State of New South Wales v Dunn

1. [1]

   HER HONOUR: Mr Dunn – not his real name, a pseudonym order having been made on 18 May 2018 – has a long history of threatening acts of violence against police and others, generally in the context of his asserted loyalty to the terrorist group ISIS, or the so-called “Caliphate”, or otherwise “in the name of Allah”. The State of New South Wales contends that he poses a danger to the community, and should be detained.

2. [2]

   A Further Amended Summons was filed on 27 March 2019, in which the State seeks orders pursuant to ss 34, 39(1)(b) and 40 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) to subject the defendant to a continuing detention order (“CDO”), followed by an extended supervision order (“ESO”) pursuant to ss 20, 25, and 26. The defendant opposes a CDO, and particularly, one of the duration sought by the State, that being for a period of 18 months. He contends that he is in need of medical treatment for a mental illness, and not incarceration.

3. [3]

   Proceedings under the Act were commenced by the State on 11 May 2018 with a Summons filed on that date.

4. [4]

   The matter came before N Adams J at a preliminary stage of the proceedings. Her Honour made orders on 19 June 2018 appointing two qualified psychiatrists to examine the defendant, and requiring him to attend the examinations. The defendant was made the subject of an interim detention order (“IDO”): State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008 (“Dunn 2018”).

5. [5]

   Her Honour’s judgment makes for essential reading in fully understanding the background to these proceedings, and their history until June 2018, and I gratefully refer to it, containing as it does careful consideration of the relevant (and relatively new) legislation, and a detailed account of the evidence presented by the State to that point. It is not intended in this judgment to repeat in any detail all of the matters set out in Dunn 2018.

6. [6]

   The legislative scheme under which these proceedings have been brought was discussed at [8]-[22] of Dunn 2018. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision and continuing detention of offenders who come within the parameters of the statute. A further object is to encourage such persons to undertake rehabilitation.

7. [7]

   A CDO or ESO can be imposed upon an offender where the relevant statutory criteria are satisfied.

8. [8]

   Here, there is no dispute that the defendant is an “eligible offender” as defined in s 7 of the Act, and a “detained offender” within the meaning of s 33 and for the purposes of s 34; or that an application has been made in accordance with Part 3 of the Act. Neither is there any issue that the evidence is capable of establishing that the defendant is a convicted “NSW terrorism activity offender”, as provided for by s 10 of the Act, as amended.

9. [9]

   The recent amendments to the Act, and which post-date Dunn 2018, were made by the Community Protection Legislation Amendment Act 2018 (NSW), effective from 28 November 2018. In particular, s 10(1)(c)(i) was amended, and s 10(1A)(a) was inserted. Section 10 in its amended form provides,

10. [10]

    The defendant does not dispute having made statements, including making threats of violence, of a kind that is promoted by a group that support terrorist acts or violent extremism. He does not dispute that it is open to the Court to conclude that the evidence establishes that his conduct brings him within the operation of s 10(1)(c)(i), bearing in mind s 10(1A)(a)(iii), and noting s 11 of the Act.

11. [11]

    The matter in dispute for determination is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a “serious terrorism offence” (as defined by s 4(1) of the Act) if not detained.

12. [12]

    The principles that apply generally to an application of this nature were considered at [23]-[27] of Dunn 2018. I adopt what her Honour there said. Subsequent to her Honour’s discussion of them, the Court of Appeal had cause to consider the operation of s 20(d) of the Act, that being the parallel provision to s 34(1)(d). The procedure in approaching the test for making an ESO was set out at [29] of State of New South Wales v Naaman (No 2) [2018] NSWCA 328, as follows:

The Evidence Adduced by the State

1. [13]

   The Court has been provided with a significant amount of documentary evidence in the State’s case. Much of the documentary material was before the Court on the preliminary hearing, and is referred to in Dunn 2018 at [41]-[42]. At [47]-[121] of that decision N Adams J has provided a comprehensive summary of the evidence, which is not repeated here.

2. [14]

   The additional evidence tendered at the final hearing on 26 and 27 March 2019 is: an affidavit of Christopher Butler of 18 December 2018 (producing Ex. CB3); an affidavit of Amanda Leek of 22 February 2019; the affidavit of Danielle Anderson of 26 February 2019; and affidavits of Vincenzo Camporeale of 26 February 2019 (producing Ex. VC1), and 11 March 2019. Also read on the application was an affidavit from Dr Sarah Jane Spencer of 25 March 2019; an affidavit of Mick Marshall of the same date; and affidavits from Josh Pallas of 22 March 2019, 25 March 2019 and 26 March 2019, the latter containing a transcript of a recorded telephone conversation of 2 March 2019 at 9.51am (the transcripts of two other telephone calls annexed to the affidavit having been excluded from evidence).

3. [15]

   The Court also had the benefit of reports from the court-appointed experts, being a report of Dr Kerri Eagle of 15 February 2019 and a report of Dr Andrew Ellis of 20 February 2019. Further, reports were tendered from Professor Paul Mullen of 6 March 2019, and from Dr Rodger Shanahan of 18 March 2019.

4. [16]

   Oral evidence was called from Mr Marshall, Dr Spencer, Dr Eagle, and Dr Ellis.

5. [17]

   What follows is a discussion of the most significant parts of the further evidence in support of the State’s application, provided to the Court for the hearing on 26 and 27 March 2019, and relevant to those matters to which the Court must have regard, as mandated by s 39(3) of the Act.

The Documentary Evidence

1. [18]

   Some background is necessary to recent criminal conduct by the defendant, including referring to some matters that were before N Adams J last year.

2. [19]

   When these proceedings were commenced in May 2018 the defendant was serving a sentence following his conviction for two offences, being intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and intimidating a police officer contrary to s 60 of the Crimes Act 1900 (NSW) (“the Crimes Act”). The former offence reflected the threat made by the defendant to his mother during a telephone call from the prison in which he was serving a sentence, to burn down her house and kill her. The latter offence occurred after the defendant’s release to parole when, en route to hospital for treatment, he threatened to “get your glocks and shoot you”, “fucking kill you all”, and “blow you all up cunts and rape your mothers and sisters […] in the name of Allah”, amongst other threats of very serious violence.

3. [20]

   The defendant was sentenced on 21 June 2017 for these offences and another related offence of using a carriage service to menace contrary to s 474.17(i) of the Criminal Code 1995 (Cth), to imprisonment for 12 months for the State offences, and (on appeal) a 2 year recognizance for the Federal offence.

4. [21]

   During the sentencing proceedings on 21 June 2017 the defendant made further threats, to blow up Holroyd Police Station and a particular police officer, and to blow up the City to Surf Fun Run, apparently in the name of the Caliphate. He said (in part),

5. [22]

   On being taken to Fairfield Police Station after the sentence of 12 months imprisonment was imposed upon him, the defendant both assaulted and threatened two police officers, and threatened to blow up the Police Station. He was charged that day with assaulting a police officer occasioning actual bodily harm contrary to s 60(2) of the Crimes Act, one count of assaulting a police officer contrary to s 60(1) of that Act, and two counts of intimidating a police officer under the same provision. Five days later the defendant was charged with threatening sabotage contrary to s 203C(1) of the Crimes Act, reflecting the threat made on 21 June 2017 to blow up Holroyd Police Station.

6. [23]

   The charges were finalised on 26 September 2018. The threaten sabotage charge was withdrawn, and the defendant entered pleas of guilty to, and was convicted of, assault police, assault police occasioning actual bodily harm, and two counts of intimidating police. An aggregate sentence of 2 years imprisonment was imposed upon him, to date from 20 April 2018, expiring on 19 April 2020, with a 12 month non-parole period expiring on 19 April 2019.

7. [24]

   Whilst in custody awaiting the finalisation of those charges, the defendant destroyed property in his cell at Lithgow Gaol, receiving a short term of imprisonment, now expired.

8. [25]

   The defendant continues to serve the sentence imposed upon him on 26 September 2018. In that the sentence is one of less than 3 years, ordinarily the defendant would be automatically admitted to parole on 19 April 2019 by operation of statute: s 158(1) of the Crimes (Administration of Sentences) Act 1999 (NSW).

9. [26]

   The defendant has, most recently, been issued with a Future Court Attendance Notice for common assault contrary to s 61 of the Crimes Act. He is to answer that charge on 9 May 2019 when the matter is listed before the Local Court. The plea to be entered, or the course that proceedings for that offence will take, is not presently known.

10. [27]

    A number of intelligence reports held by Corrective Services NSW and relating to the defendant were before the Court. Not all of them are touched upon here.

11. [28]

    A report of 26 April 2015 recorded the defendant’s violent and threatening behaviour in custody, namely “shoulder charg[ing]” his cell door and consequently injuring an officer. He was subsequently escorted to segregation, during which time he made threats of violence and sexual assault to officers and their relatives. He was particularly threatening towards the senior officer present at the time. The defendant also made threats towards Australia and the general Australian public who had to “‘pay’”.

