State of New South Wales v Mustapha

1. [1]

   By summons filed on 7 September 2021 the State of NSW (“the plaintiff”) sought orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) in relation to Mr Mejid Mustapha (“the defendant”).

2. [2]

   At a preliminary hearing the plaintiff sought orders by way of interim relief pursuant to ss 24(5) and 38(5) of the Act:

3. [3]

   The plaintiff also sought by way of interim relief an order pursuant to ss 41 and 42(1) of the Act that the defendant be subject to an Interim Detention Order (“IDO”) for a period of 28 days, and an order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the IDO.

4. [4]

   In the alternative, by way of interim relief the plaintiff sought orders:

5. [5]

   The plaintiff also sought an order restricting access to the court file (summons at [10]).

6. [6]

   The defendant is currently serving an aggregate sentence of 40 months’ imprisonment for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 (“the index offences”). His head sentence is due to expire on 7 December 2021.

7. [7]

   The defendant was first eligible for parole, after completing a separate sentence, on 21 October 2020. He was initially refused release to parole by the State Parole Authority (“SPA”) on 21 August 2020 on the basis he posed an unacceptable risk to community safety, by reference to a finding that the defendant’s index offending and instances of behaviour in custody demonstrated that he held “violent extremism ideology”. The decision to refuse release was confirmed on 1 December 2020.

8. [8]

   On 27 August 2021, the SPA again considered the defendant’s release to parole at a private meeting. The SPA determined that the defendant was a “terrorism related offender” under Pt 6 of Div 3A of the Crimes (Administration of Sentences) Act 1993 (NSW), and was not satisfied the defendant will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism. Accordingly, release to parole was refused, with the matter stood over to a date to be fixed for review hearing.

9. [9]

   After a hearing before this Court over two days, the Court made the following orders:

   1. (1)

      An order pursuant to ss 24(5) and 38(5) of the Act:

   2. (2)

      An order pursuant to ss 41 and 42(1) of the Act that the defendant be subject to an IDO for a period of 28 days commencing from 7 December 2021.

   3. (3)

      An order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the IDO referred to at order 2 above.

   4. (4)

      An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only by 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.

10. [10]

    These are the reasons for the making of those orders.

Evidence before the Court

1. [11]

   Mr P McGuire SC with Ms S McGee and Ms C Melis appeared for the plaintiff and relied upon the following evidence in support of the applications made in the preliminary hearing:

   1. (1)

      Affidavit of Rebecca Iacono affirmed 6 September 2021 together with a three volume Exhibit RI-1. Exhibit RI-1 contained key documents relied upon by the plaintiff and obtained by the plaintiff pursuant to Pt 5 of the Act (including audio-visual materials contained on the USB (Tabs 90-91 and 104). Exhibit RI-1 also contained the following reports:

   2. (2)

      Affidavit of Sarah Malaeb affirmed 29 June 2021.

   3. (3)

      Affidavit of Andrew Tayler affirmed 26 May 2021.

   4. (4)

      Affidavit of Troy Brien sworn 28 June 2021.

   5. (5)

      Second affidavit of Kristin Stoeckl affirmed 1 September 2021.

   6. (6)

      Affidavit of Jimmy Wang sworn 8 September 2021, together with exhibit JW-1.

2. [12]

   A number of affidavits filed by the plaintiff were not relied upon in the preliminary hearing but rather there was produced to the Court a statement of Agreed Facts (“the Agreed Facts”) executed by the solicitors for each party. The Agreed Facts were for the purposes of the preliminary hearing only and it was further agreed, pursuant to s 191 of the Evidence Act 1995 (NSW), that the facts were alleged in the plaintiff’s supporting documentation. Those Agreed Facts were as follows:

   1. (1)

      On 6 April 2018, in the course of the arrest of the defendant, police seized from the defendant a mobile phone ("iPhone"), which belonged to the defendant.

   2. (2)

      On 9 April 2018, Detective Senior Constable Brett McCormack undertook a Cellebrite extraction examination of that iPhone. Some of the photos and videos downloaded from the iPhone and produced in the extraction report are located in Exhibit RI-1 Vol 2 behind Tabs 91 and 94.

   3. (3)

      On 4 September 2019, Senior Constable Amber Hart accessed the iPhone and took photographs of the iPhone. Those photos are located in Exhibit RI-1 Vol 2 Tab 95.

   4. (4)

      On 7 August 2018, during the course of the arrest of the defendant, police seized from the defendant a mobile phone ("Nokia"), which belonged to the defendant.

   5. (5)

      On 8 August 2018, Senior Constable Ghouse Mohammad obtained a Cellebrite extraction examination report of the Nokia. Two audio files titled 'NasheedRingtonel' and 'Lana-AI-Murhafaat' identified in the Cellebrite extraction report were downloaded from the Nokia, translations of which were located in Exhibit RI-1 Vol 2 Tabs 92 and 93.

   6. (6)

      On 10 August 2018, during the execution of a search warrant by police where the defendant had been residing at the time of his arrest on 7 August 2018, police seized from the loungeroom a Toshiba hard drive (“the Toshiba hard drive”).

   7. (7)

      On 1 November 2018, the Toshiba hard drive was the subject of a digital preview examination by Detective Senior Constable Stephen King. The results of the investigator's examination and the examination of other materials seized during the search warrant are recorded in the investigator's note attached and marked “A”.

   8. (8)

      Between at least 29 November 2017 and 9 December 2017, the defendant appears to have operated an Instagram account with the username "abu_blax".

   9. (9)

      Between at least 26 July 2018 and 5 August 2018, the defendant appears to have operated an Instagram account with the username "abu_blacks".

   10. (10)

       Between at least 29 July 2018 and 7 August 2018, the defendant appears to have operated a Facebook account with the username "Abu Blacks".

   11. (11)

       The social media materials located at Tabs 90, 91, 96 and 97 of Exhibit RI-1 were downloaded or otherwise captured from the Facebook and Instagram accounts which appear to have been operated by the defendant.

3. [13]

   Annexure A provided as follows:

   1. (1)

      In August 2018, the defendant was arrested following a breach of bail and a search warrant was subsequently issued. During the search warrant a number of items were seized and reviewed.

   2. (2)

      On the 8 November 2018, the Toshiba Hard Drive, was reviewed and downloaded by DSC Stephen King from the Terrorism Investigations Squad.

   3. (3)

      The Toshiba Hard Drive contained a number of files.

   4. (4)

      The following note was made by the investigator in relation to the folder titled “3rd Nullifier Explained Shaykh by Mujahid Abu Malik”:

   5. (5)

      In relation to the folder titled “Anjem Choudry” the following note was made:

   6. (6)

      There was a number of files identified as relating to “Anwar al-Awlaki. The investigator made the following note:

   7. (7)

      A number of files of interest were located within the folder titled “Baqiyyah”, which was identified as Arabic for “remaining” and a term often associated with Islamic State. The following note was made:

   8. (8)

      The following folders were identified as containing Islamic sermons and teachings:

Preliminary Hearing

1. [14]

   The defendant contended that the plaintiff’s application failed to comply with ss 23(3)(b) and 37(4)(b) of the Act because the RAR relied upon by the plaintiff in support of the application did not meet the requirements of those provisions.

2. [15]

   Sections 23 and 37 of the Act set out some of the requirements for an application to be made for an IDO and ISO respectively. Subsections 37(4) and 23(3) are in the in essentially the same terms, and provide:

3. [16]

   The defendant contended, first, that the issue fell to be considered at the preliminary hearing and, secondly, the question of whether the existence of such a report under ss 23(3)(b) and 37(4)(b) of the Act was a jurisdictional fact.

4. [17]

   There was no dispute as to the first proposition which I accept.

5. [18]

   Interim relief, of the nature sought by the plaintiff, is predicated on the Court being satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (“ESO”) or continuing detention order (“CDO”) ss 24(5), 27, 38(5) and 41 of the Act. One of the matters that the Court must be satisfied of, when making final orders is that an application has been made in accordance with the relevant Parts (see ss 20(b) and 34(1)(b)), which in turn imports consideration of the need for an application to include documentation:

6. [19]

   Such an approach at preliminary hearing is consistent with other decisions under the Act. In State of NSW v Fayad (Preliminary) [2020] NSWSC 1681 (“Fayad”), Johnson J recorded his satisfaction that "a number of formal requirements under the Act have been met, inter alia, that “the application is supported by documentation addressing the matters referred to in s 23(3) of the Act, including a risk assessment report prepared by a registered psychologist which addresses the likelihood of the defendant committing a serious terrorism offence" at [85]; see also State of NSW v Naaman (No 2) [2018] NSWSC 1329 per Campbell J at [14]-[18] (“Naaman”).

7. [20]

   The second proposition advanced by the defendant was originally couched in terms of the jurisdiction of the Court. In further written submissions filed by the defendant on 16 November 2021, the defendant contended that the Court lacked power to entertain the application because of the failure to comply with ss 23(3)(b) and 37(4)(b) of the Act. That position was reached because of a recognition that jurisdiction is the authority to set aside and characteristically an exercise of jurisdiction is attended by an exercise of power. Upon that basis it was accepted that the jurisdiction to decide matters under the Act is conferred by the Act itself.

8. [21]

   Nonetheless, it was submitted that, as a matter of statutory construction:

9. [22]

   It was submitted that having regard to the text, its context and the purpose of the Act, the Court would be satisfied that those requirements comprise factual criteria the satisfaction of which enlivens the exercise of the statutory power to make an ESO or a CDO. If the criteria be not satisfied then a decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker: City of Enfield v Development Assessment Commission (2000)199 CLR 135; [2000] HCA 5 at [28]; Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43].

10. [23]

    The plaintiff did not dispute that the powers conferred by ss 20 and 34 of the Act were conditional upon the criteria identified in those provisions. Nor was it disputed that those criteria amount to jurisdictional facts.

11. [24]

    Given the conclusion that I will reach in relation to this question, it is strictly unnecessary to determine the nature of the legal requirements imposed by ss 20(b) and 34(1)(b). Nonetheless, there is merit in the contention advanced by the defendant. The Court must be satisfied of the existence of facts comprising the requirements set out in ss 23(3)(b) and 37(4)(b) of the Act before it may exercise powers they confer to make an ESO or CDO and thus must be satisfied of those facts before it can make interim orders. The powers to make an ESO under s 20 or a CDO under s 34 are conditional upon the existence of a number of acts, one of those being upon an application having been made in accordance with Pt 2 or Pt 3. The RAR is a report that relevantly arises for consideration under ss 23(3)(b) and 37(4)(b). Furthermore, the power to appoint experts can be exercised only after a preliminary hearing and is relevantly conditioned by the same test as the power to make an ISO or IDO upon the satisfaction of the Court that the matters alleged in the supporting documentation would, if proved, satisfy the making of a final order for either an ESO or CDO as the case may be.

12. [25]

    The defendant contended that the plaintiff had failed to comply with the requirements of the Act that the application referred to in ss 20(b) and 34(1)(b) include a report of, inter alia, a registered psychologist, that assesses the likelihood of the eligible offender committing a serious terrorism offence and that, for the purposes of ss 23(3)(b) and 37(4)(b) its application in respect of the defendant was consequently not made in accordance with Pts 2 and 3 of the Act. It was contended that the RAR, relied upon for the purposes of ss 20(b) and 34(1)(b), did not assess the likelihood of the eligible offender committing a serious terrorism offence for two reasons as follows:

    1. (1)

       there is no direct assessment of the likelihood of the defendant committing a serious terrorism offence; and

    2. (2)

       the opinions contained under the heading “Risk Scenarios” in the RAR did not amount to an expert assessment of the risk of the specific kind of serious terrorism offence that the defendant might commit.

13. [26]

    As to the first contention the defendant submitted:

    1. (1)

       As the plaintiff conceded, Ms Abreu’s RAR “[did] not directly assess the likelihood of the defendant committing a serious terrorism offence”. The plaintiff further conceded that there was no:

    2. (2)

       In oral argument, by reference to Ms Abreu’s “risk scenarios”, counsel for the plaintiff took a somewhat different position.

    3. (3)

       It is true that Ms Abreu reported on the result of her administration of an assessment tool, Violence Extremism Risk Assessment Version 2 Revised (“VERA-2R”). However, the requirement was not for a report as to the result of the administration of a tool or a test. The requirement is for:

    4. (4)

       “Assessment” is the act of evaluating or estimating, in this case the specific risk of committing a “serious terrorism offence” within the meaning of that expression in the Act. Assessment can be distinguished from “discussion” of an issue. Assessment requires a direct formulation of what the likelihood is. In the absence of that formulation, there is no assessment, “direct” or otherwise.

