Attorney-General (Cth) v Amin (Preliminary)

1. [1]

   By Summons filed on 9 October 2023, the plaintiff Attorney-General of the Commonwealth of Australia seeks orders pursuant to s 105A.7A(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code) that the defendant, Nowroz Amin, be subject to an Extended Supervision Order (ESO) for 12 months under the conditions set out in the Schedule to the Summons.

2. [2]

   By way of interim relief, the Attorney-General seeks an order pursuant to s 105A.9A of the Criminal Code that Mr Amin be subject to an Interim Supervision Order (ISO) for a period of 28 days, imposing the same conditions as set out in the Schedule. Orders were also sought, unopposed, for the suppression of certain material.

3. [3]

   On 13 October 2023, on an urgent basis, I conducted a preliminary hearing to determine whether an ISO should be made, pursuant to s 105A.9A(2) of the Criminal Code. By the time of the hearing, the parties had reached consensus on all matters, and I made all interim orders sought by the plaintiff, without admission and without prejudice to the defendant’s opposition to the making of an ESO. I am grateful to Mr Lenehan SC who appeared on behalf of the Attorney-General, and Mr Wilson SC who appeared for Mr Amin for the manner in which they conducted these proceedings, given the short timeframe in which the matter was prepared.

Background

1. [4]

   On 15 April 2021, the defendant pleaded guilty to committing acts in preparation for, or planning, terrorist acts contrary to s 101.6(1) of the Criminal Code (the preparation offence) and an attempt to import Tier 1 goods, comprising material which advocated the doing of a terrorist act, being reckless as to whether the goods were Tier 1 goods and without approval, contrary to s 233BAA(5) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code. On 11 October 2021, the defendant was sentenced by Garling J for these offences to a term of imprisonment of 5 years and 4 months, which was backdated to 16 June 2018: see R v Amin [2021] NSWSC 1267. Mr Amin was scheduled for release on 15 October 2023.

2. [5]

   The Attorney-General provided a lengthy Statement of Facts concerning the index offending. In summary, the acts which constituted the preparation offence included that between 26 May 2015 and 7 February 2016, the defendant:

   1. (1)

      communicated with two residents of Bangladesh about his plans to travel to Bangladesh, in which he discussed his extremist ideology and resourced materials such as the “Anarchists Cookbook” and “Islamic State 2015”;

   2. (2)

      sought instructions and guidance on how to make explosive devices for the purpose of carrying out a terrorist attack in Australia, Bangladesh or both;

   3. (3)

      accessed a file on one of his devices which was titled “how to make a cocktail bomb”;

   4. (4)

      communicated about a plan for others to carry out a terrorist attack in Bangladesh, and the equipment, money and training that these persons would require;

   5. (5)

      transferred money to his wife who lived in Bangladesh;

   6. (6)

      attempted to travel to Bangladesh on 7 February 2016; and

   7. (7)

      accessed electronic material which broadly supported or provided instructions about the doing of a terrorist act and generally advocated violence.

3. [6]

   When the defendant was intercepted attempting to travel to Bangladesh on 7 February 2016, he was found with multiple electronic storage devices containing at least 25 publications and other material which broadly supported or provided instructions on how to carry out a terrorist act, or generally advocated violence. He also had camouflage pants and combat boots. He was not permitted to travel.

4. [7]

   On 22 February 2016, Mr Amin’s Australian passport was cancelled.

5. [8]

   Following his attempt to travel to Bangladesh, the defendant continued to have contact with extremists and access extremist material. He used encrypted messaging apps to share material containing extremist ideology and instructions on how to make explosive devices.

6. [9]

   A search warrant of Mr Amin’s home was executed on 8 February 2016. Police found items which included two mobile phones, a computer and external hard drive, a camouflage army issued backpack, a rifle bullet and binoculars. A further search warrant was executed at Mr Amin’s home on 16 June 2018. More electronic devices were seized, as were various handwritten documents by Mr Amin which contained notes pertaining to extremist Islamic religious justifications.

7. [10]

   Mr Amin was arrested and taken into custody on 16 June 2018. He continued to communicate with various people both in and outside of custody who had convictions for terrorism-related or other violent offences, or had known links to terrorist organisations. He was twice refused parole, on 14 June 2022 and 12 June 2023.