12. [29]

    Analysis of the incident characterised the defendant as a “real and present danger”. He was described as an individual who does not have any consideration for the consequences of his actions. It was noted that although “most of his threatening behaviour is directed towards staff and persons of authority”, it was unknown whether his threats to harm staff and the wider community were real or not. Reference was made to unsubstantiated information that the defendant considered that his mission was to “‘destroy Australia’ from the inside”, and believed that “Muslims [are] superior”.

13. [30]

    The day after that report was made the defendant was interviewed by a Senior Assistant Superintendent at the Metropolitan Remand and Reception Centre (“MRRC”). The defendant was recorded as constituting a threat to national security, with a potential motivation in “religious extremism”. There was a record of unsubstantiated intelligence from at least May 2013 as to the extremist views the defendant held, including his stated belief that Muslims are superior to non-Muslims, his wish to carry out terrorist acts in Australia, and his belief that his mission is to destroy Australia. Report was made of the defendant’s threats to locate Corrections officers’ “personal addresses, sexually assault the families of staff members, and “chop off” an officers head.

14. [31]

    Although the defendant’s access to the resources necessary to commit the threatened acts was questioned, the connections of the defendant’s family to persons engaged with Middle Eastern Organised Crime was noted. The assessment concluded that although the defendant had not physically hurt staff, his impulsive behaviour was concerning. It was suggested that the defendant undertake the Individual Violent Offenders – Intervention Programme and the Extreme Threat Inmate Programme, when those programmes became available.

15. [32]

    Conduct of the nature outlined has been repeated from time to time.

16. [33]

    A more recent report prepared on 26 February 2019 indicated that the defendant’s “threatening and non-compliant behaviour” escalated when returning to Lithgow Correctional Centre, with the defendant threatening to rape and behead Corrections staff and the families of officers. He was also noted to have claimed to be a member of ISIS, although the truth of the claim was not verified. The report further noted the defendant’s drug use, suggesting that his mental state is often affected by it. Reference was also made to the defendant’s “substantial behavioural issues”, inclusive of his antisocial personality disorder and schizophrenia. The defendant was non-compliant with his prescribed medications at the time. Despite that, the analysis concluded with an assessment that, although the defendant may be capable of being violent, he had not demonstrated actual violence to staff. It was predicted that it was unlikely that he would attempt acts of violence as threatened.

17. [34]

    An initial Risk Assessment Report of the defendant was prepared in April 2018 by Naomi Prince, a Clinical and Forensic Psychologist. Ms Prince has since prepared a supplementary Risk Assessment Report dated 6 March 2019. The report was written with all relevant information to the matter, including the most recent psychiatric reports of Drs Eagle and Ellis.

18. [35]

    Ms Prince identified the defendant as a 29 year old male with both Australian and Pakistani citizenship. She characterised his criminal history as both violent and non-violent, pointing to “over 150 police events recorded…over 40 charges [and] various intelligence holdings”.

19. [36]

    She noted the defendant’s mistrust of authority figures, and his threats to behead, kill and rape officers and their relatives. Ms Prince also recorded the defendant’s “threat[s] to shoot police officers; organise a drive by shooting of a police station; petrol bomb police cars; blow up a police station; bomb public events and travel overseas to fight with his “‘Muslim brothers’”. She also commented on the defendant’s expressed support for Islamic terrorist organisations.

20. [37]

    Since the initial Risk Assessment Report, Ms Prince noted that the defendant had been subjected to an Interim Continuing Detention Order. Other changes are that he had been referred to a local Mental Health Nurse for review and prescriptions; he had agreed to participate in the EQUIPS Aggression programme, although he refused to consent to a referral to the Violent Offender Treatment Programme (“VOTP”). The defendant commenced, but did not complete, the EQUIPS Aggression programme. He was additionally referred to EQUIPS Addiction but did not complete this course, due to placement in segregation [for misconduct]. The defendant also requested opioid substitution therapy but was unable to commence it due to his segregation placement.

21. [38]

    The defendant has faced 13 new institutional charges and a number of segregation orders since the initial Risk Assessment Report. Corrective Services notes recorded since that time document the defendant’s continuing threats towards Corrections officers, his desire to renounce his Australian citizenship and return to Pakistan and join the Taliban, and his claim to have “‘urinated’” on the graves of Australian soldiers and posted photographs of his actions on social media sites. He was also recorded as having claimed to have raped the daughter of a particular Corrective Services officer in exchange for drugs.

22. [39]

    Further notes referred to by Ms Prince recorded that in December 2018, the defendant threatened to “‘do something to the boys in blue’” if he is given another custodial sentence. In January 2019, he continued to make abusive statements towards staff referring to them as “‘…white dog[s]’”, “‘rednecks’”, and “‘sluts’”, stating that he refused to “‘respect anyone’”. He was verbally abusive to female officers and female relatives of officers. He threatened to throw urine on staff, assault staff, and set fire to his cell. At the time of these later threats, the defendant had illicit buprenorphine in his system.

23. [40]

    When transferred to Long Bay Hospital on 18 January 2019, the defendant was noted to be paranoid, and believed that officers were “‘playing games’”. Ms Prince noted the defendant’s ongoing illicit use of buprenorphine, Xanax and other drugs in custody.

24. [41]

    In February 2019, the defendant again claimed to want to go to Supermax so he could associate with his terrorist “‘friends’”.

25. [42]

    Ms Prince opined that these events, since the time of the defendant’s initial assessment, are consistent with his “‘chronic aggressive and anti-authoritarian behaviour’”. Although Ms Prince was positive about the defendant’s willingness to participate in the EQUIPS programmes and the Proactive Integrated Support Model (“PRISM”) programme, she predicted that his institutional misconduct is a significant barrier to therapy of that nature.

26. [43]

    Ms Prince concluded that there is no change in risk from the initial assessment, with the defendant still posing a moderate to high risk for general offending; a high risk for violent offending; and a moderate to high risk for extremist violence, politically motivated violence, or terror activity. To successfully treat the defendant, the initial Risk Assessment Report recommended using VOTP, case coordination, and individualised intervention through the PRISM programme as the primary intervention pathway. Had the defendant been willing to undertake it, the VOTP would have functioned to assist him to “increase his insight into personal factors, develop strategies to mitigate such risks and challenge his acceptance of violence”.

27. [44]

    However, Ms Prince thought that programmes such as this, or the partially completed EQUIPS programmes, may be insufficient to treat the defendant, and function only as a preliminary step to treatment. Ms Prince emphasised that intervention is needed to assist the defendant to address his violence although she agreed with Drs Eagle and Ellis that his psychiatric stabilisation needs to be prioritised.

28. [45]

    Overall, Ms Prince suggested an integrated plan with “intensive intervention” delivered in a “non-linear manner”, focusing on behaviour management, supervised medication and regular drug testing. It would need to adjust according to the defendant’s resistance to treatment, behavioural misconduct, relapse into substance use, and cognitive and psychiatric functioning.

29. [46]

    Ms Prince noted the difficulty in estimating a timeline for intervention and treatment in custody of the defendant, due to the need to first address his psychiatric stability and abstinence from substances. She estimated that a period of six months would be sufficient, with ongoing monitoring of medication and substance use, as well as further assessment and motivational engagement. Ms Prince suggested that CD, the defendant’s wife, may function as a positive support network for the defendant to encourage engagement with treatment providers and community reintegration planning prior to release.

30. [47]

    If the defendant were to be subjected to an ESO, Ms Prince was pessimistic about his capacity to comply with conditions. She stated that his psychiatric stability should be paramount, and suggested potential hospitalisation to stabilise his mental health upon release. Ms Prince recommended a “coordinated approach” of intervention and supervision. She predicted that the defendant will likely resist persons with authority and become aggressive towards them, particularly if substance use continues.

31. [48]

    In the community, Ms Prince suggested a range of monitoring techniques including electronic monitoring, providing weekly schedule of movements, monitoring social contacts, mobile phone and online activity, and so on. She thought it likely that the defendant would have difficulty in adjusting to supervision of this nature, probably resisting it. Psychological intervention may be of benefit in this regard.

32. [49]

    To monitor the defendant’s religious and cultural views outside of custody, Ms Prince suggested arranging support and mentoring from a Muslim community or religious leader to assist the defendant to challenge his extremist views and to tie him to a local community.

33. [50]

    Mr Marshall is the Acting Director of the Extended Supervision Order team within Corrective Services New South Wales. He prepared a report dated 7 March 2019.