    5. (5)

       A report as to the outcome of the application of a “tool” which categorises the risk that the defendant will do something terrorism-related does not amount to an assessment of the risk of him committing a “serious terrorism offence” within the meaning of that expression in the Act. There is nothing in Ms Abreu’s report which suggested that the VERA-2R tool assessed the likelihood of the defendant committing an offence as defined in s 4:

    6. (6)

       If the Legislature had intended that, in considering an application under the Act, the Court would be assisted by a report which contained no assessment by the relevant expert but which reported as to the result of the application of a tool which assessed generally the offender’s degree of risk for engaging in terrorism generally or for engaging in conduct of the general nature of the types of offences which are “serious terrorism offences”, it would have said so. The fact that the Legislature has specified that the risk has to be as to the likelihood of committing at least one particular offence in a category of very specific offences, means that the failure to provide an assessment of that nature is fatal to the enlivenment of the power to make relevant orders under the Act.

14. [27]

    As to the second contention, Mr Buchanan SC, with whom Mr E Kerkyasharian appeared, submitted:

    1. (1)

       In the course of oral submissions on the afternoon of 12 November 2021, counsel for the Plaintiff accepted the proposition that that which is under the heading “Risk Scenarios” in the RAR amounts to an expert assessment of the risk of the specific kind of serious terrorism offence that the defendant might commit.

    2. (2)

       However, an analysis of the paragraphs under that heading revealed the following:

    3. (3)

       If this is the material upon which the plaintiff relied to establish that Ms Abreu’s RAR satisfied the requirements of ss 23(3)(b) and 37(4)(b) then, leaving aside the failure to identify any particular “serious terrorism offence” under the Act as being a subject offence, it clearly shows that Ms Abreu is unable to assess the defendant as being likely to commit an offence of the type comprising a “serious terrorism offence” under the Act.

15. [28]

    Ultimately, the defendant contended that the application by the plaintiff had not been made in accordance with Pts 2 and 3 of the Act and that, accordingly, the Court did not have power to make an order for the appointment of experts or final orders or interim orders.

16. [29]

    I will turn to particular aspects of the RAR momentarily but it may be noted at the outset that I accept the contention advanced by the plaintiff that the risk of the defendant engaging in “extremist violence offending, particularly politically motivated violence or terrorism activity” which is assessed in the RAR is inextricably linked to the likelihood of the defendant engaging in conduct which amounts to a serious terrorism offence.

17. [30]

    The risk of a person engaging in an act of violence extremism, politically motivated violence and terrorism is, therefore, the counterpart, if not directly equivalent to, the risk of that person engaging in a terrorist act or other offences that fall within Pt 5.3 of the Criminal Code, noting that, with respect to both a CDO and an ESO, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision (see ss 20(1)(d) and 34(1)(d) of the Act).

18. [31]

    It follows that any failure to make an assessment of risk expressed directly in terms of the statute via a serious terrorism offence does not necessarily mean that the assessment does not fall within the purview of ss 23(3)(b) and 37(4)(b) of the Act. It certainly does not follow that a failure to express an expert opinion in terms of the ultimate legal issue before the Court renders the report beyond the requirements of those provisions.

19. [32]

    As will be observed, the opinions expressed in the RAR deal with the risk profile of the defendant with identified risk scenarios to assess the likelihood of the defendant committing a serious terrorism offence. Furthermore, Ms Abreu utilises a structured professional judgement tool, VERA-2R, to make an assessment that the defendant was at a moderate to high risk of engaging in an act of violence extremism, politically motivated violence and/or terrorism. In doing so, the RAR assessed the relevant material risks for the purposes of ss 23(3)(b) and 37(4)(b) and despite focussing on risk, met, in my view, the requirements of the Act, under those provisions.

20. [33]

    It is sufficient for the purposes of providing the underpinning for these conclusions to refer to the relevant components of the RAR satisfying the requirements of ss 23(3)(b) and 37(4)(b) of the Act, although, as emphasised by the plaintiff, that assessment should properly be cumulative in nature.

21. [34]

    The assessment should properly commence by reference to the following broad considerations:

    1. (1)

       The report is prepared by a qualified registered psychologist, Ms Abreu.

    2. (2)

       The letter of instruction dated 31 May 2021 directed Ms Abreu to "prepare an expert report in the form of a Risk Assessment Report in relation to Mr Mustapha in anticipation of a potential application, pursuant to ss 23(3)(b) and 37(4)(b) of the Act”.

    3. (3)

       The letter of instruction included the definition of a "serious terrorism offence" at Attachment 3 and included reference to the offence provisions in Pt 5.3 of the Criminal Code which cover a broad spectrum of conduct.

    4. (4)

       Question 6 of the letter of instruction draw's Ms Abreu's attention to the relevant definitions found at Attachment 3.

    5. (5)

       Ms Abreu assessed the defendant's risk of violent re-offending as High (see executive summary and [86]).

    6. (6)

       Ms Abreu assessed the defendant's risk of engaging in an extremist act of violent, politically motivated violence and/or terrorism activity as within the Moderate-High range (see executive summary and [93]).

    7. (7)

       The last sentence of [94] which includes Ms Abreu's observation, in relation to a number of social media posts, "whilst a number of posts were identified as only religious, others were identified as aligning within a narrative of violent extremism".

    8. (8)

       Ms Abreu opined that the defendant’s presentation "suggests the presence of an ideology that justifies the use of violence, capacity to undertake violence, a number of underlying motivations and a verbalised intention to use violence", which the plaintiff submitted, when read in context of the preceding sentence, the reference to "violence" is in relation to "extreme acts of violence, politically motivated and/or terrorism activity" (see executive summary).

    9. (9)

       Ms Abreu's assessment that the defendant "appears to possess a number of underlying motivating factors which serve to increase his susceptibility to engage in violent extremism, politically motivated violence, or terrorism" (at [103]).

22. [35]

    Under the heading "Risk Scenarios", Ms Abreu referred to the Act and risk scenario considerations being limited to "the risk of engaging in acts of violent extremism, politically motivated violence and serious terrorism activity" (at [117]-[126]), including the assessment that:

    1. (1)

       should the defendant to continue to engage in behaviour, such as threats of violence within a religious/racial context, "it is reasonable to assume that others will perceive his behaviour as supporting, promoting or demonstrating willingness to engage in acts of violent extremism, politically motivated violence or terrorism activity" (at [118]);

    2. (2)

       as the defendant will "likely make threats within the violent extremism context, an act of violence will likely be viewed by authorities (and members of the public) through this lens" (at [120]);

    3. (3)

       the defendant's risk will "likely increase should he continue to attempt to establish and foster problematic connections online and offline, particularly given his susceptibility to influence and his needs associated with seeking purpose and meaning in life, identity formation and a search for status and recognition. In custody, continued placement, proximity, and associations with other offenders known to espouse extremist views may increase his engagement with extremist ideology and anti-government, anti-authority sentiment and further facilitate his development of an extremist peer network" (at [122]);

    4. (4)

       the defendant's "susceptibility to be further radicalised and/or risk of engagement in a violent extremism offence may increase should he continue to seek out connection with others; and continue to access and disseminate online material relevant within a violent extremism context. His involvement in providing Da'wah and the potential influence he may have over others seen as vulnerable, also remains an area of concern given his rigid and uncompromising views of Islam and how it should be practiced" (at [123]);

    5. (5)

       that the defendant appears with "minimal protective factors which would assist to mitigate his risk of further radicalisation and/or engagement in violent extremist activities" (at [124]); and

    6. (6)

       the defendant's "risk of engagement in acts of violent extremism, politically motivated violence or terrorism may increase with any further perceived grievances or injustices towards him, particularly should he view these to be religiously motivated. Overall, the vulnerabilities that the defendant displays may also indicate that he is at an increased risk and/or imminence of an act of extremist violence. This includes continued alignment or increased fixation with beliefs and attitudes that justify violence on the basis of religious matters, the verbalising of these beliefs, a continued perception of being mistreated by others due to his religion and/or race, the continued seeking out of extremist material (online and offline) and/or connections with individuals known to proselytise extremist views, engagement in illicit substance use to manage his emotional experiences and/or to self-medicate, a continued tumultuous family dynamic which remains unaddressed, notable increases in his threats of violence towards others; increased hostility and impulsive behaviours, an increase in his reactivity to perceived grievances, continued unreceptiveness to engage with support services to assist him to develop effective emotional regulation and risk mitigating skills” (at [125]).

23. [36]

    The plaintiff also relied upon the following relevant factors assessed by Ms Abreu which also bear upon the question of the relevant statutory precondition as follows:

    1. (1)

       under the heading "History of Support of Violent Extremism or Politically Motivated Violence", Ms Abreu identified a number of behaviours "which may be relevant to the context of violent extremism, politically motivated violence and terrorism", and categorised them into "Online Behaviours", "Written Material", "Verbal Statements and Overt Behaviours", and "Travel" (at [49]-[63]); and

    2. (2)

       that the defendant was noted to possess a "number of relevant proximal warning behaviours and distal characteristics which indicates his risk warrants both monitoring and relevant intervention to manage this risk" (at [128]).

24. [37]

    The defendant did not refer to authority of this Court which, in my view, had a direct bearing upon the determination of the preliminary questions raised by the defendant. These authorities reinforce the conclusion reached as to this question in this judgment.

25. [38]

    In Naaman, the defendant argued that the proceedings were incompetent because the conditions in s 23 were said not to have been satisfactorily addressed in the RAR. There, Campbell J, held the proceedings to be competent, stating at [16]-[18] that, notwithstanding the fact that the RAR stated “an adequate assessment of commitment to and support of ideologically motivated violence is unknown”, the RAR’s focus on “considerations specifically relevant to the risk of engaging in serious terrorism activity, rather than engaging in some other form of crime”, and the opinion that the defendant “presented as at a low risk of engaging in extremist violence” meant the RAR did “assess” a “material risk for the purpose of s 23(3)(b)”

26. [39]

    In Fayad, the RAR had opined that the defendant posed a “moderate risk of engaging in violent extremist behaviour”, and that should the defendant commit a serious terrorism offence it was “most likely” that this would include him being a member of a terrorist organisation, recruiting, providing funds or support and “less likely” that he would himself carry out an act of religious inspired violence. In that decision, Johnson J held at [85] that such a report satisfied the requirements of s 23(3) in that it addressed the likelihood of the defendant committing a serious terrorism offence.

27. [40]

    The approach to the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act” is productive of the same conclusion albeit by reference to the requirements of ss 6(3)(b) and 14(3)(b) of that Act.

28. [41]

    In State of NSW v Lynn (Preliminary) [2020] NSWSC 1066, N Adams J at [148]-[149], whilst acknowledging that “risk” and “likelihood” are different concepts, held that “risk” incorporates an assessment of likelihood and that it is not possible to assess an unacceptable risk under the CHRO Act without having regard to the risk of further offending. Her Honour further held that the fact that an RAR focussed on “the bigger picture of “risk” did not mean the requirements of s 14(3)(3) were not met.

29. [42]

    Risk assessment protocols and tools have been held to be permissible means by which likelihood may be assessed in CHRO Act proceedings: State of NSW v Avakian (Preliminary) [2021] NSWSC 245 at [98]-[99].

30. [43]

    In my view, the RAR satisfies the requirements of ss 23(3)(b) and 37(4)(b) of the Act and that, accordingly, the statutory preconditions for the application in that respect have been met. The application is thereby competent.

An Introduction to the Defendant’s Submissions

1. [44]

   The defendant submitted that the Court should, in the course of a preliminary hearing, weigh the probative value of the plaintiff’s evidence as to the matters alleged in the supporting documentation by the terms of the documentation relied upon per se and by reference to any evidence addressed by the defendant. In support of that submission the defendant emphasised the provisions of ss 50 and 54 of the Act in order to distinguish some authority of this Court,

2. [45]

   The judgment in State of NSW v Golding (Preliminary) [2018] NSWSC 1041 (“Golding”) (per R A Hulme J) should be distinguished because the judgment was made under the CHRO Act and relied upon the judgment of the NSW Court of Appeal in Attorney General for NSW v Tillman [2007] NSWCA 119 at [98] (“Tillman”). In particular, the Court should not approach the matter as set out in Golding at [17] where it was stated that it is not for the Court at a preliminary hearing to weigh up the documentation or to predict the ultimate the result or to consider what evidence the defendant might call at the final hearing.

