 2022.

3. [3]

   For clarity, the plaintiff filed in Court a fresh Summons for final orders on 18 July 2022 seeking a 3-year extended supervision order (ESO) on specified conditions. The defendant does not oppose the Court making orders for his supervision for the 3-year period proposed, but submitted that a number of the conditions should be modified. Because of respectful debate and professional cooperation between counsel for the parties, the areas for dispute became more confined and so only the wording of conditions 5, 14, 23 and 37 require determination by the Court. The resolution of those competing positions is set out in [24] to [47] of this judgment.

4. [4]

   Despite the effective concession that the statutory test for an ESO was established on the evidence, the Court still must consider the evidence tendered in support of the application and make the necessary findings.

The Evidence

1. [5]

   The State relied upon the following evidence:

2. [6]

   No evidence was led at the hearing and no cross-examination was required.

The Factual Background

1. [7]

   The index offences, previous application for the interim detention order, the defendant’s further offences and the injuries he sustained in November 2021 have all been cogently and succinctly summarised by Bellew J at [5] to [35] of his judgment. Those parts of his Honour’s judgment are reproduced here for ease of reference:

The current state of the evidence regarding the defendant’s physical abilities and prospect of recovery of functional limb use

1. [8]

   Prince of Wales Hospital notes from June 2022 indicated that TL has had nerve transplant surgery to his left arm.

2. [9]

   TL’s Senior Counsel indicated that this was his second surgery, and the other arm had been done prior. There are no notes about this. There is no evidence as to what improvement in function will follow the surgery other than it will take 6 to 9 months for effects to be seen.

The June 2022 assessment report of Dr Ellis, Psychiatrist

1. [10]

   The State has extracted the key aspects of Dr Ellis’s opinion at [155] to [167] of its written submissions:

The opinion of Dr Seidler, Psychologist June 2022

1. [11]

   The State has extracted in its written submissions the key aspects of Dr Seidler’s assessment and opinion:

The Risk Assessment Reports of Ms Abreu in February and March 2022 and the Risk Management Reports of Mr Pumphrey and S.C. Wang

1. [12]

   Ms Abreu prepared a Supplementary Risk Assessment Report in March 2022. She is a psychologist and currently holds the role of Senior Psychologist, Proactive Assessment and Intervention Service as part of Countering Violent Extremism Programs within Corrective Services New South Wales. She was not able to review TL because he refused to be interviewed but read updating assessments and material including Dr Shetty’s assessment in March 2022 as to the level of willed controlled movement TL has in his thumbs and fingers, in both hands and his capacity to manoeuvre independently indoors by powered wheelchair using a joystick. Without access to the defendant, she completed a VRS assessment based on file information. She stated that she considered this may be an overestimation of potential risk, concluding that his risk of violence remained within the high range, but that she must note given his tetraplegic status that his current capacity to perpetrate an act of physical violence is significantly limited.

2. [13]

   Ms Abreu highlighted the dynamic risk factors most salient to TL are his criminal attitudes, criminal peers, interpersonal aggression and emotional control, instability in relationships, impulsivity, cognitive distortions, community supports, violent lifestyle, violence cycle, and issues with compliance and supervision. She also noted that he appeared to continue to espouse an ideology that justifies the use of violence. She noted in this regard his intra-jail letters to other offenders that appeared to further express his support of violent jihad, for example a letter in July 2021 where TL stated:

3. [14]

   Around the same time TL sent a letter to a different offender containing a hand drawn picture of a gun with the words “Armed and ready Australia”.

4. [15]

   Ms Abreu also referred to TL’s historical verbalisation of rejection of the democratic system and norms and laws of Australian society and that he demonstrates a high level of susceptibility to influence from others. He has historically accessed material identified as espousing a violent extremism narrative. Since returning to custody he has been found to be in possession of numerous materials deemed reflective of extremist ideological views of Islam and concepts promoted by radical Islamists and Salafists. Corrective Services Intel reports indicate that TL watched together with his cellmate, several videos on a USB which were deemed to have a connection to extremist terrorist groups and ideologies, including one video produced by Islamic State media that reportedly containing graphic imagery of beheadings and that TL was noted to be heard to be laughing during the scenes of the beheadings and directing his cellmate’s attention to it.