34. [51]

    Mr Marshall gave an overview of the defendant’s interactions with Community Corrections (“CC”). He noted that the defendant first became known to CC in 2009 via a Pre-Release Report that advised on case management strategies for him upon release on parole, namely an Anger Management Programme and individual counselling sessions, both of which the defendant ultimately failed to engage with.

35. [52]

    In May 2010, supervision of the defendant was transferred to the Community Compliance Group (“CCG”) and the defendant was seen to successfully comply with home visits and drug testing. He nevertheless remained abusive and aggressive towards the CCG staff.

36. [53]

    The defendant returned to custody in January 2011 for a driving offence, and was re-released on parole in January 2012. He did not offend for his remaining six weeks of parole.

37. [54]

    He was again released on parole in February 2014 after being incarcerated for domestic violence offences. The defendant secured suitable, but temporary, accommodation at a hostel, but he was returned to custody after 10 days of conditional liberty for breaching his parole conditions.

38. [55]

    In April 2016, after two years in custody, the defendant was again released on parole, with his mental health being noted as a concern. He was taken to Cumberland Hospital by police soon after his release after a psychotic outburst during an argument with a neighbour. The defendant was released from hospital without diagnosis or treatment. In August of that year the defendant tested positive for methamphetamines and his parole was revoked.

39. [56]

    Next, he served a sentence for damaging or destroying property, being released to parole in June 2017, to reside with his wife’s family and to report to a nearby CC office. The defendant breached both conditions. After only two days at liberty he was taken to Westmead Hospital due to a drug induced psychotic episode.

40. [57]

    Parole was again revoked and the defendant was returned to custody, where he was noted to have been “abusive, aggressive and threatening” to officers. Mr Marshall noted that the defendant has incurred 15 internal misconduct charges since this time and was categorised as a “National Security Inmate”.

41. [58]

    In making an assessment and proposing an intervention plan, Mr Marshall relied upon Ms Prince’s Risk Assessment Report and the reports of Drs Eagle and Ellis.

42. [59]

    Mr Marshall noted Ms Prince’s conclusion that the defendant’s risk of violence is high on the Violence Risk Scale. He also referred to the failure to address the defendant’s violent conduct in either custody or the community. He observed that the defendant continues to be “abusive, aggressive and…assaultive” towards officers in custody, noting “abusive tirades” against custodial staff. Mr Marshall regarded it as “essential” that the defendant participate in intervention that focusses on his risk of violence.

43. [60]

    Mr Marshall also considered that, once the defendant’s mental health has been stabilised, he should undergo drug rehabilitation.

44. [61]

    In the community, Mr Marshall noted that the defendant’s support networks are unknown. His relationship with his wife has been troubled in the past, and there is no information as to his connection to any family members.

45. [62]

    Mr Marshall suggested a proposed management plan if the defendant was to be subjected to a CDO. He thought transfer to and assessment within the Mental Health Screening Unit (“MHSU”) was indicated, recommending consideration be given to seeking a Forensic Community Treatment Order (“FCTO”) [obtained since his report was written]. Mr Marshall considered that, once the defendant’s mental health is stabilised, intervention for violent behaviour and substance use could commence.

46. [63]

    If subject to an ESO, Mr Marshall predicted that the effectiveness of any order would depend upon the stability of the defendant’s mental health, and compliance with medication and intervention. Mr Marshall suggested strategies to supervise the defendant under an ESO including weekly face-to-face interviews, liaising with a mental health provider, scheduled and unannounced home visits, covert and overt field surveillance, personal and environmental searches, weekly schedule of proposed movements, a list of proposed associates, drug testing, electronic monitoring, monitoring of online activity, property searches for relevant material or weapons, a prohibition on possessing, accessing, promoting or distributing extremist material, and monitoring of financial transactions.

47. [64]

    Once implemented, any risk management plan should be regularly reviewed.

48. [65]

    Mr Marshall also swore an affidavit of 25 March 2019, in which he considered the accommodation that might be available to the defendant upon release from prison. The defendant spoke with a Corrections officer on 22 March 2019 about this issue, telling the officer that he could live with his wife in suburban Sydney upon release.

49. [66]

    That same day, a Corrections officer spoke with the defendant’s wife, CD, who confirmed that the defendant can live with her. She is aware of his mental illness, and the need for him to take prescribed medication. CD asked the officer to ensure that, upon release, the defendant was prevented from contacting ex-prisoners, and was required to undertake a drug rehabilitation programme.

50. [67]

    Mr Marshall noted that, due to the defendant’s history of violence and threats of violence to Corrective Services staff and others, he was not suitable for accommodation through the Community Offender Support Programme.

51. [68]

    Dr Eagle was appointed by the Court to assess the defendant. Her report is Ex. 2.31. The doctor conducted a 3 hour face-to-face psychiatric assessment of him at the Long Bay Correctional Centre on 25 January 2019.

52. [69]

    Dr Eagle reported that, despite appearing well groomed, the defendant demonstrated increased levels of psychomotor agitation during the first hour of the interview, pacing, yelling and demonstrating hostility toward authority figures. His speech was loud and pressured and at times difficult to understand. Towards the end of the interview he was able to engage and cooperate with her assessment.

53. [70]

    Dr Eagle took a history from the defendant, recording that he grew up as one among eight children in a Muslim family. He was born in Pakistan, and migrated to Australia in 2000 at the age of 11, in the care of his older brothers. It was in his brothers’ care that he was physically abused as a child, on one occasion being hospitalised for a number of days.

54. [71]

    The defendant’s brothers were convicted of serious gang related sexual assaults in 2001 and 2002 and gaoled. Another brother died, an event witnessed by the defendant. His father returned to Australia, and in 2005 his mother and younger sibling migrated here.

55. [72]

    The defendant lived with his parents during his adolescence. He claimed to have been “good at school”, but got “involved with the wrong people” in high school. He told Dr Eagle that he was expelled in year 10 for selling ecstasy pills. At the time, he began using the drug himself. He subsequently worked in scaffolding, and telemarketing and telecommunications jobs.

56. [73]

    His father died in 2006.

57. [74]

    The defendant told the doctor that he began using alcohol and cannabis at about age 14 and used MDMA and cocaine from age 15 or 16. He said that he began buying heroin when he got out of custody in 2008 and became addicted. On returning to custody he began smoking buprenorphine, at times mixed with alprazolam.

58. [75]

    The defendant claimed not to have used heroin since 2011, taking up methamphetamines in 2013. Even after entering custody, the defendant continued to use the drug regularly. The defendant was still using methamphetamines, and buprenorphine, in gaol in 2018.

59. [76]

    The defendant emphasised the normality of violence in Pakistan, where he grew up. He said that he incites violence and makes violent threats because he “‘can’t control it’”. His mother and younger siblings have fallen victim to his violent nature in the past.

60. [77]

    Dr Eagle noted that the defendant was first criminally charged in 2003, at age 13, when he was involved in a “‘fight’” at a social gathering. Soon after he was charged with an assault upon his sister and later, his younger brother. His offences to date have spanned “assaults, use of offensive language, driving charges, intimidation, obtaining money by deception, robbery in company, stalk/intimidate, break and enter, assault law officer, possess mobile phone, destroy or damage property and use carriage service to menace / harass”.

61. [78]

    The doctor referred to the view of psychologist Dr Katie Seidler’s that the defendant experienced a “‘disturbed and dysfunctional’” childhood where he was “‘exposed to cultural trauma and violence, the pressures of migration and cultural dislocation and the risks associated with an ostensibly lawless, hedonistic and abusive home environment’”. A brother has been treated for a psychotic disorder.

62. [79]

    Using a Millon Clinical Multiaxial Inventory tool Dr Seidler had concluded that the defendant was “‘socially isolated’”, emotionally estranged, and suspicious of others. His behaviour could be “‘odd or eccentric”, and he might appear aloof to others. The defendant repeatedly told Dr Eagle that he believed that he was cursed with black magic and that authority figures and organisations, namely ASIO, are “‘involved with spirits’”. He referred to seeing an “‘illuminati’” doctor, receiving “‘intel from spirits’” and having auditory hallucinations.

63. [80]

    Dr Eagle thought that the defendant was aware of his psychosis and understood that certain experiences, such as hearing voices, were an effect of his mental illness, but he continued to assert that black magic was real. The doctor observed that manifestations of psychotic behaviour are reported across a range of documentary material, spanning 2013 to 2018, which note his belief that he is cursed with black magic and is being watched, and his feelings of hatred towards Australians (his desire to “‘behead’” them, to “‘blow up Australia’”, and to kill and “‘rape’” law officers and their relatives).

64. [81]

    Dr Eagle noted a number of past reports of apparent mental illness, principally from Corrective Services documents, summarising salient information.

65. [82]

    On 1 April 2014, Dr Dhansay assessed the defendant, who was “talking to himself, agitated and not slept for two days”. Psychiatrist Dr Simonelli, who assessed him three days later, reported “ongoing paranoid phenomena” and potential development of schizophrenia.