3. [46]

   The judgment in Tillman concerned a preliminary hearing under the then Crimes (Serious Sex Offenders) Act 2006 (NSW) (“CSSO Act”) which later became the CHRO Act. Section 27 of the CSSO Act stated that the Act did not affect the right of any party to proceedings under the Act to call witnesses and give evidence or cross examine witnesses. It was found in Tillman at [39] that the powers to make interim orders are capable of exercise from time to time in the light of the situation then prevailing and that s 27 would have effective work to do in that respect where the defendant resisted the making of the interim order, even though the formal requirements of the Act were satisfied. Thus, the defendant may call evidence at a preliminary hearing particularly having regard to the counterpart provision to s 27 in s 50(1) of the Act.

4. [47]

   Whilst the Court of Appeal in Tillman at [98] found that, in determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing the supportive documentation or predicting the ultimate result, that judgment was given with respect to the CSSO Act. Neither the CSSO Act or the CHRO Act has a counterpart provision to s 50(2) of the Act which provides for a document, report or other information to be admissible in proceedings under the Act, despite any Act or law to the contrary. According to s 50(2), no rule of evidence is affected with respect to the relevance or probative value of the document or report or other information once it is admitted into evidence.

5. [48]

   The inference to be drawn from s 50(2) of the Act, when read in conjunction with s 54 is that, in a preliminary hearing under the Act, defence evidence can be received and can affect the weight to be given to matters alleged in the supporting documentation which is said to establish the pre-conditions to a determination under s 34(1)(d) or the counterpart s 20(d) (with respect to interim supervision orders). Further, the Court can thereby weigh the probative value of the plaintiff’s evidence as to matters alleged in the supporting documentation.

6. [49]

   Thus, the Court should distinguish Tillman because the CSSO Act did not have a prohibition equivalent to s 50(2) of the Act.

7. [50]

   Once any document or report is received under s 61 of the Act (see also s 58), other evidence can be received and acted upon which can affect the relevance and probative value of that material. Thus, evidence which, prima facie, would justify the making of an order can be found to be of insufficient weight to justify the making of an order: State of NSW v Haidar [2020] NSWSC 38 at [31], [37], [57]-[59], [78], [83] and [86] (“Haidar”).

8. [51]

   The judgment in State of NSW v Sturgeon [2019] NSWSC 559, per Garling J at [7] (“Sturgeon”) may be distinguished.

9. [52]

   In Sturgeon at [6], [7] and [13], there was no indication that the defendant was purporting to challenge the supporting documentation or produce contradictory material. Further, the observations made by Garling J were not dispositive of the ultimate issues that were before his Honour and his Honour did not have the benefit of submissions as to the effect of s 50(1) or s 50(2).

10. [53]

    This approach is supported by the judgment of Lonergan J in State of NSW v Hampton [2018] NSWSC 360 at [40].

11. [54]

    In that light the Court should have regard to the material annexed to the affidavit of Hayley Le and, in particular, the case note concerning Iman Kilani.

The Principles

1. [55]

   If, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, the Court must make orders appointing two qualified psychiatrists or two registered psychologists or a combination of both to conduct separate psychiatric or psychological examinations (as the case requires) of an eligible offender (as will be discussed below, there is no dispute that the defendant is an eligible offender within the meaning of that expression in s 7 of the Act) and to furnish reports to the Court on the results of those examinations and to direct the eligible offender to attend those examinations (see ss 24(5) and 38(5) of the Act). If the Court is not so satisfied, it must dismiss the application (ss 24(7) and 38(7)).

2. [56]

   The Court may make an IDO if it appears to the Court first, that the offender’s “current custody or supervision” will expire before the proceedings are determined; and secondly, it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO (s 41). The Court may similarly make an ISO if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO (s 27).

3. [57]

   It is useful to commence a discussion of the principles applicable to preliminary hearings by revisiting Tillman.

4. [58]

   That matter concerned an appeal from a determination to refuse an IDO under s 16(1) of the CSSO Act. The primary judge instead made an ISO for a 28 day period. The defendant was, at the time, serving the final week of a lengthy sentence of fulltime imprisonment for a serious sex offence.

5. [59]

   The Court of Appeal’s attention was directed to s 16 of the CSSO Act which provision was set out in [22] of Tillman as follows:

6. [60]

   The provisions of s 16(1) have as their counterparts s 18A of the CHRO Act and s 27 of the Act (see also s 41 of the Act).

7. [61]

   The Court of Appeal found that the powers conferred by s 16(1) entailed a discretion enabling the Court to refuse to make an order in a proper case, even if the provisions of, inter alia, s 16(1)(b) were satisfied (at [32]).

8. [62]

   Section 27 of the CSSO Act provided as at the time of the hearing of Tillman as follows:

9. [63]

   The counterpart of this provision is s 27 of the CHRO Act and s 54 of the Act.

10. [64]

    The Court of Appeal observed, with respect to s 27, as follows (at [39]):

11. [65]

    The defendant submitted that provisions such as s 27(b) of the CHRO Act (such that the legislation does not affect the right to call witnesses and give evidence) and s 50(1) of the Act must mean that a defendant may have a defence case in a preliminary hearing. However, as emphasised above, the Court of Appeal was, in this passage of Tillman, directing attention to a defendant resisting an application where the provisions of, by extrapolation, s 27(b) (or s 41) of the Act are satisfied. Further, the Court gave an illustration representing the limited scope for challenges in such circumstances by providing, as an instance, circumstances where an offender sought to establish that the matters alleged in the supporting documentation were “incapable of proof”. The Court observed that the provisions of s 27 of the CSSO Act reinforced a notion that there remained a judicial discretion under s 16(1) of that Act notwithstanding that the formal provisions of s 16 had been satisfied. It follows, by parity of reasoning, that that conclusion would be applicable to s 18A of the CHRO Act and ss 27 and 41 of the Act.

12. [66]

    The defendant placed reliance upon Haidar. Some further observations may be made in that respect.

13. [67]

    Haidar concerned a preliminary hearing under the Act. Davies J accepted a submission of the State, based on Tillman, that it was open for a defendant to produce evidence which was addressed to the exercise of the Court’s discretion to refuse to make an ISO (at [14]).

14. [68]

    It may be further observed that his Honour, in Haidar, stated:

    1. (1)

       In adopting the principles stated in Golding at [17] and Sturgeon per Garling J at [7], that it was not for the Court to weigh up the documentation, resolve any conflict, inconsistencies or uncertainties that appeared in the documentation to predict the ultimate result or to consider what evidence the defendant might call at the final hearing.

    2. (2)

       Similar to the approach of the Court of Appeal in Tillman at [39], his Honour referred to material in the supporting documentation which was incapable of proof such as the defendant’s observations of the bombing of a building in Lebanon when he was, without doubt, in Australia at the time (at [61]). His Honour found that strong evidence would be needed for the Court to reach a different conclusion from that of the Commonwealth (in the material before the Court) as to whether Hezbollah was an organisation that supported terrorist acts or violent extremism (in considering whether the defendant was a convicted NSW terrorism activity offender (at [58]).

15. [69]

    No different approach was taken with respect of opinion evidence of an expert as the characteristics of an organisation entitled AMAL (at [77]) or to her reliance upon the inadmissible evidence of another expert, Dr Shanahan (at [83] and [86]).

16. [70]

    In Golding, RA Hulme J stated (at [17]-[19]):

17. [71]

    The defendant contended that Golding had relied on Tillman at [39] and that portions of Tillman had established that provisions such as s 50 of the Act meant that the defendant may have a defence case. As I have discussed, [39] was not expressed in such absolute terms.

18. [72]

    It was also submitted that Golding relied on Tillman at [98], but that that passage of Tillman was concerned only with the CHRO Act which did not have the equivalent of s 50(2) of the Act. I will refer to the issues raised by s 50(2) but it may be observed at this juncture that the Court of Appeal stated in Tillman that the “threshold question” (being whether the supporting documentation would, if proved, justify the making of “either category of final order”) was to be resolved without considering what evidence might be called by the offender at the final hearing and without taking into account any evidence called by the defendant at the interim hearing, save as to discretionary matters.

19. [73]

    Later, in Sturgeon, Garling J stated (at [6], [7] and [13]):

20. [74]

    The defendant contended that the reasoning in Sturgeon was not dispositive of the issues in the matter because there is no indication the defendant was prepared to challenge the supporting documentation or to produce contradictory material. The difficulty with that submission is that was precisely the subject matter to which his Honour was directing his attention.

21. [75]

    The defendant also sought to distinguish this judgment by reference to s 50(2). Again, I will return to that question.

22. [76]

    It has been held that the Court looks at the allegations and documentation through the lens of the plaintiff’s case and looks then “at their highest when deciding whether the test articulated in s 27(b) of the Act has been made good in all the circumstances of the case” State of NSW v Cheema [2020] NSWSC 876 (at [100]) (“Cheema”) and State of NSW v Elzamtur [2019] NSWSC 186 (at [4]). Both of these authorities concerned applications under the Act.

23. [77]

    I do not consider that s 50(2) warrants a modification of the above line of authority with respect to the Act.

24. [78]

    Both the CHRO Act (or its predecessor, the CSSO Act) had the equivalent provision to s 50(1) of the Act (see s 21 of the CHRO Act or s 21 of the CSSO Act). So too, as noted earlier, were there provisions equivalent of s 54 of the Act. As submitted by the plaintiff, it is quite unlikely the legislation intended to significantly alter either the effect of s 50(1) or related provisions (or the equivalent provision of the CHRO Act) or the effect of those amendments by s 50(2) when the provision is introduced by the chapeau “to avoid doubt”.

25. [79]

    The provision is concerned with rules of evidence which deal the relevance or probative value of an admitted document, report or other information, where the Act has provided that the document, report or other information be admissible under the Act.

26. [80]

    This is plainly a reference to the operation of parts of the Act which expressly provide for the admission of certain materials despite any Act or law to the contrary (see, for example, s 61). A counterpart provision is s 25(3) of the CHRO Act.

27. [81]

    That gives rise to the prospect that some material of that kind attracting little weight in and of itself because of its inherent qualities (or lack thereof), as discussed in Haidar and Tillman because the material was simply incapable of sustaining the proposition advanced by the applicant on an evidentiary basis (see the earlier discussion in this judgment).

28. [82]

    The factual premises for the evaluations required of the Court under ss 38(5),27(b) and 41(b) are to the found in the words “the matters alleged in the supporting documentation would, if proven justify”.

29. [83]

    The plaintiff is not required to prove the allegations it makes: State of NSW v Thurston [2017] NSWSC 1760 at [19].

30. [84]

    The task of the Court at a preliminary hearing has been described, as noted above, as akin to a prima facie case test: State of NSW v Love (Preliminary) [2019] NSWSC 1660 at [31] (per Walton J); State of NSW v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of NSW v Reay [2014] NSWSC 1362 at [29] (per Button J).

31. [85]

    A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).

32. [86]

    In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]):

33. [87]

    The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of NSW v Hampton [2018] NSWSC 360, Lonergan J said at [40]:

34. [88]

    Sections 27(b) and 41(b) of the Act require attention to be given to “the matters alleged in the supporting documentation”. A “matter alleged” should have some proper foundation and could not include matters of rumour, possibilities unfounded in fact or wholly unsupported speculation: State of NSW v Alam [2020] NSWSC 295 at [159]; Cheema per Johnson J at [103]; the “matters alleged” refer to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them: Golding at [18].

35. [89]

    In State of NSW v Lynn [2013] NSWSC 1346, Beech-Jones J considered a predecessor provisions at [17]:

36. [90]

    Once the requisite state of satisfaction is reached at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an interim order. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court’s discretion: Tillman at [32] and [98]. (See also Haidar per Davies J at [14]).

37. [91]

    It should also be observed that risk avoidance is the focus of the enquiry at the preliminary stage: State of NSW v Barez (Preliminary) [2019] NSWSC 1589 at [35] per Fullerton J; Attorney General for NSW v Winter [2007] NSWSC 611 at [7]; Sturgeon at [47]. The Court will be best placed to assess the defendant’s risk upon receipt of the expert opinions ordered pursuant to ss 24(5) or 38(5) of the Act.