5. [16]

   Ms Abreu set out her review of various potential risk scenarios for TL including that given TL continues to exhibit relevant underlying extremist ideologies and motivations, whilst disabled physically, he still has a high capacity in other forms such as to connect with others to influence and be influenced by them, to incite others, and to access resources and funds. She also noted TL’s associations and connections to others continues to be a relevant risk factor, despite his injury.

6. [17]

   Based on Ms Abreru’s assessment, TL continues to remain in the high range for risk of engaging in an act of violence, politically motivated violence and/or terrorism activity and this warrants both monitoring and active intervention to manage the risk.

7. [18]

   Mr Pumphrey, described as Team Leader in the Terrorism High-Risk Offender Unit within Corrective Services carried out an analysis of OIMS (Offender Integrated Management System) records, police facts sheets, criminal history and the risk assessment report by Ms Abreu in February 2022 as well as the assessment report of Dr Shetty dated February 2022. Mr Pumphrey concluded that there will need to be high intensity multi-agency and multidisciplinary case management with a comprehensive case management plan including interventions to manage the risks presented by TL. He provided point by point analysis as to why the conditions proposed by the State were appropriate and necessary.

8. [19]

   Senior Constable Wang, an officer attached to the High-Risk Terrorist Offenders Unit Counter - Terrorism Command within the New South Wales Police provided some generalities in terms of risk having reviewed the documentation created by others. He explained in a little more detail the need for supervision of association and location, noting that prior knowledge and understanding of the movements of the defendant are important to ensure his locations are known in advance and possible risks can be mitigated despite his current position as a tetraplegic and needing full-time care. Having conducted an analysis of the proposed conditions, Senior Constable Wang put forward the view that the conditions were necessary to prevent the defendant from “self -radicalising”, and to reduce the risk of reoffending as well as the risk that he might disseminate such materials for the purpose of radicalising or influencing others.

Principles and the Operation of the Act

1. [20]

   The principles and operation of the Act and relevant authorities have been helpfully and accurately summarised in the State’s written submissions at [97] to [114]:

Decision and Evaluation of Mandatory Statutory considerations

1. [21]

   I am satisfied that all the statutory preconditions have been met. The defendant is an eligible offender who was in custody at the time the original application for the order was filed, and at that time he was serving a sentence of imprisonment for a New South Wales indictable offence. The application was made in accordance with Part 2 of the Act.

2. [22]

   I am satisfied to a high degree of probability that TL poses an unacceptable risk of committing a serious terrorism offense if not kept under supervision under an ESO.

3. [23]

   In reaching that view I have carefully considered the factors set out in s 25(3) of the Act and the evidence tendered addressing those factors. I have also borne in mind that whilst the defendant is now the subject of significant physical limitations given his spinal cord injury, (and putting to one side the unproven potential for some limited further recovery of use of his arms), he still has a problematic belief system deeply ingrained and carries with him an unacceptable risk that he will commit a serious terrorism offence in the nature of Part 5.3 offences such as the planning, preparation, recruiting or facilitation offences described in that part of the Criminal Code Act 1995 (NSW).

Conditions in dispute - 5, 14, 31 and 37

1. [24]

   Section 29 of the Act provides for conditions that may be imposed on extended or interim supervision orders. Subsection 1 provides that such an order “may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate, including but not limited to directions requiring the offender to do any one or more of the following”. This is followed by a series of potential conditions (a) to (t).