66. [83]

    The following month the defendant told Corrective Services officers that he was brought to Australia to “‘sell drugs and kill all non-Muslims’” because he believed Australians were doing the equivalent in Pakistan.

67. [84]

    Throughout 2015 and until the time of Dr Eagle’s assessment, the defendant made threats to law officers about killing them, blowing them up or beheading them, as well as killing and raping their families.

68. [85]

    In July 2015, he claimed that he would renounce his Australian citizenship and move overseas to fight for ISIS. At times, he has said that he was an “‘active member of ISIS’”. He was regarded by Corrective Services as “‘totally out of control’”.

69. [86]

    In March 2016, the defendant told Community Corrections that he had been radicalised in the past but now believed that extremist Muslims “‘take the religion to extremes’”, something he said he did not agree with.

70. [87]

    In May 2016 when on parole the defendant was briefly admitted to Cumberland Hospital after a psychotic episode during an argument with a neighbour. Psychosis was not, however, diagnosed, with his presentation attributed to substance abuse. On returning to Cumberland the following week, a diagnosis of schizophrenia was considered.

71. [88]

    In July 2016, the defendant said that he was being watched by people, from MI5 and MI6. He repeated those claims in August 2016, at a time when he was noted to be using methamphetamines. On entering custody the following month, he continued to claim he was under surveillance.

72. [89]

    In January 2017, the defendant told his treating psychologist that he had been cursed with “black magic” and could not sleep. He subsequently set fire to his mattress. In the same month, Dr Malik reviewed the defendant, who insisted that black magic “‘controls all technology’”. Aripiprazole was prescribed for “‘low grade paranoia’”.

73. [90]

    In May 2017, the defendant claimed to be “‘the next Curtis Chan’” [a reference to the police accountant, Mr Cheng, shot dead in a terrorist attack in Sydney in October 2015].

74. [91]

    On 17 June 2017, the defendant was released to parole but quickly admitted to hospital after suffering from a drug induced psychosis. He was returned to custody on 21 June 2017 after having been recorded declaring that the City to Surf “‘would be a good spot to blow up’”. He also claimed that he wanted to behead Australians for being “‘disbelievers”, “‘infidels’” and “‘dogs’”, and that he had “‘the biggest party’” to celebrate the recent terror attacks in [Melbourne].

75. [92]

    By June 2017, the defendant was regarded by staff at Corrective Services as “‘psychotic – delusional in the context of cultural beliefs’”, bearing antisocial traits and “‘manipulating the system’”. He was consequently admitted to a pod in the MHSU. However, forensic psychiatrist Dr Adams evaluated the defendant as having “overvalued ideas that were culturally appropriate”, rather than having psychotic traits. On that basis, he was discharged from the MHSU in August 2017. The discharge summary recorded a diagnosis of “substance induced psychosis and antisocial personality disorder”.

76. [93]

    On 26 August 2017 the defendant threatened police officers and claimed that he “‘[couldn’t] wait for them [terrorists] to blow up something in Australia’”; and that he was “‘going to do extra prays’” to ensure that it occurred. The basis for this was said to be revenge for how the “‘Australian Army, the putrid dogs kill [Muslims] overseas’”.

77. [94]

    On 31 August 2017, the defendant stated that “‘[his] risk of reoffending is high’”. He claimed not to be taking his medication and “‘using drugs every day in gaol’”. He was frequently non-compliant with medication.

78. [95]

    On 2 March 2018 the defendant recommenced treatment for schizophrenia, although remaining mentally unstable. He requested to be placed in SuperMax so he could “learn to become a terrorist”.

79. [96]

    In April 2018, the defendant was assessed as having low average cognitive ability on the Wechsler Abbreviated Scale of Intelligence. He refused to participate in a risk assessment at this time, and did not appear to be mentally well.

80. [97]

    In April 2018, the defendant was again prescribed anti-psychotic medications Aripiprazole and Olanzapine. (The defendant told Dr Eagle that he is still on these medications at present day; that they “stop the thoughts” but “make [him] tired”).

81. [98]

    At this time his wife CD asserted that he “‘needed hospital, not gaol, it doesn’t help him’”.

82. [99]

    In June 2018 the defendant was reviewed by Dr Simonelli, who reported that he was “‘adamant the psychotic symptoms are no longer there’”.

83. [100]

    In August 2018 the defendant refused his morning medications. A Health Problem Notification Form warned that the defendant was guarded, “acting suspicious; accusing people of doing things that [were] not being done; isolative and/or withdrawn behaviours; and appearing to be responding to person/s that no-one else can see”.

84. [101]

    On the basis of the frequent threats uttered by the defendant over time to “behead” and kill a number of law officers, “‘blow up’” Australia, and join ISIS, and his claims to an association with a National Security Interest inmate, Greg Ceissman, and would-be Syrian-fighter Osman Haouchar, the defendant was identified by Corrective Services as an “‘extreme threat inmate’” in October 2017.

85. [102]

    To some extent that history is reflected by the defendant’s institutional record, which notes that he has been placed into segregation on “at least 18 separation occasions”, often for several months at a time. He has also received 70 disciplinary charges in custody, from drug offences to assaults, to disobeying directions.

86. [103]

    The defendant proposed to Dr Eagle that he was willing to complete the VOTP [which he has formerly refused to participate in] and has applied for the PRISM programme while in custody. He has also completed EQUIPS aggression training and is interested in completing a drug rehabilitation programme. When asked about his future plans and goals, he reported to Dr Eagle that he would like to enter a “buprenorphine programme” upon release to address his substance abuse. He also wanted to see mental health consultants and perhaps take gabapentin to maintain his mood. He said that his intention was to work as a labourer upon release, believing that it would be “‘easy’” for him to gain employment with his experience and qualifications. He also wanted to live with his wife and avoid Islamic extremist associations.

87. [104]

    Dr Eagle noted that the defendant’s support mechanisms in the community included his wife, despite a complex history between them of domestic violence. However, she did not think the defendant was “particularly influenced” by his support networks.

88. [105]

    Having assessed the defendant and reviewed the voluminous documentary record, Dr Eagle concluded that it is likely that the defendant is schizophrenic, and has suffered from relapses of psychosis “characterised by bizarre persecutory delusions, referential beliefs and auditory hallucinations”. Dr Eagle also concluded that the defendant has a severe substance use disorder, spanning a variety of non-prescribed, prescribed, and illicit substances, both in and out of custody. The defendant’s mental illness is exacerbated by substance abuse.

89. [106]

    Dr Eagle expressed the opinion that the defendant’s mental illness has been “overlooked, minimised and untreated”. She regarded his illness as a driving force behind his “grievances, distorting the perception of events, impairing his judgment and reducing his levels of self-control”.

90. [107]

    Dr Eagle also noted the defendant’s “severe and prolonged childhood trauma”, with few to no prosocial role models, in an environment where violence was accepted, and in which he did not learn “any healthy psychological coping strategies”. She diagnosed an antisocial personality disorder manifesting as “a pervasive pattern of disregard for and violation of the right of others since 15 years old”, with its likely origins in his “traumatic, dysfunctional and fragmented childhood”. The defendant demonstrated “repeated offending behaviours; deceitfulness; impulsivity; aggressiveness; reckless disregard for the safety of others; consistent [ir]responsibility and lack of remorse”. Dr Eagle added that the defendant’s identified psychotic illness is accompanied by psychological vulnerabilities.

91. [108]

    As to the risk the defendant poses to others, noting the significant limitations of risk assessment tools in measuring the likelihood of acts of violent extremism, Dr Eagle concluded that the defendant does pose a high risk of committing such acts.

92. [109]

    The background to that assessment is the defendant’s traumatic childhood and dysfunctional upbringing; the severe mental illness that stops him from making a rational interpretation of certain circumstances; his preoccupation with violence, his lack of remorse, a pro-criminal attitude, and a disregard for the law.

93. [110]

    Relevant to the Terrorist Radicalisation Assessment Protocol 18 (“TRAP”) assessment tool, Dr Eagle noted a variety of relevant research in the field of mental illness and terrorism, some of which suggests that there is a greater prevalence of mental illness among lone actor terrorists than in the general population. Further, those suffering from mental illness are more likely to become lone attackers rather than join a terrorist group. Dr Eagle noted that “personal, social and political grievances increase susceptibility to extremist ideology and… justify violence”.