STATUTORY SCHEME

1. [92]

   The primary object of the Act is to “provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community”: see s 3. Another object of the Act is “to encourage such offenders to undertake rehabilitation”. It follows that the orders that may be made under the Act are protective, not punitive: see, by analogy, Tillman at [5]; Kamm v State of NSW (No 4) (2017) 345 ALR 669; [2017] NSWCA 189 (“Kamm”) at [113], [147]; State of NSW v Ibrahim (Final) [2021] NSWSC 793; Cheema at [81].

2. [93]

   “Serious terrorism offence” in defined in s 4 as an offence against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 or more years of imprisonment. These offences include:

3. [94]

   I agree with the submission advanced for the plaintiff that the offences cover a very broad range of conduct and do not require the commission of an act of violence. Inclusion of such a wide range of conduct is consistent with the legislative intention underlying Act, being the protection of the community.

4. [95]

   Section 4 of the Act provides that “terrorist act” has the same meaning as given to the term in Pt 5.3 of the Criminal Code, namely (s 100.1(1)).

5. [96]

   In Minister for Home Affairs v Pender [2021] NSWSC 1644 this Court gave the following summary of the definition of terrorism act at [35]:

6. [97]

   In considering the term “terrorist act”, the Court of Appeal in State of NSW v Naaman (No 2) [2018] NSWCA 328 at [33]-[34] (“Naaman (No 2)”) construed the words “action” in paragraph (a) of s 101.1(1) as including “actual or threatened” action. The Court concluded (at [35]):

7. [98]

   The Court (at [34]) considered this to be consistent with the approach adopted in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44] per Gummow and Crennan JJ:

8. [99]

   It is reasonably clear that, having regard to those authorities, that the relevant intentions must accompany a threat of action (per s 101.1(1)(b) and (c)) but the reference to particular consequences in s 100.1(2) is not a reference to an intention on the part of the person making the threat of action, but the characteristic of the action threatened.

9. [100]

   By extrapolation from the discussion in Naaman (No 2) at [29], the statutory preconditions for the making of a CDO or an ESO are as follows:

   1. (1)

      the defendant is an “eligible offender” within the meaning of the Act: s 7;

   2. (2)

      the defendant is a detained offender or supervised offender (or was at the time the original application was filed): ss 20(a), 34(1)(a);

   3. (3)

      the defendant is “a convicted NSW terrorism activity offender”, within the meaning of s 10 of the Act: ss 20(c), 34(1)(c);

   4. (4)

      the application is made in accordance with Part 2 or Part 3 of the Act respectively: ss 20(b), 34(1)(b);

   5. (5)

      in the case of a CDO application, the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in custody: s 34(1)(d); and

   6. (6)

      in the case of an ISO application, the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision: s 20(1)(d).

10. [101]

    In view of material before the Court, senior counsel for the defendant properly conceded the following as to those preconditions:

    1. (1)

       For the purposes of ss 20 and 34(1), the defendant is an “eligible offender” within the meaning of that expression in s 7 of the Act.

    2. (2)

       For the purposes of ss 20(a)(i) and 23(1)(a), the defendant was in custody whilst serving a sentence of imprisonment for an offence which meets the definition of a NSW indictable offence in s 4(1) of the Act.

    3. (3)

       For the purposes of ss 34(1)(a) and 37(1)(a) the defendant is a “detained offender” within the meaning of that expression in s 33 of the Act.

    4. (4)

       For the purposes of ss 23(2) and 37(2), the application by the plaintiff was made after the beginning of the defendant’s last 12 months in prison.

    5. (5)

       On the basis of the supporting documentation, and for the purposes of ss 20(c)(iii) and 34 (c)(iii), the defendant is “a convicted NSW terrorism activity offender” pursuant to s 10 of the Act. Senior Counsel for the defendant accepted that the defendant had previously made a statement advocating support for a “terrorism act or violent extremism” as defined in s 10(1A)(a)(ii) or (iii). I note in that respect that s 10(1A) specifies an inclusive, non-exhaustive list of matters relevant to s 10(1)(c).

11. [102]

    In Ibrahim, the Court provided the following summary of the authorities regarding the interpretation of the word “advocating” as used in s 10(1)(c) (at [70]-[74]):

12. [103]

    Further, in Ibrahim the meaning of the term “violent extremism” was discussed as follows (at [81]-[82]):

13. [104]

    In Osman v State Parole Authority & the Attorney General of NSW [2020] NSWSC 1392, Wilson J considered the meaning of the term “violent extremism” where it is used in s 159C of the Crimes (Administration of Sentences) Act. Her Honour held (at [73]):

14. [105]

    Section 11 of the Act provides that, in determining whether an eligible offender is an offender within the meaning of ss 9 or 10, the Court may take into account the following matters:

Unacceptable Risk of Committing a Serious Terrorism Offence – Sections 34(1)(d) and 20(1)(d) - Principles

1. [106]

   The Court is only able to make a CDO if satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order.

2. [107]

   Putting aside s 34(2), the task conferred on the Court by s 34(1)(d) of the Act is left largely unaffected by other provisions of the Act, save that s 35 makes clear that the Court “is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence”.

3. [108]

   The requirement of being satisfied to a “high degree of probability” imports a standard of proof that is higher than the civil standard but lower than the criminal standard: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21]; Naaman (No 2) . Although the standard is a high one, it is important to recognise that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit an offence of the relevant kind, but, rather, that he or she poses an “unacceptable risk” of doing so: see, for example, The State of NSW v Sharpe [2017] NSWSC 469 at [51]; State of NSW v Wilson (Preliminary) [2017] NSWSC 1367 at [21] (both decisions concern “unacceptable risk” in the context of the Act).

4. [109]

   Whilst Naaman No 2 was concerned with the elements of s 20(d) of the Act, the following aspects of the judgment of the NSW Court of Appeal (at [29]) as to the question of unacceptable risk are applicable in the present context:

5. [110]

   Whether a particular risk is “unacceptable” is an evaluative determination which falls to be made in the applicable statutory context in which the question arises: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [51]-[61], [116] and [132]. In this respect, the Court must have regard to the primary protective purpose of the Act, namely, and as with the purpose of the CHRO Act, to “ensure the safety and protection of the community”: Lynn at [55]. The phrase “unacceptable risk” is not defined in the Act and should be given its everyday meaning within its context and having regard to the objects of the Act: State of New South Wales v Dunn (a pseudonym) (2008) 273 A Crim R 238 at [24]; [2018] NSWSC 1008 referring to Lynn at [58].

6. [111]

   Reference may also be made to the judgment in State of NSW v Ceissman [2018] NSWSC 508 where the Court discussed the evaluative assessment required under s 20(d) of the Act as follows (at [26]-[33]):

7. [112]

   Reference may also be made, in that respect, to State of New South Wales v Currie (Final) [2021] NSWSC 676 at [19]:

8. [113]

   As with the CHRO Act, the structure of the Act requires that the Court first undertake a determination of whether an offender poses the relevant “unacceptable risk”, having regard to the relevant standard, prior to considering whether or not to make a CDO or ESO. It is only once the Court has made a determination that an offender poses an unacceptable risk of the relevant kind that the question of whether to make a CDO or ESO is to be addressed; State of NSW v Fisk [2013] NSWSC 364 at [22] (“Fisk”), Kamm at [26] and [42], State of NSW v French (Final) [2017] NSWSC 1475 (“French”) at [42].While the Court is not mandated to consider all of the matters referred to in ss 25(3) and 39(3) of the Act in determining whether or not it is relevantly satisfied as to the requisite unacceptable risk (as distinct from whether or not it should make the order sought), those matters may inform the application of the test: see Fisk at [22], Kamm at [42], French at [41].

9. [114]

   In Naaman (No 2), the Court also emphasised the critical importance (at least where the risk propounded is of the commission of a terrorist act), of the need to establish a risk of violence done with the intention of both advancing a political, religious or ideological cause; and coercing or influencing by intimidation a government or a section of the public.

10. [115]

    In State of New South Wales v Church [2021] NSWSC 246, Campbell J said of the intention issue (at [88]):

11. [116]

    I have earlier referred to the definition of “serious terrorism offences” and offences falling under Pt 5.3 of the Criminal Code.

12. [117]

    The defendant posed a question as to what offence “is the defendant imagined to be at risk of committing?”.

13. [118]

    It was submitted that the plaintiff had not identified a particular offence or offences that amounted to a serious terrorism offence that the defendant was at risk of committing. Similar arguments were advanced with respect to a failure to meet the preconditions for the application; it had been contended that the plaintiff invited the Court to speculate that there would be an act constituting a serious terrorism offence.

14. [119]

    It was accepted by the defendant that, self-evidently, any prospective assessment of risk is unlikely able to precisely identify the offence that will be committed. However, it was submitted, at a minimum, the Court must be satisfied of something more than there being a risk that the person will commit a violent act. The Court must be satisfied that there is an unacceptable risk of the defendant committing a serious terrorism offence within the meaning of the Act: see State of New South Wales v Dickson (Final) [2020] NSWSC 100 at [78].

15. [120]

    The defendant contended that the Court could not be satisfied that the defendant had the intentions described in s 100.1(1)(b) and (c) of the Criminal Code. It was contended that the clear evidence was that the threats if they were to be made again a function of emotional dysregulation.

16. [121]

    From these propositions the defendant advanced the following submission:

17. [122]

    In response to these contentions the plaintiff contended, correctly in my view, that Pt 5.3 of the Criminal Code involved, as I have earlier mentioned, a broad spectrum of conduct many of which fall short of actually carrying out an act. Emphasis was placed on the fact that making threats is sufficient. So too is joining institutions or making preparatory steps. It was emphasised that the purpose of Pt 5.3 of the Criminal Code was prevention of terrorism. It was correctly submitted that it was unnecessary to identify a particular serious terrorism offence.

18. [123]

    The differences between the elements of a “terrorist act” in s 100.1 of the Criminal Code, and other offences in Pt 5.3 of the Criminal Code which also fall within the meaning of “serious terrorism offence” are significant. Offences such as membership of a terrorist organisation (s 102.3), recruiting for a terrorist organisation (s 102.4), training involving a terrorist organisation (s 102.5) and providing support to a terrorist organisation (s 102.7), do not require proof of the same or even similar intentions as the commission of a terrorist act.

19. [124]

    Satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence includes but is not limited to terrorist acts. The Court’s assessment is not confined to the intention elements of a terrorist act. Similar observations may be made regarding the defendant’s approach, as earlier discussed, regarding the opinions expressed in the RAR about the defendants likely intentions and motivations bearing upon the Court’s assessment of the likelihood of the risk of the defendant committing a serious terrorism offence.

20. [125]

    In Naaman (No 2), the Court of Appeal referred to the fact that the State had not particularised the serious terrorism offence upon which it relied, but did not suggest that there was any requirement of particularisation: at [39]. In Alam at [129], Wilson J held that it is not necessary for the Court to specify the serious terrorism offence as part of the Court’s risk assessment function under the Act. In Cheema at [189], Johnson J agreed with that statement and further observed:

21. [126]

    There are two further matters requiring attention in this respect.

22. [127]

    First, the defendant submitted that the Court could not be satisfied that the defendant had the requisite intention because the relevant acts were connected with emotional dysregulation. As was pointed out in Pender at [444], the fact that various acts contributing to the risk of engaging in the relevant offending may be the product, in whole or in part, of a disordered mind (or in this case emotional dysregulation), does not preclude the risk as being applicable under s 34(1)(d) and, depending on the facts and circumstances of the case, may exacerbate the risk of the defendant committing a serious Pt 5.3 terrorism offence.

23. [128]

    Secondly, the defendant submitted that the relevant question at this stage of analysis is not whether the defendant has in the past held beliefs or commitments that support engaging or participating in terrorism activities but whether, on the matters alleged in the supporting documentation he holds them today, such as to justify the making of an order under the Act. I accept the submission of the plaintiff that there is no basis to confine the belief referred to for the purposes of s 25(3)(l) and s 39(3)(l) to beliefs held at the time of the Courts assessment. Evidence of beliefs held in the past are relevant, together with other evidence, to the assessment of a person’s beliefs in the present and in the future, particularly in the absence of evidence of disavowal.

FACTUAL BACKGROUND OF THE DEFENDANT AND THE PRESENT APPLICATION

1. [129]

   The plaintiff provided a detailed chronological analysis of the defendant’s background, upbringing and relationships as well as relevant events said to bear upon the question of unacceptable risk. The defendants submissions, in part, focussed upon discrete aspects of that evidence commenting on the weight that may be attached to the documentation supporting the application and also referring to various statements made by the defendant about his beliefs and motivations for his past conduct as well as reflections upon the future including evidence given through Ms Hayley Le incorporating the opinions Iman Kilani in a case note and evidence regarding a community based program that is referenced in Annexures C and D to the affidavit of Ms Le.