8. [11]

   It was not until 9 October 2023 that the plaintiff filed the Summons seeking an ESO, six days before Mr Amin was scheduled to be released at the expiry of his sentence. An application to abridge time for service of the Summons was heard by Cavanagh J as Duty Judge on 9 October 2023. His Honour allowed the Summons to be filed, but was sceptical about the reasons for the lateness of the application: see Attorney-General (Cth) v Amin [2023] NSWSC 1210. By the time of the preliminary hearing before me, no full and satisfactory explanation for the delay in bringing the application had been provided to the court. I therefore ordered that the plaintiff file an affidavit setting out a full and satisfactory explanation by close of business on 17 October 2023.

Exhibits

1. [12]

   Before me were six exhibits as follows:-

   1. (1)

      the plaintiff’s Court Book, which included the affidavits that were read in the proceedings (exhibit 1); and

   2. (2)

      five volumes comprising the plaintiff’s tender bundle (exhibits 2 – 6).

2. [13]

   I have had regard to the contents of all of the exhibits.

Legislative framework

1. [14]

   Division 105A of the Criminal Code establishes the regime for the making of post-sentence orders such as an ESO. The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to a continuing detention order or an ESO: see s 105A.1.

2. [15]

   The AFP Minister (who is the plaintiff) may apply for an ISO if an application for an ESO has been made, and the court must hold a hearing to determine whether to make the ISO: ss 105A.9A(1)-(2). The court may make an ISO if the relevant requirements of s 105A.9A(4) are satisfied. They are as follows:

Consideration of the s 105A.9A(4) requirements

1. [16]

   There is no dispute that a proper application has been made in accordance with s 105A.9A(1). Cavanagh J abridged the time for service of the Summons so that this application could be heard. Mr Amin is a “terrorist offender” within the meaning of ss 105A.2 and 105A.3(1) because he was convicted of a serious Part 5.3 offence (being an offence under s 101.6(1) of the Criminal Code), and he was detained in custody and was serving a sentence of imprisonment for that offence (s 105A.3(1)) and he will be over 18 years of age when the sentence expires: ss 105A.3(1)(a)-(c).

2. [17]

   As Mr Amin’s sentence expired on 15 October 2023. It is not in dispute that this element is satisfied.

3. [18]

   In Attorney-General v Khan [2022] VSC 507, John Dixon J considered the construction of s 105A.9A(4)(c)-(d) at [18] – [21]:

4. [19]

   As his Honour said, “reasonable grounds for considering” can be likened to a belief that need not be certain, but it is a belief formed after considering the objective material before the court.

5. [20]

   As to the requirements for making an ESO, s 105A.7A(1) of the Criminal Code provides:

6. [21]

   I observe that the requisite application for an ESO has been made in the Summons, satisfying s 105A.7A(1)(a)(i).

7. [22]

   As to s 105A.7A(1)(b), the meaning of “unacceptable risk”, although not defined in the Criminal Code, should be given its every day meaning within its context and having regard to the objects of the Act. It is an evaluative test that requires the exercise of discretion: see Attorney General (Cth) v Pender [2022] NSWSC 1773 at [170] per N Adams J citing Beazley P at [58] and Basten JA at [82] in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. Whether a risk is unacceptable requires consideration of both the degree of likelihood of the risk eventuating, and the seriousness of the consequences if the risk does eventuate. Even if there is a low probability of the offender committing a terrorist act, the consequences of such an act may make the risk unacceptable: New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [29].

8. [23]

   It is for the plaintiff to satisfy the court of the matters at ss 105A.7A(1)(b) and (c): see ss 105A.7A(3). As the parties agreed on all conditions to be imposed, the real issue for determination is whether or not, after having regard to the matters in s 105A.6B, the Court on the hearing of the ESO application will be satisfied on the balance of probabilities that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence. I turn now to a consideration of the s 105A.6B matters.

9. [24]

   Dr Chelsey Dewson is a forensic psychologist who prepared a report dated 28 August 2023 which addressed the defendant’s risk of committing a serious Part 5.3 offence.