2. [25]

   Subsection 1A of s 29 provides that “Unless the Court orders differently” and “without limiting the conditions that the court may impose under ss 1”, an ESO… “must include conditions requiring the eligible offender…” and this is followed by a series of conditions covering supervision, electronic monitoring, residence, a prohibition from leaving New South Wales except with approval, to submit to search of the offenders person and residence, not to use prohibited drugs, to comply with rules of approved accommodation, to submit to drug and alcohol testing, not to possess certain firearms, guns or explosive devices, to be available to interview as requested, to undergo ongoing psychological or psychiatric assessment or counselling as directed, not to start a new job without prior approval, to obey reasonable direction, to permit an enforcement officer (“EO”) to visit and enter premises, to notify of any change in employment, not to associate, not to change name or appearance and not to frequent or visit any place or district specified by an EO.

3. [26]

   The rationale behind this range of potential conditions is obvious however s 29(1A) does not preclude the Court from “ordering differently”, and so, amongst other things, and consistently within the objects of the Act, it permits the Court to word a condition differently if it considers that to be appropriate.

4. [27]

   Condition 5 provides for the need for the defendant to tell an EO the details of vehicles he intends to hire or use. Given the defendant’s current state of disability, he is not able to operate a vehicle on his own and this means that he would need to provide details of vehicles that other people will be using to transport him.

5. [28]

   The defendant requested that he not be required to notify an EO of the colour, make, model and registration of any vehicle he uses by way of non-emergency patient transport or with an employed carer or medical disability or support worker or taxi.

6. [29]

   In response, the State argued that the proposed exceptions were too broad and encompassed transport vehicles not used for therapeutic purposes and that the absolution from notifying the EO should be limited to emergency vehicles.

7. [30]

   I agree with the State’s position. Vehicle use and deployment is a matter that entails some potential risk for use for, or in association with the planning of, or execution of, a terrorist purpose. It would be naïve to assume a person retained as a care worker or support worker or assistant - which requires no recognised ethical checks or boundaries - would be someone who could never be used or manipulated for other purposes, or a person who harbours problematic beliefs, be engaged in such a role. Further, those who supervise TL should be aware of vehicles he is in so he can be located if necessary in the community.

8. [31]

   Accordingly, I confine the position to ambulances only as immune from the requirements of the condition. At a practical level, the condition just requires some forethought so that the EO is kept informed of what vehicles are being used. Obviously in the case of an emergency, ambulance transport would be both appropriate and necessary, and could be identified on brief inquiry by an EO if required.

9. [32]

   In respect of condition 14 which deals with where the defendant can go, the area for dispute was that the defendant wanted a rider on the condition that the EO “must believe on reasonable grounds that the defendant visiting the place or district will increase the defendant’s risk of committing a serious terrorism offence or otherwise failing to comply with another condition of this order”.

10. [33]

    The State argued that in some circumstances, it may be necessary to prevent TL from visiting a place before an enforcement officer has had the opportunity to form the belief regarding risk, for example because a risk assessment is in process. It also may not be appropriate for an EO to disclose to TL the reasons underlying a direction not to visit a place as to do so might reveal sensitive information.

11. [34]

    I accept the State’s position on this condition and consider it one that reduces risks presented by TL and accordingly I impose the condition in the form sought by the State.

12. [35]

    Condition 23 deals with ongoing psychological or psychiatric assessment and counselling. The area for dispute is in relation to use of the word “undergo”. The defendant submitted that this potentially requires a kind of unmeasurable mandatory participation or subjective evaluation of the extent of his participation in, for example, a psychological counselling process. It is apt to cause problems because it could be argued that if the defendant does not change his beliefs and views, that he is not “undergoing” the assessment and/or treatment appropriately. Given that failure to comply with conditions have criminal sanctions, this is an important matter to consider.

13. [36]

    The State submitted that the language used - “undergo” - reflects the language in s 29(1A)(k) which provides for the mandatory conditions that should be included in an ESO. To respond to TL’s risk profile, mere attendance is insufficient. For example, attendance, but a failure to undergo a psychiatric assessment would impede the ongoing management of TL’s risk factors.