2. [130]

   Reference has previously been made to the principles associated with the use of the defendant’s evidence in this assessment of unacceptable risk (as opposed to questions arising in relation to the Courts discretion).

3. [131]

   I do not propose to traverse those considerations again at this point but rather to make some observations of a more general character about that evidence in the context of the consideration of the factual background.

4. [132]

   First, it is relevant to bear in mind that the statements attributed to the defendant about his beliefs and motivations for his past conduct derive from essentially self-serving, unsworn statements made by him at various times.

5. [133]

   Secondly, the defendant sought to rely upon the evidence concerning the opinions of Iman Kilani that the defendant was not an extremist or holding of extremist ideology and reported that the defendant was “happy to continue supporting Mejid once he is released into the community”. It was submitted that Iman Kilani view should carry weight because he had spent time with the defendant discussing theological issues as well as taking into account where the defendant had prayed in the community and what Sheikhs the defendant had followed. Reference was also made to Iman’s opinion that the defendant did not have the motivation or intention to engage in violent extremism, political motivated violence or terrorist activity.

6. [134]

   In oral submissions, Mr Buchanan contended that the contents of Iman Kilani’s case note reflected upon the period in which the defendant was in the Lithgow Correctional Centre and was rebuttal to various material relied upon by the plaintiff in that period suggestive of violent extremism or religious fundamentalism.

7. [135]

   Noting my earlier reference to the limited opportunity for a defence case prior to the exercise, if required, of the Courts discretion with respect to an application under the Act, it may also be observed that there is significant difficulty in the use of this case note by the defendant if it is to be espoused as representing an expert opinion as to whether the defendant holds extremist views or extremist ideology. The opinions fall well short of the requirements of an expert opinion having regard for example to requirements expressed in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. There is no indication of what assumptions have been made or the process of reasoning leading to the opinions. There is also an absence of any reference to or acknowledgments that Iman has had available to him the material, for example, found on the defendant’s electronic devices: including a beheading video, extremist preaching and alike. There is a reference to what the defendant wrote to the Governor of the Corrections Institution at this time regarding the influence of drugs and to the defendant’s threats, but this is very limited material having regard to the overall material concerning the defendant’s beliefs and materials as exhibited in the supporting material. There would certainly be no basis in the material presently before the Court to prefer the opinion of Iman Kilani to that of Dr Shanahan who gave expert opinions in these proceedings who, in my view, is a relevant expert bearing upon the beliefs and motivations of the defendant.

8. [136]

   As to the community-based program referred to in Ms Hayley Le’s affidavit there is no evidence that suggests that the defendant intends, proposes or is likely to participate in the program in this preliminary hearing.

9. [137]

   With those considerations in mind the factual background which follows relies substantially upon the submissions of the plaintiff as to the relevant background (which I have assessed as being a correct statement of the background having regard to the material in support of the application, if proven) with reference to particular issues raised by the defendant in the defendant’s written and oral submissions.

10. [138]

    The defendant was born in Sydney in 1987 and is 34 years old. He was raised in Merrylands by his aunt and uncle, whom he understood to be his biological parents until the age of 14. His biological mother is Lebanese and his father Samoan.

11. [139]

    The defendant had an unremarkable upbringing until learning of his adopted status at age 14. He has repeatedly identified this event as significant, and the catalyst for deterioration in his behaviour and emotional functioning. He has previously reported that learning of his adoption left him confused and with a fractured sense of identity.

12. [140]

    Thus, the defendant considered that, until he learned of his adoption, his life was “good;” he “never had any problems”. He was doing well at school. Afterwards, his sense of identity was “fractured”. He “disengaged” from school and football.

13. [141]

    The defendant left school in year 8 or 9 and became employed in cement rendering for approximately two years. He was subsequently unable to maintain employment due to his use of drugs and has since been employed on a sporadic basis and otherwise in receipt of government benefits.

14. [142]

    The defendant was married in an Islamic marriage for one to two years in his early 20s, however this was marred by his drug use and self-medicating behaviours. These issues led to separation and divorce. He has otherwise not had any significant relationships.

15. [143]

    The defendant has in the past demonstrated a reluctance to discuss and identify his social associations, which appear to include some anti-social criminal peers, however the degree of these associations is not entirely clear.

16. [144]

    While he appears to have always maintained a relationship with his aunt and uncle, and had their support, his attitudes and feelings towards them fluctuate. Similarly, the relationship with his biological mother has been difficult at times.

17. [145]

    Ms Abreu in the RAR reflects that the defedant has poor social attachments and self-identity issues resulting from his response to learning of his adopted status at age 14.

18. [146]

    The defendant began using drugs and alcohol at age 14 as a form of “self-medication”. He reports initially using cannabis, ecstasy and occasionally cocaine. He also reports a long history of using steroids, increasing use of cocaine and extensive abuse of prescription medication such as Xanax, Tramadol and Valium, including at the time of his offending.

19. [147]

    The defendant has a criminal history comprising predominantly violence and drug-related offences, commencing as a juvenile. His violent offending has been towards Police and Corrective Services officers (in 2005, 2007 and 2018) and persons in the community both unknown and known to him (in 2010 and 2018). His drug offending has been low level (fines in 2012, 2016 and 2018).

20. [148]

    At age 17 the defendant was cautioned by the Children’s Court for an offence of assaulting an officer in the execution of his duty and that two years later in 2007 a similar offence was dismissed without conviction by the Local Court.

21. [149]

    In 2010, the defendant was convicted of assault occasioning actual bodily harm for punching a security guard at a bar. He was required to enter a two year good behaviour bond as a result of this offence.

22. [150]

    The defendant appears to have been raised in an Islamic household and adhered to the practices of an Islamic faith to varying degrees throughout his life.

23. [151]

    In September 2015, the defendant reported that he was a Sunni Muslim, but not really a practising Muslim. He reported attending a few different mosques near his home, not always praying five times a day and having learned the “basics” of Islam.

24. [152]

    His adoptive parents have remarked that prior to entering into custody he did not practice his religion to a significant degree, and that jail has appeared to motivate him to pursue his religious beliefs further.

25. [153]

    Interactions with the defendant during his time in custody suggest he had developed or expanded the extent of his religious education and beliefs and that he now drew a significant part of his self-identity and purpose from those religious beliefs.

26. [154]

    The defendant stated that he had no intention to travel to Syria, and indeed was afraid to do so as he believed he ran the risk of having his “head chopped off” if he did so because of his tattoos.

27. [155]

    The defendant also stated that he had not been intercepted, the tour guide he was with had planned to take him to another town with refugees. The defendant did not decide to undertake this part of the trip until he was in Adana (which is relatively close to the refugee camps).

28. [156]

    Upon his return to Australia, the defendant gave a detailed account of his travels to the Federal Police. He was warned that the police and other authorities would consider the truth of his account and take adverse action against him if they formed the view he was, to use the words of the officer: “full of shit.” He was told that the investigation would include speaking to other people in the community, others who had been removed from Turkey, and an inquiry into his telephone records and people he had contacted.

29. [157]

    On his return to Australia in September 2015 the defendant admitted to having seen Islamic State propaganda material on Facebook, however denied any support for Islamic State, or intention to travel to Syria. He said he had not informed any family or friends of his intention to travel to Turkey or booked any travel to Turkey while in Australia (booking only to Malaysia), because he believed authorities would take his passport and prevent him from leaving if this was known.

30. [158]

    The defendant reported to Australian Federal Police officers that an uncle in his family who was in the Lebanese army had been captured by Islamic State. He later reported the uncle had been killed by ISIS, and that this was a reason he hated the organisation.

31. [159]

    Material before the Court also indicates that the defendant was in a car with Amin Elmir on 28 November 2015. The car was searched but nothing untoward was found. Mr Elmir was later convicted and sentenced to an offence of committing acts in preparation for incursions into a foreign country contrary to s 119.1 of the Criminal Code.

32. [160]

    The defendant submitted in that respect that Mr Elmir did not commit a terrorist offence (as the offence for which he was convicted falls under Part 5.5 of the Code); did not commit his offence until months after the time he was found in the car with the defendant; did not conduct preparatory acts in Australia and his offence was impulsive and not planned.

33. [161]

    It was further contended that the plaintiff had conceded that no information was known as to the nature and the extent of the association between Mr Elmir and the defendant other than them being in the car together although at the time he committed the offence, Mr Elmir was under investigation by the Australian Federal Police and investigators had access to Mr Elmir’s contacts with people who he was asking to assist him to enter Syria.

34. [162]

    As to the defendant’s entry into Gaziantep the defendant submitted that there was an absence of material indicating what action was taken and that it should be inferred that the defendants account is true. Further, there was no adverse inference concerning his risk were to be drawn from his trip to Turkey or as to his association with Mr Elmir. It was submitted that it should be inferred that the material available in the investigation did not disclose a link with the defendant and in the result the Court could not reason that this kind of act gave rise to any increase in the risk of commission by the defendant of a serious terrorism offence.

35. [163]

    The defendant submitted that the evidence ought not be taken into account because there are positive or favourable inferences arising from the material that in effect render the matters neutral (DS [50] and [56]), and because ss 25(3)(m) and 39(3)(m) are directed to “information as to the likelihood that the offender will commit a serious terrorism offence”, not “information that goes in some unquantifiable way to the question of likelihood”.

36. [164]

    As to the defendant’s travel in 2015 to Gaziantep on the Turkish Syrian border I do not consider favourable inferences may be drawn from the material before the Court. The defendant stated in answers to questions that his purpose for travelling to that location was to see and or help refugees on the border. However, as explained by Dr Shanahan in his evidence, Gaziantep is “one of the hubs in Southern Turkey from which Jihadist fighters were able to be smuggled into Syria to join groups including Islamic State”. Although the timeline for this status is not explicit it appears to be before July 2016 based upon the source referenced in his report (513 at [33] and [34]). Given that the plaintiff relies upon this material cumulatively as part of a mosaic of evidence relevant to risk I consider that the material in 2015 relating to the defendant’s travel to Gaziantep is relevant to risk.

37. [165]

    The circumstances of the defendant being found in a vehicle with Mr Elmir when travelling in the same vehicle when being stopped by police raises separate considerations. I do not consider that this material is irrelevant to the question raised by s 25(3)(m) or 39(3)(m). That provision relates to “any other information” that is available as to the likelihood that the offender will commit a serious terrorism offence. In that sense, it again forms part of the matrix of considerations raised for consideration on the evidence by the plaintiff. However, for the reasons given by the defendant, it must constitute a minor part of the mosaic of evidence relevant to risk, even though more broadly, the defendant himself acknowledged that he had probably run into radicalised persons in the community and the psychological assessment of the defendant’s susceptibility to influence by others made him vulnerable to adopting extremist ideology if it facilitates a sense of belonging and significance.

38. [166]

    It is then appropriate to turn to the events of 2018.

39. [167]

    It appears from analysis undertaken by police of the Toshiba hard drive located and seized at the defendant’s home (his aunt and uncle’s home) in August 2018 that, from at least December 2017, the defendant possessed violent extremism related material in the form of audio teachings.

40. [168]

    In late January 2018, the defendant was stopped by police at a bus stop in possession of prohibited Xanax pills. He reported he was travelling to a drug rehabilitation centre in Melbourne for cocaine addiction and intended to use the Xanax to sleep on the bus trip. He was later charged with possession of the Xanax.

41. [169]

    On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm upon a male person known to him. Late in the evening, he attended the male’s home, where the male’s wife and three young children were also present. The two men spoke outside, before the male turned to go inside. At this point, without warning, the defendant struck the male to the left side of his face from behind, knocking him to his hands and knees. He then kicked him to the head knocking him backwards and his head hit the concrete.

42. [170]

    On 6 April 2018, the defendant was arrested and charged with the reckless grievous bodily harm offence and released on conditional bail. His iPhone, was seized by police, and subsequent Cellebrite examination revealed that the defendant possessed on the phone a significant volume of violent extremism and Islamic State related content (including videos, pictures, audio recordings).

43. [171]

    Further violent extremism and Islamic state related material (particularly audio and video files) in folders dated between late-May and mid-July 2018 were later located on the Toshiba hard drive seized from his home in August 2018.