10. [25]

    Dr Dewson assessed Mr Amin’s overall risk of engaging in violent extremist behaviour as being “low-moderate”. In her opinion, Mr Amin’s most relevant risk factors are his grievances about the treatment of minorities in Australia and abroad, his emotional responses to those grievances and his contact with known extremists. Dr Dewson reported that in the past, Mr Amin developed a sense of religious obligation in which he legitimised his behaviour and plans to carry out some form of violence. Whilst in custody, Mr Amin has had his views challenged by another inmate. However, Dr Dewson noted that there was no way to objectively measure changes to Mr Amin’s ideology. Whilst Mr Amin has provided consistent accounts of his beliefs since being incarcerated and has not accessed any extremist material, Dr Dewson reported that Mr Amin has not accessed any deradicalisation program tailored to address his risk factors.

11. [26]

    As to possible future reoffending, Dr Dewson’s opinion is that the most likely scenario is that Mr Amin joins a terrorist organisation in the context of continued grievances which might escalate to a more serious offence of carrying out an act of violence. She believed that he was vulnerable to influence, and at risk of indoctrination and relapse.

12. [27]

    Dr Dewson considered that an ESO would encourage Mr Amin to access community based supports and provide protection to the community via supervision conditions. Dr Dewson supported the imposition of conditions that address Mr Amin’s specific risks-needs profile.

13. [28]

    Dr Seidler is a clinical and forensic psychologist who prepared a report on the defendant’s risk for the purposes of the sentencing proceedings. Dr Seidler administered the Violent Extremist Risk Assessment – 2R tool. In her opinion, Mr Amin would have been at a “high risk” of engaging in an act of violent extremism at the time of the offending. She reported that the most salient risk factors included close connections with people who held extremist views, exposure to extremist content, and a background of insecure identity and lack of connection with mainstream Australian culture that was superimposed on, and conflated with, a history of marginalisation, racism and disenfranchisement of Muslims in general.

14. [29]

    Dr Seidler assessed Mr Amin’s risk as having reduced since his incarceration, to the “moderate-high” range. Dr Seidler considered that this was because Mr Amin reconsidered his personal ideology, and distanced himself from previous contacts and content. However in her view, many of Mr Amin’s risks remained and further risk reduction would be contingent on continued reinforcement of the change in ideology and the bolstering of protective influences surrounding him. I observe that Dr Seidler’s views largely aligned with those of Dr Dewson.

15. [30]

    Dr Cruickshank, forensic psychologist, prepared a report for Corrective Services. She reported that Mr Amin presented as having rejected his former beliefs which were supportive of violent extremist ideology. However, in her view, he maintained some beliefs and attitudes which might be amenable to intervention to further reduce risk. Dr Cruickshank provided a range of recommendations that included referring Mr Amin to the PRISM deradicalisation program, developing his personal identity and sense of belonging, increasing his understanding of how his life experience and interaction with peers influenced his decision to offend, continued engagement with appropriate religious mentors, developing prosocial hobbies and interests and support with education and vocational training.

16. [31]

    Corrective Services prepared two pre-release reports in February 2022 and February 2023 which made recommendations with respect to the defendant’s eligibility for release to parole. Both reports recommended that he not be released to parole, primarily because of his refusal to participate in the PRISM program, which is a voluntary case management service for people identified as promoting or being at risk of radicalisation or violent extremism. In the event that Mr Amin were to be released on parole, the reports made recommendations which include community supervision and support to access services specific to his risk factors.

17. [32]

    The defendant has participated in some criminogenic programs such as the CONNECT and EQUIPS programs, but he has not participated in any specific deradicalisation programs. He declined on at least four occasions to participate in the PRISM program. He has said that he does not have any current plans to engage in a deradicalisation program in the community, but that he would seek support from his parents and Imams.

18. [33]

    Mr Amin has neither been previously released to parole nor been subject to any post-sentence order.

19. [34]

    Apart from the instant offending, the defendant has no criminal history.

20. [35]

    In his remarks on sentence, Garling J found that the objective seriousness of the offending was below the mid-range because Mr Amin had not engaged in a path of violence in any meaningful way. His Honour found that Mr Amin had a “moderate” risk of reoffending, but that he had reasonable prospects of rehabilitation. He accepted that Mr Amin had renounced his extremist ideology.

21. [36]

    Mr Amin is not subject to any equivalent order in a State or Territory.