94. [111]

    Using the Violence Extremism Risk Assessment - Version 2 revised (“VERA”) assessment tool, Dr Eagle identified the defendant as having demonstrated numerous features associated with a high risk of violent extremism. These include:

    1. (1)

       The defendant’s beliefs, attitudes and ideology: including his “commitment to an ideology that justifies violence”, his “perceived grievances” as an individual and as a member of the Muslim faith, his dehumanisation of Australians as “‘dogs’”, his “rejection of democratic society and values”, his “anger, moral outrage and hatred in response to perceived injustices”, his hostility towards Australia and Australians and his “lack of empathy and understanding for those outside [his] own group”;

    2. (2)

       The defendant’s social context and intention: including the defendant’s “personal contact with violent extremists” in custody, his “expressed intention to commit acts of violence extremism”, his “expressed willingness…to die for [his beliefs]”, his “susceptibility to influence, control [and] indoctrination”;

    3. (3)

       The defendant’s history: including his “early exposure” to violence as a child and his previous violent criminal past; and

    4. (4)

       The defendant’s commitment and motivation: including his motivation driven by “criminal opportunism”, “group belonging”, “moral obligation [and] superiority” and “acquisition of status”.

95. [112]

    Other indications of risk highlighted by Dr Eagle include the defendant’s “Juvenile Justice System contact”, his “non-compliance with conditions or supervisions”, “violence in [his] family”, his “problematic upbringing”, “problems with school and work”, his “personality disorder” and “psychotic and schizophrenic disorder” and finally, his “substance use disorder”.

96. [113]

    Dr Eagle concluded that individuals will be at a significant risk if the defendant is released from custody without a risk management strategy. She noted, however, that traditional risk management such as monitoring will not be effective until the defendant’s mental illness and substance use issues are overcome.

97. [114]

    Dr Eagle opined that the defendant would need to engage in treatment and intervention for at least 1-2 years at a minimum and perhaps up to 5 years before his assessed level of risk of committing a serious terrorism offence can be reduced. She recommended that the defendant have interaction with a local mental health service, with a dedicated case manager and a multidisciplinary team with the requisite experience. Regular forensic psychiatric review would be necessary, together with the imposition of a Community Treatment Order (“CTO”). Dr Eagle thought the use of injectable antipsychotic medication was necessary, with supervision of daily oral medications.

98. [115]

    The doctor also recommended drug rehabilitation, but warned that the defendant may not be accepted into a programme due to his aggression issues. She suggested alternative group or individual outpatient interventions for his first year of abstinence, coupled with individual psychological therapy to address psychological vulnerabilities, the impact of his prior trauma and prosocial cognitions.

99. [116]

    Also important in the doctor’s opinion will be suitable stable accommodation, meaningful work, and participation in a PRISM programme to “’de-radicalis[e]’” the defendant through formal education.

100. [117]

     Without adequate supervision Dr Eagle concluded that the defendant will continue to make threats and be violent, and potentially resort to the use of weapons, to intimidate the Australian government or authority figures, justified by his ideology. She thought that the conditions of supervision proposed for any ESO “appear broad and comprehensive” although, noting the defendant’s history of non-compliance, alongside his “lack of appreciation and responsibility for his offending behaviour” as well as his “pervasive disregard for all rules and laws”, she was concerned about his ability to comply with them. She emphasised the need for support and treatment alongside supervision.

101. [118]

     Dr Eagle is hesitant as to the effectiveness of the proposed treatment, emphasising the need to control the defendant’s mental illness before any other intervention can be effective. Overall, she concluded that the defendant has an array of indicators that are associated with a high risk of violent extremism and warrants a “higher level of concern regarding the risk of engaging in an act of violent extremism”, particularly as a lone actor.

102. [119]

     Report of Dr Ellis

103. [120]

     Dr Ellis was the other of the two court-appointed psychiatrists to assess the defendant. His report is Ex 2.32. The doctor, who was provided with the same extensive documentary material as Dr Eagle, conducted an interview with the defendant on 5 February 2019, at Long Bay Correctional Centre, over a period of 3 hours. He made similar observations of the defendant as did Dr Eagle, and took a broadly consistent history from the defendant to that obtained by Dr Eagle, touching on family background, education, and drug and alcohol use.

104. [121]

     The defendant told Dr Ellis that he began experiencing hallucinations at 13 years of age. He relayed to Dr Ellis his belief in black magic, Djinns (or genies), and witchcraft. He thought he was under police surveillance. He denied any thought of suicide or self-harm, and gave no history of such thoughts.

105. [122]

     Dr Ellis recorded the defendant’s then current antipsychotic medication, namely Olanzapine and Aripiprazole, noting the defendant’s reported feeling of addiction to buprenorphine. The defendant told Dr Ellis that he “‘loves drugs’” and is reliant on buprenorphine to function, smoking it twice daily in custody.

106. [123]

     The doctor reviewed the defendant’s juvenile and adult criminal history, as well as his institutional charges. He noted that the defendant worked in the prison kitchen making chocolate. He has not undertaken any education or therapeutic programmes while in custody.

107. [124]

     Like Dr Eagle, Dr Ellis noted that the defendant was an “extreme threat inmate”, who continually threatens acts of terror and asserts his desire to join ISIS from within custody. He considered that the defendant “feels that white Caucasian wealthy people are treated more leniently in the legal system than poor Muslim people”. The defendant demonstrated an attitude of being “generally angry at the political situation in the world”, but denied knowing much about jihad or having any intention to commit a terrorist act. He claimed not to fit specifically on one side or the other of the Islam/West conflict, although he proclaimed his status as “‘best friends’” with members of the Haouchar and Darwiche families. He told Dr Ellis that he “wants to be left alone and to get help for his problem with drugs and black magic”.

108. [125]

     The defendant claimed that his comments about beheading individuals or sexually assaulting officers and their relatives are statements made on impulse, from anger and frustration. Dr Ellis thought that the defendant’s motivation for these statements is more likely to be psychotic persecutory beliefs rather than an intention to carry out real terrorist related violence. The doctor did, however, conclude that the defendant could act on these statements if targeted and influenced by a terrorist group or individual, or possibly when fuelled by anger, intoxication or untreated psychiatric symptoms.

109. [126]

     Despite his claim not to support terrorist ideology, the defendant told Dr Ellis that he wanted to go to Goulburn Supermax so that he could be with known terrorists. He said that if the government wanted to label him as a terrorist “he will act and behave like one”.

110. [127]

     In common with Dr Eagle, Dr Ellis diagnosed the defendant with schizophrenia, a substance use disorder, and an antisocial personality disorder. He thought it was possible that the defendant had a potential post-traumatic stress disorder following traumatic events of his childhood and adolescence, and suggested a future review.

111. [128]

     Noting the limitations of applying any one assessment tool to gauge the risk of an individual committing a serious terrorist offence, Dr Ellis used the Historical Clinical Risk Management-20 Version 3 structured professional judgment tool to assess historical factors, clinic factors and anticipated future risk management. Relevant features to the assessment were the defendant’s history of violence as a child and adolescent, persisting into adult life and evidenced by antisocial and criminal behaviour; his “poor record of employment”; history of substance abuse; diagnosis of antisocial personality disorder; attitudes supportive of violence; history of re-offending; and a diagnosis of mental illness coupled with trauma. These features indicate a high loading of historical risk factors associated with violence in the longer term. Dr Ellis noted that the risk posed by the defendant is higher than for the general prison population of violent offenders.

112. [129]

     Dr Ellis observed that the defendant had failed to demonstrate insight into his risk of violence and, despite accepting treatment, the doctor predicted that the defendant would cooperate if treatment was “on his terms only”. The defendant’s mental instability and lack of stress management techniques made for a high loading of modifiable risk factors, making his historical and unchangeable risk factors difficult to control.

113. [130]

     The defendant’s “longstanding distrust of authority” and failure to adjust to institutionalisation did not auger well for rehabilitation. His “limited personal supports”, contact with criminal families, and his conflict with authorities are all indicative of a high need for professional services and management plans to minimise, or eliminate, the risk of violence. Dr Ellis specifically warned of a risk of “serious” violence, due to the defendant’s history of brandishing weapons.

114. [131]

     Without treatment or supervision, Dr Ellis concluded that the defendant would present a risk for violent offending “that is statistically high in frequency with potential for serious consequence”. He highlighted the link between mental illness and terrorism, stating that there is a risk that, due to mental illness, a mentally ill individual may become a lone actor, join a terrorist group on whose behalf he would commit an act of violence, or may self-radicalise without being part of a group. The defendant has claimed that he has contact with violent extremists, although his claims have not to date been assessed as credible.

115. [132]

     Dr Ellis, similarly to Dr Eagle, used the TRAP tool, concluding that the defendant’s mental illness likely causes vulnerability to anxiety and paranoia, as does his and his family’s previous interactions with the justice system. Using the VERA assessment tool, Dr Ellis stated that the defendant has no specific ideological goal, but feels that “‘the system’” is “unfair”.