44. [172]

    Between at least late July and 7 August 2018 the defendant also operated a Facebook account, on which he posted comments, pictures and videos predominantly relating to religious teachings and interpretation and including some violent extremism content. He also operated an Instagram account which included such material.

45. [173]

    On 7 August 2018, the defendant was arrested at his home for breaching his bail conditions in respect of the reckless grievous bodily harm offence. His then current mobile phone, the Nokia phone, was seized at the time of his arrest. According to a Cellebrite examination of the defendant’s mobile phone seized from him at the time of his arrest on 7 August 2018, the defendant also possessed “Nasheed” ringtones on his mobile phone in late July 2018.

46. [174]

    The defendant was conveyed to Parramatta Police Station where he then committed a serious of offences against Police and Corrective Services staff, including making the following threats:

47. [175]

    Dr Shanahan was asked to consider whether this statement was “consistent with support for terrorists acts or violent extremism, or associated with an ideology that supports the same.” Dr Shanahan’s view was that it was not, except for the second statement, when the defendant turned to another officer and said:

48. [176]

    The sentencing magistrate accepted that the defendant was sorry for what he had done.

49. [177]

    The defendant submitted that this offence represented the defendant’s inability to regulate his emotions rather than being a disposition of extreme violence on terrorism. Reliance in this respect was placed on the report of Ms Abreu and also the defendant’s act of butting his head against the cell door at the time of the offence, which was submitted by the defendant as displaying the defendant as violent, impulsive and unable to regulate his emotions rather than an act of extremist violence or terrorism.

50. [178]

    The plaintiff’s response to this submission was that it was part of a mosaic. It was not simply just actual violence and the threat of violence, it was a reference to beheading and ISIS. It was correctly submitted that the threat of beheading and the making of an ISIS video upon the defendant’s release is enough in itself to constitute a Pt 5.3 terrorism offence.

51. [179]

    The defendant submitted that at the time he committed the assaults he was withdrawing from marijuana and cocaine and that the offences were impulsive and born out of anger at something that had been done personally to the defendant at the time.

52. [180]

    The withdrawal from drugs is a matter of self-reporting by the defendant. Further, it is difficult on the material before the Court to form any conclusion as to the defendant’s motivations for his actions. As earlier noted, his inability to regulate his emotions or the impact of drugs at the relevant time may have been productive of his acts or conduct does not, without more diminish the risk and may, in fact, exacerbate it. What is of real significance is the material found in the possession of the defendant about this time.

53. [181]

    The defendant entered into custody on 7 August 2018 and has remained there since. A few days after his arrest, during the execution of a search warrant, police seized the Toshiba hard drive from the defendant’s home. As noted above, that hard drive was found to contain extensive violent extremism and Islamic State related material. The circumstances of the location of the Toshiba hard drive, taken together with the other evidence about such material possessed by the defendant on his mobile phone devices, indicates that the hard-drive and its contents were possessed by the defendant.

54. [182]

    During the course of the search at the defendant’s home, police also located shot gun shells. While it was assessed that exclusive possession of these could not be established for the purpose of a criminal charge, it is a relevant circumstance to the present proceeding.

55. [183]

    In December 2018, he was sentenced for the offences he committed on 7 August 2018, to an aggregate sentence of 40 months’ imprisonment, with a non-parole period expiring on 7 September 2020 and head sentence to expire on 7 December 2021.

56. [184]

    I then turn to the events of 2019 and 2020.

57. [185]

    Senior counsel for the defendant made a lengthy submission regarding an event in 2019. Various exchanges occurred between the defendant and corrective services officers after an initial targeted cell search. Dr Shanahan described the statements by the defendant during heated exchanges with the corrective services officers regarding amongst other things respect for the Koran as representing generalised threats of violence about religious contexts.

58. [186]

    In early July 2019, the defendant complained to Parklea Correctional Centre staff about the manner in which his books (presumably religious books based on subsequent events) were searched in his cell. The defendant submitted that the exchange which occurred between a Corrective Services NSW Intelligence Analyst and the defendant was polite; a submission available on the evidence.

59. [187]

    On 22 July 2019, the defendant wrote a letter to the Governor of the Correctional Centre, intelligence officers and the judge presiding over his then ongoing criminal case in respect of the reckless grievous bodily harm offence. The letter was stopped at the Correctional Centre.

60. [188]

    The letter, which has been assessed by Dr Rodger Shanahan, as “consistent with the ideological view that there is a war on Islam and its followers, which is a fundamentalist argument espoused by jihadist groups such as al-Qaida and Islamic State”, included the following references:

    1. (1)

       “We disbelieve in your laws”;

    2. (2)

       Called the intended recipient’s “murderers” due to Australia’s perceived involvement in “war on Islam” referring to the conflicts in Iraq/Syria (with reference to specific towns);

    3. (3)

       Referred to inmates in custody charged with murder as “brothers”;

    4. (4)

       “Tawagheet of 2day” and “murtadeen”;

    5. (5)

       Indicated that he rejects democracy, and referenced “Clashing of the swords”;

    6. (6)

       Quoted verse 60:4 from the Quran.

61. [189]

    In phone calls to his mother the following day, the defendant indicated the writing of the letter was premeditated and expressed full knowledge of and intention in relation to the letter and its contents. He appeared to be hopeful of a transfer to Goulburn Correctional Centre as a result of writing the letter.

62. [190]

    In an interview with an intelligence officer on 24 July 2019, the defendant again appeared to express full knowledge and intention for the creation of the letter and its contents. He said his motivation for writing the letter was that he rejected all man-made laws and democracy and that the law is only for God to decide. He indicated he would “continue to preach to others” at the Correctional Centre, and that he believed he is an innocent man and should be released.

63. [191]

    In a telephone call to another friend after the interview, the defendant said “I’m giving Da’wah [the call to Islam]”, and again indicated full knowledge and intention for the letter and its contents, referring again to Verse 60:4 and God giving something in return for sacrifice and speaking the truth. He indicated he felt comfort and happiness for his “decision” to write the letter.

64. [192]

    A few days later, on 27 July 2019, the defendant made a call to another friend. He said he had been visited by the Governor of the Correctional Centre, and claimed he told the Governor he did not remember anything of what he had done or written. The friend suggested “say you’re off your head…let them do a piss test”, which the defendant embraced saying “I was off my face, I was really off my face…but that’s the other thing I’ll be rejecting that letter”. The conversation then was about the defendant’s outstanding criminal matter which appears to have been for hearing.

65. [193]

    On subsequent occasions the defendant has claimed he was under the influence of drugs at the time he wrote the letter.

66. [194]

    The defendant sought to characterise these actions in a written submission which was in the following terms:

67. [195]

    The plaintiff made the following reply submissions in response to the aforementioned submission by the defendant which in my view are factually correct as follows:

    1. (1)

       There is plainly material available in the immediate aftermath of the creation of the letter which supports a conclusion that the letter was a premediated and deliberate expression of genuinely held views of the defendant in the creation of the letter.

    2. (2)

       The defendant was not interviewed about the letter on the 7 August 2018 but rather two days after, on 24 July 2019. At that time the defendant made no mention of drug use or self-harm. He was then interviewed again on 7 August 2019.

    3. (3)

       There was no evidence that the defendant was under the influence of drugs at the time of each of the telephone conversations between 23 and 27 July 2019 in which he spoke about the letter.

    4. (4)

       A self-harm alert was created in respect of the defendant on 8 August 2018. However, this was at the time of his entry into custody nearly 12 months prior to the letter and related interviews.

    5. (5)

       The incident report dated 8 August 2018 reveals that the alert was created as staff were “unable to assess level of risk to himself due to his highly aggressive state” after he assaulted an officer at the Parramatta Court Cells. That alert was terminated the following day, on 9 August 2018, as he was “cleared by RIT as nil self-harm, nil mental health issues”.

68. [196]

    In September 2019, Corrective Services photographed the defendant’s body, on the basis of information received that he had extremist related tattoos. The tattoos included the word “Jehad” and an AK-47 machine gun. At the time of taking the photographs, centre staff reported the defendant as stating the “Jehad” tattoo was in reference to a friend Jehad Jodeh who he wrote to regularly through the inter-jail mail. The plaintiff submitted that the relevant tattoo with the word “Jehad” is not on the defendant’s face but is located on his chest/abdomen and is immediately adjacent to the tattoo of the Kalashnikov. It was submitted that due to the tattoo’s location, namely, adjacent to the tattoo of Kalashnikov and the report of Dr Shanahan where “Kalashnikov” was identified as being the weapon of choice of ISIS, that it was evidence of extremist related tattoos. On the material before the Court, I accept that submission.

69. [197]

    On 10 October 2019, the defendant was convicted and sentenced in the Local Court for the reckless grievous bodily harm offence. He was sentenced to a fixed term of imprisonment commencing on 22 July 2019 and expiring on 21 October 2020.

70. [198]

    On 24 October 2019, the defendant was designated a National Security Inmate (“NSI”). He was interviewed shortly after by the functional manager of intelligence at the Wellington Correctional Centre where he was housed, and said “I want to be with my Muslim brothers at Goulburn”, a sentiment he reportedly repeated every 2-3 weeks in discussions with the functional manager.

71. [199]

    On 9 March 2020, during the course of a targeted cell search the defendant became verbally aggressive about the manner in which his religious books were handled, and then became physically aggressive in the course of being restrained after failing to comply with directions. He made threats to Corrective Services officers which included “I am going to cut your throats and rape your mothers”. During escort following the incident, the defendant made further threats to another Correctional Officer, calling him “a traitor to the race” and other derogatory comments which appeared to be related to ethnicity.

72. [200]

    During the course of the cell search Corrective Services officers identified graffiti on the cell wall, including a picture of what appeared to be a machine gun, with the word “Klashiknove” (sic) written underneath and the abbreviation “NSI” with the words “National Security Interest” written in small letters underneath. The defendant later denied creating the graffiti, however the circumstances suggest he was the only reasonably possible creator. The defendant submitted that on the assumption that the writing and drawing was by the defendant, that the drawing of the firearm is indicative of an interest in firearms and that little weight can be given to the writing of “NSI” on the wall even on the assumption that it meant “national security interest”. The plaintiff’s response to this submission was that the defendant himself had acknowledged both the initials and words were written by him and that in effect the writing spelt out what the initials “NSI” stand for, namely, “National Security Interest”. I accept this submission. Further, the pictures of a “Kalashnikov” has a symbolism, as discussed above, beyond a mere interest in firearms, to a general association with ISIS.

73. [201]

    No misconduct was recorded against the defendant after that event.

74. [202]

    The defendant submitted that on 19 November 2019, the defendant was found not to meet the criteria for an application for an order under the CHRO. In fact, the entry referred to is a Corrective Services NSW “offender programs/services status report” in which an entry adjacent to “HRO process” was “does not meet the threshold”. Nothing meaningfully can be derived from that entry in the disposition of the present matter.

75. [203]

    In August 2020, the SPA initially determined to refuse the defendant parole on the basis that he presented an “unacceptable risk to community safety”, subject to review. On 1 December 2020, the SPA confirmed this decision. A “critical issue” in this decision was the SPA’s finding that the defendant, by his index offending and by continued behaviour in custody, demonstrated “violent extremism ideology”.

76. [204]

    He has at times self-referred for psychological services, however this appears to have been in the context of heightened periods of anxiety and paranoia with requests for medication, with no ongoing engagement.

77. [205]

    Upon his release the defendant planned to live with his Aunt and Uncle whose home was assessed as a suitable place for the defendant to reside. He reported that he had a plan for employment to work as a concrete renderer possibly engaging in work with his cousin. He also reported that he would like to be a gym trainer and has undertaken some vocational training in plastering and or English language.

SECTION 25(3) and SECTION 39(3) FACTORS

1. [206]

   Pursuant to ss 25(3) and 39(3) of the Act there are certain mandatory criteria to which the Court must have regard in addition to any other matter of which the Court considers is relevant.

2. [207]

   Further, In determining whether or not to make a CDO or an ESO (or an IDO or ISO) under the Act, the safety of the community must be the paramount consideration of the Court: ss 25(2) and 39(2): Ceissman at [22]; Naaman at [98].

Reports of any other assessment by a qualified psychiatrist or registered psychologist

1. [208]

   Many of the assessments made by Ms Abreu in the RAR have been earlier set out in this judgment in the context of the consideration as to whether the conditions for the making of the application were satisfied. However, it is useful to approach the RAR in a broader context for the purpose of considering this factor.