14. [37]

    I do not agree that the effect of s 29(1A)(k) is to mandate the wordings in that subsection for the reasons I have set out at [25] to [26]. However this is a difficult debate to resolve because both competing submissions have some merit. I observe anecdotally on a review of like conditions imposed on other offenders under the Act, a number of those simply refer to the requirement to “attend”.

15. [38]

    In my view “attend” is too low a requirement but use of the word “undergo” entails a subjective and potentially argumentative interpretation of TL’s response to counselling.

16. [39]

    In my view the language that should be used is that the defendant must “attend and participate in” ongoing psychological or psychiatric assessment or counselling… etc as directed. This entails both physical attendance and involvement in the process sought to be pursued by the relevant healthcare practitioner.

17. [40]

    Condition 31 deals with the defendant’s use of telephone or electronic communication. This is obviously a significant condition given the defendant’s physical limitations and his assertions to, in particular to Dr Seidler who reviewed him in June 2022, that whilst he could no longer physically be involved in committing an act of violence, he would still be able to propagate terrorism for example by sending money to others or encouraging people to engage in acts of terrorism, despite him then saying that he had no intention of engaging in such behaviour because he “will not jeopardise losing his kids again”.

18. [41]

    Dr Ellis in his June 2022 assessment noted the defendant’s self-appointed dispensation from Jihad but that he maintains the belief that it is a duty for true Muslims to use violence in the cause and that despite TL telling Dr Ellis he would not seek out like-minded others, Dr Ellis considered it a risk because of TL’s unstable personality and his ability to influence others and be easily influenced. Dr Ellis observed that whilst TL has not previously been proven to engage in group activity for terrorism, he has engaged in other group criminal activity he has not been proven to express any formed plans for extremist action, but shows evidence of planning other criminal acts. TL also indicated that he was prepared to die for prayers being instated in the Super-Max and his actions were consistent with this.

19. [42]

    Given TL’s physical limitations, the obvious practical risk he presents would be planning, communicating and enabling others to carry out serious terrorism offences. Depending on what line is crossed, that behaviour itself would be considered to be a serious terrorism offence if it reaches the level of planning, preparation recruiting or facilitation offences such as those set out in Part 5.3 of the Criminal Code Act.

20. [43]

    The defendant did not object to the general limiting condition being imposed, but argued that use of the term “knowingly cause” another person to access or use on the defendant’s behalf, was an arcane phrase that could cause confusion.

21. [44]

    The State submitted that the term “knowingly cause” is able to be understood and clarifies the requisite intention while ensuring that the condition can operate appropriately to respond to TL’s risk factors. Use of the word “ask” confines the condition in a way which may exclude behaviour that does amount to risk posed by TL.

22. [45]

    I accept the State’s submission. I do not consider the term “knowingly cause” to be too vague. I consider it a necessary addition to the wording of the condition to capture certain types of behaviour that would not be caught by use of the word “ask”.

23. [46]

    The defendant also sought a carve out to the condition to the effect that certain specified persons or staff performing care duties, medical, disability or support workers would be able to “order food, clothes, toiletries and household items for the defendant”. The origin of this proposed addition seems to be queries raised by police over the defendant’s sister ordering takeaway food for the defendant online.

24. [47]

    I am of the view that any carveout should be limited to essential items only. A general carveout referring to “household items” is too wide and could entail items that have multiple uses including problematic uses. Accordingly, the addition I have ordered is as follows:

Orders

1. [48]

   I make the following orders:

   1. (1)

      Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is subject to an extended supervision order for a period of 3 years from 4 August 2022.

   2. (2)

      Pursuant to s 29(1) of the Terrorism High Risk Offenders Act 2017 (NSW), the defendant for the period of the extended supervision order is to comply with the conditions set out in the Schedule of Conditions attached to this judgment.