116. [133]

     Dr Ellis noted however, that the defendant has not researched or planned a terrorist attack; has no “fixation or pathological preoccupation” with Islam; no paramilitary training or access to funding sources; and shows no “strong identification with the warrior mentality” that other terrorists have displayed. He does not “frame his life by ideology, try to join terror groups or use virtual communities”, and nor does he display elements of tactical or creative thinking. Nevertheless, Dr Ellis opined that the defendant is “isolated and with unstable identity” and may want to align himself with a powerful group of status.

117. [134]

     Dr Ellis concluded that the defendant’s risk management in the community will be challenging, where he interacts “‘superficially’” and does not properly engage. Dr Ellis pointed out that psychosocial intervention may be rendered useless with the defendant’s active symptoms of delusions and hallucinations. Instead, Dr Ellis insisted on the need for the treatment of the defendant’s psychiatric symptoms to be paramount; pursued alongside the monitoring of his drug and alcohol use, and antisocial associations.

118. [135]

     Importantly, Dr Ellis posited that further incarceration under a CDO would not be recommended from a psychiatric perspective, without appropriate treatment and placement. He emphasised that prolonged incarceration may impact on vocational and diversional placement and community reintegration necessary to prevent recidivism. Rather, Dr Ellis recommended significant monitoring with an ESO, to manage the risk and ensure psychiatric intervention, alongside gaining employment and mental health treatment.

119. [136]

     Alternatively, if kept in custody, Dr Ellis recommended seeking a Community Treatment Order, with hospital treatment prior to release into the community.

120. [137]

     Accordingly, Dr Ellis recommended managing the defendant’s risk using an ESO with conditions similar to other violent offenders and ensuring that the defendant is psychologically stable before attempting to intervene in other ways.

121. [138]

     Dr Shanahan is a former Army officer with decades of active service behind him. Much of his experience has been in the Middle East, and the geo-politics of that region has been the focus of his formal studies. Dr Shanahan holds a PhD in Arabic and Islamic Studies, and a Masters Degree in Middle Eastern Studies and International Relations. His doctorate focused on the political development of the Shi’a in Lebanon. He has significant expertise in terrorism and political violence. He was comprehensively briefed with documentary material relating to the defendant.

122. [139]

     In his expert report of 8 March 2019 Dr Shanahan summarised the statements the defendant is recorded as having made in the past that express support for radical jihadist groups known to be terrorist organisations. Many of these statements were extracted by N Adams J in Dunn 2018, or have been referred to above. They include references to a stated intention to go overseas and fight for ISIS; and a claim that his mother had worked with the Taliban and he himself wished to return to Pakistan and join that group.

123. [140]

     Dr Shanahan also noted those threats that the defendant has made in the past to “behead” various individuals, including the then Prime Minister, police officers, and Corrections staff, observing that beheading is advocated by the so-called Islamic State as a means of engendering fear in its perceived enemies.

124. [141]

     The same is true of bombing campaigns, with Islamic State advocating the bombing of Western targets to the same effect. Dr Shanahan noted that the defendant has frequently threatened to bomb individuals, events, or institutions, such as the threat made to bomb a police station in June 2017.

125. [142]

     Other of the comments the defendant has made are consistent in Dr Shanahan’s view with a narrative of the West at war with the Islamic religion and peoples, and an expressed hatred of Australian soldiers. The defendant has, for example, made comments (in late 2018 and early 2019) in which he blamed soldiers for killing and raping Muslims, his claimed retaliation being to urinate and defecate on military graves.

126. [143]

     Dr Shanahan also concluded that some of the comments and threats that the defendant has made in recent times can be directly linked to terrorist incidents, such as the defendant’s expressed hope that Australians would be hit by a terrorist “like a truck or something going through people in Spain”, made days after an Islamic State terrorist incident of that nature occurred in Spain, leaving many people, including an Australian child, dead.

127. [144]

     Professor Mullen is a forensic psychiatrist with significant expertise in the assessment and management of risk from violent offenders internationally. He was given relevant documentation concerning the defendant, and asked by the State to provide an opinion as to the risk of the defendant committing a serious terrorism offence, having regard to his criminal history, mental health, and past support for Islamic terrorist ideology.

128. [145]

     As a general statement Professor Mullen observed that there is a clear association between major psychosis and increased rates of violent offending. Persons with schizophrenia, such as the defendant, are vulnerable to the influence of others. That increased risk is of particular practical significance in those who, like the defendant, have a prior history of violence and substance abuse.

129. [146]

     A criminal background is also a feature that points to an increased risk of future violence. Professor Mullen referred to the early commencement of the defendant’s criminal history, at age 13 years, with regular convictions thereafter, sometimes for offences committed when gaoled. The constancy and variety of criminal offending by the defendant is such as to place him at high risk of re-offending. As to the question of the risk of committing a terrorist related offence, Professor Mullen observed:

130. [147]

     Without major changes in the defendant’s circumstances, Professor Mullen is of the view that the defendant will return to high risk conduct of one sort or another. Whether that conduct might include carrying out threats of the sort he has regularly made in the past remains a possibility. Professor Mullen is of the view that the defendant is likely to continue to make such threats, although effective management of his schizophrenia could reduce that prospect. He observed, however, that,

131. [148]

     Although nothing in the evidence suggested to Professor Mullen that the defendant had ever planned or seriously set out on a path to commit a terrorist outrage, he did observe that, if the defendant attracted the attention of terrorist sympathisers, he could be led to commit a crime of that nature. Indeed, that scenario posed the greatest risk in the Professor’s opinion.

132. [149]

     He thought it important that the defendant’s schizophrenia be treated, and an assessment made of the defendant for possible brain damage.

133. [150]

     Dr Spencer swore an affidavit on 25 March 2019. A psychiatrist, Dr Spencer is the Clinical Director of Custodial Mental Health Service and Programmes, Justice Health and Forensic Mental Health Network. She is responsible for the assessment and management of prisoners held at the MHSU within the MRRC, and at the Special Purpose Centre, Long Bay Complex, and Goulburn Correctional Centre, and for the supervision of professional staff.

134. [151]

     Dr Spencer both reviewed the defendant’s Justice Health and Forensic Mental Health Network file, and personally saw, and assessed, the defendant on 6, 7, and 19 March 2019. She also had access to the reports of Drs Eagle and Ellis.

135. [152]

     Dr Spencer observed that the defendant had “a multidisciplinary assessment” of his mental state at the MHSU in mid-2017, and was not found to be suffering from any major mental illness. He was discharged without treatment recommendations. His mental state thereafter deteriorated and he was referred, although not admitted, to the MHSU in March 2018 by Dr Gordon Elliott, a consultant forensic psychiatrist. He was prescribed antipsychotics and his condition improved.

136. [153]

     On 24 April 2018 Dr Calum Smith, consultant forensic psychiatrist, suggested a diagnosis of schizophrenia. The defendant was not ultimately admitted to the MHSU as his condition had improved with treatment.

137. [154]

     Having seen the defendant for herself, Dr Spencer concluded that he suffers from schizophrenia, “characterised by periods in which he experiences persecutory delusional beliefs and perceptual abnormalities”. The position is, however, complicated by drug abuse and the defendant’s underlying antisocial personality disorder.

138. [155]

     The defendant was not, when seen by Dr Spencer, a mentally ill person within the meaning of s 14 of the Mental Health Act 2007 (NSW), and could not be treated as an involuntary patient under schedule. He agreed to voluntarily commence antipsychotic medication administered by depot injection monthly.

139. [156]

     An application was made to the Mental Health Review Tribunal (“MHRT”) for a FCTO, an order which the Tribunal granted on 14 March 2019, with a six months duration. The order permits Justice Health to treat the defendant in accordance with an approved treatment plan. This includes regular review by a psychiatrist and mental health nurse, fortnightly meetings with a case manager, urinalysis (at a maximum of one per month), and maintenance of antipsychotic medication delivered by injections.

140. [157]

     Should the defendant be released from prison, the FCTO would be varied to involve treatment through a local mental health team, as a Community Treatment Order.

The Evidence Given before the Court

1. [158]

   As earlier noted, the Court heard from four witnesses on 26 March 2017, being Doctors Spencer, Eagle, and Ellis, and Mr Marshall.

2. [159]

   In her oral evidence, supplementary to her affidavit of 25 March 2019, Dr Spencer confirmed that the defendant has been prescribed Aripiprazole and Zyprexa, the former by depot injection monthly, and the latter orally each day. He also took Olanzapine nightly. Although the defendant was worried about a side effect of weight gain, he accepted that the medication regime was beneficial to him.

3. [160]

   He now had some capacity to recognise that some of his past beliefs were not based in reality, although it appeared that he maintained his belief in some of his previous thoughts, such as his belief in Djinns and having been the subject of “black magic”. He is not at present forming new delusions.