2. [209]

   The defendant placed particular reliance upon the following aspect of the RAR:

3. [210]

   The defendant also relied upon Ms Abreu’s assessment that the defendant’s idiosyncratic traits may lead to externalise or acting out behaviour in response to people exercising authority over him and that he may turn to drug use which will disinhibit him or may seek to use his religion to justify use of violence. Emphasis was placed upon the reference to the report of Dr Sweller who assessed the defendant’s risk of committing a violent offence as being attributed to a lack of emotional regulation skills or interpersonal functioning rather than due to an intended act of violent extremism, politically motivated violence or terrorism activity. Reference was also made to Ms Abreu’s statement that the defendant’s profile does not suggest an imminence of risk for religiously motivated violence.

4. [211]

   As will be discussed below, I do not consider that those references amply engage with the extent of the RAR undertaken by Ms Abreu or as previously mentioned that the various traits of the applicant including emotional regulation, whilst present, may themselves contribute to an amelioration of the risk.

5. [212]

   Ms Abreu applied the VERA-2R and Terrorist Radicalization Assessment Protocol - 18 (“TRAP-18”) in undertaking assessments.

6. [213]

   The defendant was assessed on the VERA-2R as being in the “Moderate-High” range risk profile for “extremist violent offending, particularly politically motivated violence or terrorism activity”. Ms Abreu’s appraisal of the relevant risk indicators may be summarised as follows:

   1. (1)

      Beliefs, Attitudes, Ideology:

   2. (2)

      Social context and intention:

   3. (3)

      History, action and capacity:

   4. (4)

      Commitment and motivation:

7. [214]

   As to protective factors which are assessed with the VERA-2R, Ms Abreu concluded that such factors were “limited” in respect of the defendant. His family support was referenced, but acknowledged to suffer longstanding volatilities, such that these family relationships are “insufficient as a protective factor in themselves”. Further, the defendant’s reluctance to actively seek out support and limited motivation to engage in behavioural change programs and support services available to him appears to deprive him of any protective factor in terms of motivation or treatment engagement.

8. [215]

   In detailing future risk scenarios, Ms Abreu made the following observations which are salient to the issues arising in this preliminary hearing:

   1. (1)

      In future, the defendant may seek to use his religion to justify his criminality and/or violent behaviour. It is likely that an act of violence in this instance would be more accurately attributed to his lack of emotional regulation skills and poor interpersonal functioning, rather than due to an intended act of violent extremism, politically motivated violence or terrorism activity.

   2. (2)

      He likely seeks social connections, including through online means, to increase his sense of self and belonging whilst also pursuing a sense of meaning in life and purpose though a closer connection to Islam. His risks will likely increase should he continue to attempt to establish and foster problematic connections online and offline, particularly given his susceptibility to influence and needs associated with seeking purpose and meaning in life.

   3. (3)

      His involvement in providing Da’wah and the potential influence he may have over others seen as vulnerable, also remains an area of concern given his rigid and uncompromising views of Islam and how it should be practiced. Despite his poor interpersonal functioning in real life, preaching his perspectives, beliefs and potential “call to arms online” may have significant capacity to influence and inspire the act from others.

9. [216]

   Ms Abreu ultimately concluded that the defendant’s presentation:

Results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence.

1. [217]

   In substance, the defendant’s submissions in this respect replicated those made with respect to whether the preconditions of the application have been met. It was submitted the VERA-2R tool does not assess the risk of a serious terrorist offence and did not establish a relationship between the moderate-high rating under the tool and the ultimate question to be decided by the Court. For reasons given earlier, I reject that submission. Similarly, I reject the submission of the defendant that the TRAP-18 is not relevant to the Court’s assessment of risk because the TRAP-18 is not an actuarial measure of violent risk and not predictive or indicative in nature.

Any report prepared by Corrective Services NSW or the Police as to the extent to which the offender can reasonably and practicably be managed in the community

1. [218]

   A report relevant to this consideration were prepared by Corrective Services NSW (by Shane Bagley from the Terrorism High Risk Offender Unit) and NSW Police (by Jimmy Wang from the High Risk Terrorist Offenders Unit).

2. [219]

   Each report outlines the conditions primarily enforced by each agency, considered by NSW Police to be “an absolutely minimum required for the effective management of the defendant in the community”, and by Corrective Services as “necessary and appropriate to ensure the safety and protection of the community and rehabilitation of the offender”.

3. [220]

   The Corrective Services’ Risk Management Report was prepared including having regard to two interviews which the defendant attended for the purpose of the report. His engagement disclosed mixed attitudes towards supervision and interventions in the community:

4. [221]

   Nonetheless, the plaintiff pointed out this Risk Management Report shows that since March 2020 the defendant’s behaviour in custody had stabilised and improved, that the defendant had proposed accommodation with his Aunt and Uncle which, as previously mentioned, was suitable and the Aunt and Uncle were supportive of him. The defendant submitted that a detailed supervision plan could be put in place to supervise the defendant.

5. [222]

   Similarly, the defendant submitted that a report prepared by NSW Police describes mechanisms by which the defendant may be managed in the community.

6. [223]

   Ultimately, the plaintiff was correct to submit that neither the NSW Police nor the Corrective Services report positively suggests the defendant cannot reasonably and practicably be managed in the community, provided the proposed conditions are imposed as part of an ESO.

7. [224]

   I also accept consideration raised by the plaintiff that the historical evidence concerning the defendant’s willingness to engage with such interventions in custody or in the community together with his anti-authoritarian attitudes warrants caution in the assessment of how reasonably and practicably he may ultimately be managed in the community by supervising authorities.

Any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community

1. [225]

   There is no report falling within this consideration. The defendant submitted that the absence of such report is suggestive that no such authority is of the view that the defendant cannot be managed in the community. I consider that no such inference may be drawn from the material presently before the Court.

Any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives

1. [226]

   The defendant’s current sentence of imprisonment is his first time in custody for any lengthy period. Community Corrections report that, prior to engagement with him for the purposes of parole, they had had no prior involvement with him.

2. [227]

   The Corrective Services material suggests that, on the basis of assessments focussed on the defendant’s ordinary criminogenic needs (conducted without access to information and background about the defendant’s apparent interest in Islamic State and violent extremism), he has, at least recently, been assessed as eligible to undertake the EQUIPS suite of programs. At no stage has he commenced any such program. He has either declined to participate at all or indicated a willingness to participate and then not followed through.

3. [228]

   The Corrective Services material also suggests that, while the defendant has at times acknowledged a role of drugs in his offending, he has failed to follow through on this by participating in any treatment. He has declined alcohol and drug intervention when offered, inconsistently reported the extent of his drug use while in custody and expressed the view he does not have a problem with drugs.

4. [229]

   As noted above, the defendant has at times self-referred for psychological services. However, this appears to have been in the context of heightened periods of anxiety and paranoia with requests for medication, with no ongoing engagement.

5. [230]

   In the course of his parole proceedings in 2020, the defendant had some engagement with a psychologist from the CVE team within Corrective Services NSW. The defendant’s engagement with this process was poor and discontinued because he ceased attending the initial appointments for the purpose of an initial comprehensive assessment. He reported disengaging because he felt offended by the process, perceiving the staff as hypocritical, racist, and telling him to change his religion.

6. [231]

   The defendant accepted that his attitude to authority may make him unwilling to participate in enforced rehabilitation but the evidence suggests that he is willing to take it on himself.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

1. [232]

   Ms Abreu suggests that, if the defendant remained in custody, his risk level may be reasonably moderated or mitigated if he engaged with intensive criminogenic needs programs. She specifically recommended the Proactive Integrated Support Model (“PRISM”) program in relation to his religious and political views, together with the Violent Offenders Therapeutic Program (“VOTP”) in relation to his risk and acceptance of violence. His participation in each program would, however, be voluntary.

2. [233]

   If the defendant was in the community under supervision, Ms Abreu noted in particular, the options of the PRISM program with psychologists and services and program officers, and the EQUIPS suite of programs. She describes “this treatment pathway would be of sufficient intensity to meet his assessed level of treatment need for both violence and general offending”.

3. [234]

   If the defendant was in the community, not under supervision under an order, then subject to any short remaining period of supervision under parole (if he is granted parole), from 7 December 2021 there will be no supervision, support or monitoring from Corrective Services NSW and unit agencies operating in conjunction with relevant agencies in relation to the Act (“THRO agencies”), and no active constraints or checks on the defendant’s conduct and risk factors.

4. [235]

   The RAR view of what is available is more guarded. Ms Abreu says that placement on a CDO with sufficient time may facilitate the defendant’s access to extensive custody group programs (should he consent).

5. [236]

   As Ms Abreu considered it important to note, the defendant has “historically been resistant and unreceptive to attempts to have him meaningfully engage with support services or behaviour change programs. It is likely that meaningful change in this area will likely take some time and require assertive case management”.

6. [237]

   The defendant has not previously undergone any period of community-based supervision and case management, and he does have a history of poor compliance with Court orders.

7. [238]

   “Assertive case management” appears to be a pre-requisite to any potential success of supervision in the community according to Ms Abreu, given the defendant’s poor history of engagement with treatments offered to him in custody and his general apparent lack of interest in treatment.

8. [239]

   The defendant’s criminal history discloses a pattern particularly of violent offending, but also of drug use. As Ms Abreu notes:

9. [240]

   To date, other than for a Health Survival Tips course, the defendant has not consented to participate in, or completed, any program. The defendant said he views such programs as attempts to try to change his religion. The CVE programs available both in custody and in the community are voluntary and require the participants’ consent.

10. [241]

    The defendant submitted that the availability of CVE programs is a neutral factor in selecting between an IDO or CDO if such orders were to be made.

11. [242]

    However, the defendant’s attitude to rehabilitation program is a factor relevant to the question of risk. The defendant’s reliance upon the existence of the New South Wales Engagement and Support Program which is a voluntary based management program suffers from the absence of evidence that the defendant does intend to engage in the program having regard to its voluntary nature.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history.

1. [243]

   The defendant’s criminal history discloses a pattern of violent offending, but also of drug use.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

1. [244]

   The Magistrate that sentenced the defendant on 14 December 2018 found special circumstances justifying an extended period of parole. His Honour expressed the view that the defendant’s mental health issues, his prospects of drug rehabilitation on parole and the fact that this was his first time in custody required a significant departure from the statutory ratio.

2. [245]

   When sentenced for the grievous bodily harm offence on 10 October 2019, the learned Magistrate expressed some concern that the sentence he was imposing “must consume” part of that non-parole period’.

Any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities

1. [246]

   The defendant submitted the supporting documentation shows that the defendant is a committed Muslim. It shows that he believes in the primacy of the word of Allah. Neither of these matters amount to support for engaging or participating in terrorism activities. I agree.

2. [247]

   However, in addition to the opinions of Ms Abreu in the RAR concerning the defendant’s beliefs or commitments, information relevant to this consideration is also contained in an additional psychological assessment report prepared by Dr Tamara Sweller, senior psychologist with Corrective Services NSW CVE Programs, dated 9 November 2020. Ms Abreu did not have access to this report at the time of preparing her initial report.

3. [248]

   Dr Sweller did not administer the VERA-2R tool in a manner such as to produce an assessment of the defendant’s risk profile on the tool. Dr Sweller nevertheless considered the defendant’s “risk promoting indicators”, “risk describing indicators”, and “risk mitigating factors” under the VERA-2R tool in a fashion consistent with Ms Abreu’s conclusions about his risk indicators and mitigating factors.

4. [249]

   Dr Sweller did however have the benefit of a series of interviews with the defendant, totalling some six and a half hours between June and October 2020 (before he withdrew his consent to participation).

5. [250]

   A significant aspect of Dr Sweller’s report is the defendant’s self-reports in interview about his religious ideology. For example, he reported:

   1. (1)

      He commenced engaging in research into Islam approximately 10 years ago, through internet searches and “people of knowledge” in order to find “the truth”.

   2. (2)

      Prior to entering into custody, he started to attend religious lectures at a mosque in Auburn, which resonated with him and he gained a sense of being understood. He subsequently attended the Masjid al-Noor, however he did not like it because they spoke only about what the scholars say and he only cared what “God and the messengers” said.

   3. (3)

      He followed the Prophet and the “righteous predecessors” as closely as possible, which Dr Sweller explains is reflective of the Salafi school of thought, though the defendant stated he does not follow a particular school of thought.