22. [37]

    DS Nicolson swore an affidavit dated 6 October 2023 that was read in the proceedings by the plaintiff. The affidavit addresses factors relevant to the defendant’s risk of committing a serious Part 5.3 offence, including the ability of law enforcement to manage and mitigate his risk. Risks identified include Mr Amin’s online presence, informal training in extremist ideology and weapons creation, his lack of participation in any deradicalisation programs and his continued contact with known extremists after he entered custody.

23. [38]

    Ms Kirkwood’s affidavit affirmed on 5 October 2023 was also read in the proceedings by the plaintiff. Ms Kirkwood is a High Risk Offender Applications and Operative Governance Officer at Community Corrections. She provides reasons and justification for the inclusion of some of the proposed conditions.

24. [39]

    Taking all of these matters into consideration, bearing in mind the object of the Division is to protect the community from serious Part 5.3 offences, I am satisfied that there are reasonable grounds for considering that an ESO will be made in relation to the defendant pursuant to s 105A.7A of the Criminal Code.

25. [40]

    The parties agreed on all conditions to be imposed. I observe that I am independently satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on Mr Amin is reasonably necessary, appropriate and adapted for the purposes of protecting the community from the unacceptable risk of the defendant committing a serious Part 5.3 offence. This also satisfies s 105A.7A(1)(c).

Conclusion and orders

1. [41]

   I made the following orders on 13 October 2023:

   1. (1)

      Orders 9 to 14 of the orders made by the Court on 9 October 2023 be vacated.

   2. (2)

      No access to the Court’s file in this proceeding be granted to a non-party without the leave of a Judge of the Court, and without prior notice having been given to the parties so as to allow them the opportunity to be heard in respect of the non-party’s application for access.

   3. (3)

      On the grounds specified in ss 8(1)(b) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), subject to orders 4 and 6, there be no disclosure, by publication or otherwise, of the following information connected with this proceeding:

   4. (4)

      Order 3 does not prevent the disclosure of the information in Orders 3(a) to 3(d) to and between the following people for the purposes of these proceedings:

   5. (5)

      The Court shall be closed when there is to be disclosure of information which reveals or tends to reveal the matters referred to in Orders 3(a) to 3(d). The only people permitted to be present when the Court is closed pursuant to Order 5 are those people referred to in Order 4.

   6. (6)

      Order 3 does not prevent the disclosure of the information in Order 3(e) to and between the following people for the purposes of these proceedings:

   7. (7)

      The Court shall be closed when there is to be disclosure of information which reveals or tends to reveal the information referred to in Order 3(e) The only people permitted to be present when the Court is closed pursuant to Order 7 are those people referred to in Order 6.

   8. (8)

      These Orders apply throughout the Commonwealth of Australia and until the earlier of 20 years from the date of this order, or further order.

   9. (1)

      Pursuant to s 105A.9A(4) of the Criminal Code the defendant is subject to an interim supervision order, on the conditions set out in Annexure A, commencing on 15 October 2023 for a period of 28 days.

   10. (2)

       The Court is satisfied of the matters mentioned in ss 105A.9A(4)(b)-(d) of the Criminal Code.

   11. (3)

       The interim supervision order at Annexure A relates to Nowroz Amin, the defendant.

   12. (4)

       The defendant’s lawyer may request a copy of this order.

   13. (5)

       I stand the matter over to the High Risk Offender’s List on 19 October 2023.

   14. (6)

       By close of business on 17 October 2023, the plaintiff is to file an affidavit providing a full and satisfactory explanation for the delay with respect to the late commencement of these proceedings.

   15. (7)

       Pursuant to s 105A.6(3) of the Criminal Code (Cth) the court appoints Dr Michael R Davis to conduct an assessment of the risk of the defendant committing a serious Part 5.3 offence and provide a report of the assessment to the Court, the plaintiff and the defendant by 22 November 2023.

   16. (8)

       I note the joint position of the parties is that agreed condition 2.5 is a modified version of condition (h) in s 105A.7B which, by agreement intentionally does not include the second aspect “and comply with that schedule”. Its purpose is solely for case management and to assist the defendant with planning. It does not amount to a breach if the defendant does not adhere to the weekly plan. It may prompt questions that he will then need to answer and his whereabouts at all times will be monitored and recorded by the electronic monitoring.

   17. (9)

       Liberty to apply.