4. [161]

   The doctor noted that schizophrenia is a chronic condition where symptoms can improve, but also worsen, particularly at times of stress. The defendant could experience symptoms of schizophrenia in the future, including experiencing delusions and hallucinations. If that occurred when the defendant was in custody he would be seen by a psychiatrist and consideration would be given to transferring him to the MHSU or Long Bay Hospital.

5. [162]

   Further, the defendant had had a long-term addiction to the opioid substitute buprenorphine and, whilst he had not had access to it in the week or so prior to him seeing Dr Spencer, it was possible he would resume its use when or if it became available. Although Dr Spencer observed that it was not ideal that the defendant was using or would use an illicit drug, it was not one that would have an adverse impact on the psychosis from which he suffers. The general effect of buprenorphine is calming.

6. [163]

   Unlike buprenorphine, methylamphetamine or “ice” does have an adverse impact on psychosis and, if the defendant returned to his abuse of that substance, he could relapse into psychosis, although the intensity of any psychotic episode may be lessened because of the depot medication.

7. [164]

   Dr Spencer thought that it was possible the defendant could relapse into illicit drug use in the community. She also regarded him as vulnerable to the influence of others although, she observed, the defendant’s wife, as a person who did not herself use drugs and did not support the defendant’s use of them, seemed to be a positive influence on the defendant. She would, however, benefit from “psychoeducation” to help her to support the defendant. Dr Spencer thought that CD could describe symptoms her husband displayed, and could recognise that such symptoms were abnormal and of concern.

8. [165]

   Although Dr Spencer did not regard the defendant as presently a mentally ill person for the purposes of s 14 of the Mental Health Act he is someone who would benefit from a FCTO, with the present plan in place and, subject to renewal, expiring in September 2019. Under the plan the defendant is obliged to submit to urinalysis up to once monthly, and blood tests bi-annually. The former monitors drug use and the latter general health. If released to the community it is anticipated that an application would be made to the MHRT for the FCTO to be varied to a CTO, compliance with which would be monitored by a community mental health team.

9. [166]

   Any failures to observe the requirements of a CTO would be dealt with initially by way of oral, and then written, warning. After that, the defendant would be taken to hospital for an assessment of his mental status, with the potential for admission as an involuntary patient, or administration of medication by injection if that were not warranted, and return to the community.

10. [167]

    In the community, he would be expected to have regular contact with the community mental health nurse. If he was abstinent from illicit drug use, and maintained his medication regime, Dr Spencer expected the defendant’s mental health to remain stable.

11. [168]

    Mr Marshall gave oral evidence supplementary to his affidavit of 25 March 2019. He told the Court that, on 25 March 2019, two officers from his Team attended the address at which it is proposed the defendant reside if released into the community, to ascertain its suitability. The accommodation is with the defendant’s wife, CD, and it was assessed as suitable by the officers.

12. [169]

    Dr Eagle regarded it as reassuring that assertive psychiatric treatment of the defendant had commenced since the time of her consultation with him. However, she observed that the treatment was only at a very early stage, with only one depot injection to date [as at 26 March 2019], and the defendant’s mental state may fluctuate. She considered a further period of treatment and observation necessary before the stability or otherwise of his condition could be better known.

13. [170]

    The doctor regarded the defendant’s insight as continuing to be impaired, with some continuing belief in former delusions, assuming that the delusions, which had been recorded over at least five years in custody, were not “persistent attenuated beliefs”. She thought that there remained a risk that the defendant remains unwell and susceptible to deterioration. Any deterioration in his mental state could elevate risk.

14. [171]

    If released from custody, Dr Eagle observed that, although the defendant’s relationship with his wife was “complicated”, and CD was somewhat ambivalent in her interactions with him, overall the relationship was a “protective” factor. She was concerned, however, that CD had been in the past, and could be in the future, a victim of the defendant’s violence, particularly if she were put in a position where the defendant perceived her as monitoring or supervising him.

15. [172]

    She remained concerned that the defendant’s identification with extreme ideology presented as a risk. She said (at T39:20-35),

16. [173]

    Dr Eagle said that schizophrenia has a global impact on a sufferer’s thoughts and functioning and “it's going to make them less in control of their thinking and their behaviour”. For the defendant, it is only one of a number of features:

17. [174]

    In Dr Eagle’s opinion, those other features, separately from schizophrenia, will continue to operate to some degree, even when the defendant’s mental illness is treated. She continued in the view, expressed in her report, that the defendant would need at least one to two years to receive adequate treatment for his mental illness, and to engage in programmes directed to his violence and other behavioural issues. One of the greatest challenges Dr Eagle anticipated for the defendant and those involved with him was in addressing his drug use. Noting that the defendant had continued to use illicit drugs even within the highly contained environment of a gaol, Dr Eagle thought that it would be “extremely difficult” to address the defendant’s drug misuse in the community. She regarded this as

18. [175]

    If in the community, Dr Eagle thought it necessary that his integration would involve “more than simply a community treatment order” (T43:31), with assertive monitoring and treatment required, by an assertive outreach team, together with separate monitoring of drug abstinence.

19. [176]

    Dr Eagle thought there were real issues with the defendant’s ability to comply with any order, noting his history of non-compliance, and his stated history of and capacity to minimise symptoms to achieve a goal. This was particularly so if the defendant was unwell and using drugs. Despite that, she stated that a custodial environment was not typically an optimal environment for mentally ill persons. She said (at T48:45 – 49:06).

20. [177]

    However, Dr Eagle observed that mental illness is only one factor relevant to the risk posed by the defendant. Community based mental health care would address only the defendant’s mental illness.

21. [178]

    Like Dr Eagle, Dr Ellis saw it as a positive feature that the defendant had been able in recent times to engage with a clinician and accept treatment. He regarded the commencement of assertive psychiatric treatment as something likely to impact upon the risk the defendant posed, subject to it being very early in that process, and too early to say anything definitively on the subject. Noting the existence of a FCTO, and the prospect of its community equivalent, a CTO, being in operation when the defendant is released from custody, Dr Ellis thought that it would still be likely that, over a period, the defendant may require hospitalisation from time to time. His history of poor insight and non-compliance with medication indicates that possibility.

22. [179]

    The defendant’s history of threatening violence to others remained an indicator of risk. Dr Ellis observed (at T38:31 – 48),

23. [180]

    Dr Ellis thought it was very difficult to separate mental illness from intended ideological statements. He said (at T39:43 – 47),

24. [181]

    However, he concluded that schizophrenia was unlikely to be the only contributor to the expressions of intended violence that the defendant has made from time to time. As a chronic condition, it would require clinical treatment for an indefinite period. The severity of symptoms is likely to be something that fluctuates over time, dependent upon stress, substance use, and the like. The defendant’s recent willingness to engage with treatment is a positive step, and indicates at least some capacity to cooperate, and comply with supervisory conditions.

25. [182]

    Addressing substance misuse is also important according to Dr Ellis, with a necessity for drug use to be monitored through urinalysis, at a frequency greater than the once monthly maximum specified on the FCTO.

26. [183]

    In the community, Dr Ellis thought that the defendant will require considerable support. He said (at T47:05 – 10),

27. [184]

    Noting that, generally, a custodial environment was not conducive to good mental health, Dr Ellis thought a CDO of 18 months was excessive to the time required to set up community supports, which could probably be engaged in a lesser period, of about 3 months.

Consideration

1. [185]

   Section 34 of the Act provides the Court’s power to make a CDO:

2. [186]

   There is no real dispute in this matter that the evidence is capable of establishing that the defendant is a convicted NSW terrorism activity offender within the meaning of s 10 of the Act, for the purposes of s 34(1)(c)(iii), or that there is sufficient evidence upon which the Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence, meeting the test at s 34(1)(d).

3. [187]

   The same considerations apply to the issue of an ESO, pursuant to s 20 of the Act.

4. [188]

   The defendant has a long history – pre-dating his diagnosed schizophrenia – of expressing hatred towards persons in authority and a wish to do such persons harm. Threats towards police officers and others in authority have been recorded as having been made by the defendant for many years. The gravity of the threats, the breadth of the categories of persons and things that threats are directed to, and his claimed adherence to the tenets of extremist violent Islam, have all come later, but are also of long duration.

5. [189]

   His expressed ideology cannot be entirely explained by mental illness, much reducing the confidence with which it could be assumed that medical treatment will mitigate the defendant’s adherence to extremist views at a rate parallel to the reduction in symptoms of schizophrenia.

6. [190]

   When the defendant’s mental health history is juxtaposed with his criminal history for violence, his history of non-compliance with supervisory regimes, his anti-social personality disorder, and the illegal drug use that has characterised his day to day life since childhood, and even noting that the defendant has never carried out a violent terrorist crime, the risk he poses is very clear. The prospect, as Professor Mullen suggested, that the defendant may act alone, perhaps under the malign influence of another, is a real one.