   4. (4)

      Prior to his incarceration he was “ignorant” in relation to Islam, and while in custody he has spent much of his time reading religious books in order to further his knowledge. He prays five times a day and has done so for the past 12 years, except during the period between 2016-2018 when he got “off track” with drug use.

   5. (5)

      He engages in Dawah interactions with inmates who have different religious beliefs, such that he preaches to them if they say or do anything that he believes is inconsistent with Islam. He identified that he has successfully converted two or three inmates during his incarceration.

6. [251]

   In addition to the psychologist’s reports, Dr Shanahan’s analysis of both statements made or authored by the defendant on various dates in 2018, 2019 and 2020, and of voluminous material located on the defendant’s mobile phones, Toshiba hard drive and social media accounts during 2017-2018 provides additional support for a finding that the defendant has in relatively recent times (prior to and during his incarceration) held beliefs and commitments that support engaging in participating in terrorism activities.

7. [252]

   Dr Shanahan was asked to opine on a significant volume of statements and material individually. In respect of a significant portion of those individual statements and material, he opined as to a clear link between the defendant’s statements and possessed material on the one hand, and the ideological position espoused by violent extremist groups such as Islamic State on the other. This may be illustrated by the following:

   1. (1)

      In respect of videos possessed by the defendant on the Toshiba hard drive in 2018 prior to his arrest in August: many of the videos are identified as associated with Islamic State in what may be described as promotion and propaganda, including videos in which terrorist attacks in the West are depicted while calls for people to conduct attacks in the West are made, including reference to Australia.

   2. (2)

      In respect of videos possessed and possibly posted by the defendant on his Facebook and Instagram accounts in 2018 shortly prior to his arrest in August: these include videos with content which promote conservative interpretations or forms of Islam, depict the use or encouragement of violence accompanied by nasheed songs and depict the “finger of tawheed” sign and words recognised as signs of loyalty to Islamic State.

   3. (3)

      In respect of the letter authored by the defendant in July 2019: Dr Shanahan concluded that the letter is consistent with the ideological view that there is a war on Islam and its followers, which is a fundamental argument espoused by jihadist groups such as al’Qa’ida and Islamic State.

   4. (4)

      In respect of the defendant’s tattoos of the word “jehad” and an AF-47 rifle with folded stock, Dr Shanahan opined that the weapon is a “mainstay of jihadist groups around the word” and that as Arabic transliteration means that “e” and “i” can sometimes be used interchangeably- “jehad” may in this context be understood to mean “jihad” and thus a religious obligation to undertaken armed action against designated enemies of Islam.

8. [253]

   I accept the submission by the plaintiff that the material, when taken as a whole, strongly supports the inference that, at least at the time of the making of the relevant statements between 2018 and 2020, when taken against the context of the of the possession of the relevant material from late 2017 and 2018, the defendant held ideological beliefs, consistent with the ideologies identified by Dr Shanahan in his assessment of his statements and material stated that support engaging or participation in terrorism activities.

9. [254]

   The defendant submitted that on the opinions expressed by Iman Kilani that a conclusion may not be reached as to the present day holding of those beliefs or ideologies or motivations. The relevant principles would suggest that those opinions are not relevant in that form to the assessment of risk, but in any event for the reasons I have already given if the opinions are intended to be expressed as expert opinions as to the holding of extremist views or ideologies or a motivation or intention to engage in violent extremism, politically motivated violence or terrorism activity, the case note reflecting that opinion can have little weight. Further, the opinions of the Iman Kilani; appear as no more than a “case note” in which very little is provided to support the opinions expressed.

10. [255]

    Noting the limitation to a weighing exercise which I have earlier discussed, the opinions expressed in the RAR and Dr Shanahan, having regard to the nature and context of the opinions expressed and the support of other relevant material which I have discussed, are of real significance in this preliminary hearing.

Any other information that is available as to the likelihood that the defendant will commit a serious terrorism offence

1. [256]

   The Court has earlier discussed the defendant’s travel to Gaziantep on the Turkish-Syria border in 2015.

2. [257]

   Gaziantep is explained by Dr Shanahan as having been “one of the hubs in southern Turkey from which jihadist foreign fighters were able to be smuggled into Syria to join groups including Islamic State”, though the timeframe for this status is not explicit, it appears to be before July 2016 based on the source referenced in the report.

3. [258]

   I agree with the submission for the plaintiff, that the defendant’s explanation for this trip is somewhat unconvincing.

4. [259]

   The Court has placed little weight on the association between the defendant and Mr Elmir in 2015. However, the defendant’s comment during the course of an interview with Community Corrections on 22 May 2020, to the effect that he did not think he knows anyone in the community who had been radicalised, but had “probably run into them in the community”, is of great significance.

Unacceptable Risk

1. [260]

   Having regard to the aforementioned discussion, I consider that the matters alleged by the plaintiff, if proven, are capable of establishing that, for the purposes of s 34(1)(d), the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under an order. Further, not for the purposes of s 41(b), I find that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO.

2. [261]

   As earlier mentioned, Ms Abreu applied the VERA-2R and TRAP-18 in undertaking assessments of the defendant.

3. [262]

   The defendant was assessed in the TRAP-18 report, as warranting ongoing monitoring and active case management in relation to the warning behaviours and distal characteristics. It was correctly submitted by the plaintiff that this a tool which is directed at the risks which the defendant stated had not been addressed.

4. [263]

   The following factors require emphasis in these respects:

   1. (1)

      The defendant was assessed in the RAR as currently posing a moderate-high risk of engaging in violent extremism, politically motivated violence or terrorism activity. The Court has earlier discussed the significance of this report.

   2. (2)

      The conclusion is not diminished by the assessment deriving from a relevant psychological assessment tool, VERA-2E applied by an expert clinician. Of particular note, in that respect, is the Terrorism (High Risk Offenders) Regulation 2018 (NSW) (“the Regulation”). Clause 9 of the Regulation provides the bodies of knowledge for the purposes of the definition of a relevant expert in s 4 of the Act. Clause 9(1)(c) deals specifically in that context with training in the use of VERA-2R and is in the following terms:

   3. (3)

      In Fayad at [225], the author of the risk report changed her initial assessment to the “high-risk category” after considering new material. The author identified that the original assessment “underestimated” the defendant’s risk of engaging in violent extremist behaviours. The plaintiff placed emphasis on the words “high-risk category”, as it was submitted that they are almost identical to the words the defendant sought to criticise in this case.

   4. (4)

      The RAR identifies an absence of protective factors that might mitigate the defendant’s risk of engagement and/or further radicalisation. The vulnerabilities the defendant displays represent a potentially increased risk and/or imminence of an act of extremist violence. This includes the defendant’s continued alignment with beliefs and attitudes that justify violence on the basis of religious matters, the verbalising of these beliefs, continued perception of being mistreated by others due to his religion and/or race, seeking out extremist material and connections with individuals known to have proselytise extremist views, engagement in illicit substances, a turbulent family dynamic, increase in his threats of violence and his reactivity to grievances and unreceptiveness to engage with support services.

   5. (5)

      The defendant not only has a history of making threats of violence of a kind that supports terrorist acts or violent extremism but also discloses a pattern of violent offending and drug use.

   6. (6)

      It may be noted in that respect that, as earlier observed:

   7. (7)

      The defendant has a demonstrated propensity to commit or attempt to commit actual violence and intimidation, including against public authority figures such as police and corrective services officers, in the context of perceived grievances or injustices towards him on the basis of his religion.

   8. (8)

      In the period immediately prior his entry into custody the defendant both possessed and shared publicly a substantial volume of extremist religious material, including violent extremist and terrorism related material.

   9. (9)

      The defendant deliberately authored a letter expressing beliefs and commitments consistent with that material; years later made threats of cutting officers’ throats in response to a perceived mishandling of his religious books; and has during his time in custody (self-reportedly) further developed his commitment to the Islamic faith, suggestive that he has maintained extremist religious beliefs over a number of years.

   10. (10)

       It follows that the defendant’s acts or conduct give risk to a real possibility that his belief extends to beliefs that support engagement in conduct that would amount to a serious terrorism offence.

   11. (11)

       I agree with the submission for the plaintiff, and as earlier discussed, that the defendant has displayed, and continues to display, limited to no insight into the need for interventions targeted to his criminogenic needs. As earlier mentioned, the defendant has declined alcohol and drug intervention when offered, and his engagement with the CVE team within Corrective Services NSW was poor and discontinued.

   12. (12)

       The defendant has taken no steps to engage in relevant interventions and has expressed views that he does not have any underlying criminogenic issues, and/or does not require any external assistance with any such issues.

   13. (13)

       The defendant’s willingness and ability to comply with the requisite intensive mandatory supervision and case management in the community is untested, and he has breached bail conditions in the past.

   14. (14)

       At this stage, and until an improvement in the prospects of the defendant’s compliance with mandatory supervision and intensive case management is improved through preliminary engagement with relevant interventions in custody, an ESO will, in my view, be inadequate to contain his risk.

Discretion to Make an IDO or ISO

1. [264]

   The defendant submitted that, if satisfied at the preliminary stage of an unacceptable risk, it is submitted that the Court would not make an IDO as it should not be satisfied that his incarceration is necessary, particularly in circumstances where no expert says that it is. The experts say that intervention can be provided in the community. On the evidence of Ms Prince, incarceration is not necessary for treatment as treatment options are available in the community.

2. [265]

   It was submitted by the defendant that the Court would exercise discretion to make an ISO rather than an IDO, for the following reasons:

   1. (1)

      Discretion is informed by the common law right to liberty: State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128 at [25].

   2. (2)

      The Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence at the final hearing based on the evidence.

   3. (3)

      In relation to unacceptable risk of committing a serious terrorism offence it was submitted that the Court would be satisfied that the agreed conditions would prevent the commission of a serious terrorism offence and that a breach of the conditions would be detected by those supervising him.

   4. (4)

      There is nothing about the matters alleged in the supporting documentation which suggest that upon release, the defendant poses an imminent risk of committing a serious terrorism offence if not kept in detention.

   5. (5)

      While the safety of the community is a paramount consideration (Tillman at [46]), there is no general presumption in favour of maintaining the custodial sentence when interim relief is available. In support of this submissions reference was made to Ms Abreu's RAR at page B24 par 120.

   6. (6)

      Any act of violence by the defendant is not likely to be in pursuit of any extremist or violent ideology, but rather, sourced in basic psychological features which don't involve any such ideology.

   7. (7)

      An advantage of an ISO is that it is possible that at the final hearing, the Court will not be satisfied that it should make an CDO, but it will be inclined to make an ESO, and if the defendant has satisfactorily completed a period of supervised release in the community under an ISO, that will provide some assurance to the Court that it can exercise its discretion to make an ESO rather than a CDO.

3. [266]

   However, in my view, strong discretionary factors, in fact, point to the exercise of the Court’s discretion to make an IDO.

4. [267]

   The starting point is the Court’s determination that the matters alleged in the supporting document would, if proven, justify the making of a CDO.

5. [268]

   When that consideration is combined with the consideration of community safety required by s 39(2) of the Act that factor is amplified.

6. [269]

   The proper exercise of a decision to ensure community safety in accordance with the objects of the Act in this case, pending final hearing and the availability of the expert reports is, in my view, the imposition of an IDO.

7. [270]

   In addition to the factors I have taken into account in reaching a conclusion as to unacceptable risk, the following are significant in this respect:

   1. (1)

      The defendant has untreated criminal needs including a tendency of violence and aggression that are accompanied with extremist threats or references to extremist ideology which are triggered by substance abuse,

   2. (2)

      The defendant has demonstrated a propensity to commit or threaten to commit actual violence towards law enforcement figures and public authority figures, expressing grievances as to way he has been handled which he regards as an attack on his religion.

   3. (3)

      The defendant has not completed any programmes that would address his risk or criminogenic needs.

   4. (4)

      The defendant was assessed as having a medium to high risk of engaging in in terrorism activity and a high risk of re-offending.

   5. (5)

      The defendant has been refused parole on a number of occasions by the State Parole Authority Board, as the Board was not satisfied that the defendant would not engage, incite or assist others in engaging in terrorist acts or violent extremism. The plaintiff submitted this was of some relevance, however, conceded that it is not the same test that the Court has to apply.

   6. (6)

      An ISO, with the accompanying proposed conditions is, in my view, insufficient, on the material presently before the Court, to deal with the risk as found by the Court.

8. [271]

   In the circumstances, it is appropriate to make an IDO and make orders for the appointment of experts, namely, a qualified psychiatrist and a registered psychologist.