7. [191]

   As both Dr Eagle and Dr Ellis concluded, although the defendant’s mental illness is likely a contributory factor to his violent and anti-social conduct, it is unlikely that mental illness explains the whole of his behaviour. Particularly given the priority of the defendant’s expressions of anti-Australian and anti-Western beliefs over the development of schizophrenia, the former is likely to endure treatment for the latter.

8. [192]

   Risk must be assessed bearing in mind s 35 of the Act (and the parallel s 21 relevant to an ESO), which provides:

9. [193]

   Although the likelihood of the risk posed by the defendant manifesting in an extremist act cannot be gauged, and may be low, it is extant and, if it manifested, the results would be catastrophic, either for an individual against whom an act of violence was committed, or to the nation as a whole, if the violence was large-scale. To use the language of the Act, the risk posed by the defendant is unacceptable.

10. [194]

    The focus of the Act is on protecting the community from acts of violence, and the Court must make the order or orders necessary to mitigate that risk, insofar as that is possible.

11. [195]

    I am satisfied that the orders necessary to protect the community involve both a detention order and a supervision order, the latter to follow the former.

12. [196]

    Although the defendant argues that only an ESO is indicated because of the recent changes in his situation following the commencement of more assertive treatment for his mental illness, little can be established by such short term improvement in the context of long years of aggression and violence, and failure to comply with any treatment regime. The defendant’s recent willingness to engage with treating clinicians is a very positive feature, but it is no more than a first step.

13. [197]

    If released now or in the very near future to supervision, even the sort of stringent supervision that an ESO entails, there could be little or no confidence that the defendant would comply with the terms of an order. A period of a few weeks of willing engagement with mental health treatment is insufficient to displace that concern.

14. [198]

    As all those with the expertise to comment have said, schizophrenia is an enduring illness which fluctuates in severity of symptoms over time, dependent upon many factors. Of most concern in the defendant’s situation is his use of illicit drugs, and his frequent failures in the past to comply with medication prescribed to him. The former is particularly troubling. The defendant has never managed any period of abstinence from illicit drugs, beyond a week or two when supply ran short in custody. Whether he will remain drug free if at liberty in the community must be a matter of considerable doubt. If he is using illicit drugs, and particularly amphetamines, it is likely that his compliance with medical treatment will fall away, and his psychotic and violent behaviour regain prominence. The community will be endangered.

15. [199]

    The defendant needs to demonstrate a greater capacity to comply with treatment and drug abstinence, and greater stability of his mental state, before the safety of others can be risked by his presence in the community.

16. [200]

    I am conscious of the observations of both Dr Eagle and Dr Ellis that a custodial environment is not ordinarily conducive to optimal mental health, but two things need to be observed about that.

17. [201]

    Firstly, the defendant’s health is not the priority when considering imposing orders under the Act; the safety of the community is. Secondly, without some credible period of stability being demonstrated prior to release from custody, I am concerned that the defendant is at great risk of readily returning to his former dangerous, drug using, instability, in circumstances where he would not be contained.

18. [202]

    Weight must also be given to the opinions of those with expertise in risk management relevant to violent offenders. Both Ms Prince and Mr Marshall are of the view that steps must be taken to address the defendant’s tendency to resort to violence, and consider that he should undertake some of the programmes available to him in custody designed to address violent conduct, prior to release.

19. [203]

    Although there must be at least some doubt as to the efficacy of programmes such as the VOTP for an inmate with the defendant’s history and professed ideology, there may be a benefit in the defendant undertaking them, particularly if he does so from a platform of mental stability. The defendant told Dr Eagle he is willing to undertake relevant courses, including the VOTP, consent to which he had previously refused, and that willingness may signal a basis for useful engagement.

20. [204]

    Participation in the programmes cannot, at least, do harm.

21. [205]

    I have not overlooked the concerns expressed by Dr Ellis that detaining the defendant for more than a short period pending organisation of community based services could exacerbate his perception of being oppressed by a hostile western State, but that outcome seems likely no matter what order the Court makes. If the Court does anything other than dismiss the State’s claim, it is possible if not probable that the defendant will feel that he has been unjustly treated because of his religious beliefs. That may in turn feed into his professed extremist world views.

22. [206]

    However, to avoid that outcome is not a reason for doing nothing, and neither is it a justification for a minimalist approach to the State’s claim.

23. [207]

    All of the objective evidence is that the defendant subscribes to a violent, dangerous, and wholly repellent ideology, not entirely explained by mental illness, and perhaps, not at all. The risk he poses must be addressed insofar as that is possible whilst the defendant resides in Australia.

24. [208]

    The State asks the Court to detain the defendant for a period of 18 months; I am not persuaded that a period of that length is indicated. A period of 9 months should be adequate to enable the defendant’s schizophrenia to be treated and stabilised; to give the defendant sufficient time to make a solid beginning to addressing his problems with drug abuse; and to allow him to undertake appropriate courses in an attempt to modify his antisocial and violent behaviour. It strikes a balance between the need to protect the community, and the need to promote the defendant’s mental health, at least as a feature relevant to the steps necessary to protect the community.

25. [209]

    With a solid start made in custody to mitigating the symptoms of his illness, and to reforming his antisocial conduct, the defendant could be released to the supervision of an ESO, with at least some basis for hope that he will comply with its terms. An ESO, unlike a CTO, will be directed to more than simply assisting the defendant with medical treatment. It will give those supervising the defendant, and actively managing the risk he constitutes, the power to require him to participate in drug rehabilitation, engage with psychologists, undertake urinalysis, and the like, as well as the capacity to resort to the criminal law if the defendant does not comply with the conditions the order imposes upon him.

26. [210]

    In the Court’s conclusion, only that two step approach can hope to address the risk posed to others by the defendant.

When would a CDO commence?

1. [211]

   The State contends that, because of the IDO made by the Court on 19 June 2018, s 126(4) of the Crimes (Administration of Sentences) Act applies to him. Although the defendant disputes that interpretation, I am persuaded that it is correct.

2. [212]

   Section 126 regulates eligibility for release to parole of offenders serving a sentence of full-time detention. Section 126(4) provides,

3. [213]

   To understand the application of the provision it is necessary to turn to some of the definitional provisions, s 3 and s 4C of the Crimes (Administration of Sentences) Act. Section 3 defines a NSW post sentence inmate as an inmate of a kind referred to in s 4 (1)(c1), or s 4 (1)(c2).

4. [214]

   The relevant provision is s 4(1)(c2) of the Act, a warrant pursuant to s 49 of the Act having been issued by this Court. It provides:

5. [215]

   The application of s 126(4) has the effect of rendering the defendant ineligible for parole, because of the IDO which remains current against him. Any CDO would have the same effect.

6. [216]

   The defendant’s current term of imprisonment being one of less than three years, ordinarily he could expect to be released to parole on 19 April 2019 pursuant to s 158(1) of the Crimes (Administration of Sentences) Act. However, because the IDO made on 19 June 2018 by N Adams J is extant (until such time as it is revoked or a CDO is made) although without having actually come into operation, the defendant will serve the whole of the current sentence, and would not be released, subject to any IDO or CDO, until 19 April 2020.

7. [217]

   In making a CDO the Court is to observe s 40 of the Act, which provides:

8. [218]

   The order will commence at a time when the defendant continues to serve a term of imprisonment. It will not come into formal operation because of the operation of s 40(3), but its expiry date will remain unchanged.

9. [219]

   Nevertheless, the CDO will serve its purpose of detaining the defendant, as did the IDO, by rendering him ineligible for statutory parole until such time as the CDO expires.

10. [220]

    At the expiration of the CDO the defendant cease to be an inmate caught by s 4(1)(c2), and he will be eligible for release to statutory parole. Upon release, he will be subject to an ESO.

11. [221]

    In view of the gravity and likely endurance of the risk posed by the defendant, an ESO for the term sought by the State, being 3 years, is necessary. His rehabilitation from drug abuse, and the need for treatment for his mental illness, are both long-term requirements that, without supervision, the defendant may not attend to.

12. [222]

    The orders of the Court are:

    1. (1)

       Pursuant to s 34(1), s 39(1)(b) and s 40(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is subject to a continuing detention order for a period of nine months from today;

    2. (2)

       Pursuant to s 49(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) a warrant is issued for the committal of the defendant to a correctional centre for the duration of the continuing detention referred to in order (1);

    3. (3)

       Pursuant to s 20, s 25(1)(a), s 26, s 39(1)(a) and s 69(2) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is to be subject to an extended supervision order for a period of 3 years to commence at the expiry of the order for continuing detention;

    4. (4)

       Pursuant to s 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is directed to comply with the conditions set out in the attached “Extended Supervision Order Schedule of Conditions” for the period of the Extended Supervision Order.

    5. (5)

       Access to the Court’s file is only permitted to a non-party with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.