State of New South Wales v Liddington (Final)

1. [1]

   By summons dated 20 September 2024, the State of New South Wales as plaintiff, seeks orders that the defendant Desmond Liddington be subject to an Extended Supervision Order (“ESO”) and comply with certain conditions whilst subject to that ESO. The orders are sought pursuant the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”).

2. [2]

   On 19 December 2024 I heard the plaintiff’s application for an interim supervision order (“ISO”). On 28 January 2025, I made orders pursuant to s 27 of the THRO Act that the defendant be subject to an ISO for a period of 28 days commencing 3 February 2025, and that the defendant comply with certain conditions whilst subject to the ISO. I also ordered, pursuant to s 24(5) of the THRO Act, that two qualified psychologists or psychiatrists (or any combination of such persons) examine the defendant and provide a report to the court of the results of those examinations and that the defendant attend such examinations: State of NSW v Liddington (Preliminary) [2025] NSWSC 10 [228] (“the preliminary reasons”).

3. [3]

   On 25 February 2025, Yehia J ordered that the ISO be extended for a period of 28 days commencing on 3 March 2025, upon the expiry of the initial ISO and that the defendant comply with the conditions of the ISO I imposed.

4. [4]

   On 25 March 2025, Yehia J ordered that ISO again be extended commencing on 31 March 2025 upon the expiry of the ISO made on 25 February and that the defendant comply with those conditions.

5. [5]

   On 23 April 2025, I ordered that the ISO again be extended commencing on 27 April 2025 and expiring on 3 May 2025 and that the defendant comply with the conditions originally imposed. This extension was the last that could be made as it meant the ISO had been in place for 3 months: s 28 (3) of the THRO Act.

The structure of these reasons

1. [6]

   In the preliminary reasons, I recited and reviewed the evidence then relied upon by the plaintiff. As I said at the conclusion of the hearing of this application, those reasons were extensive, perhaps more extensive than is usual on preliminary applications having regard to the nature of the test for interim relief under the THRO Act.

2. [7]

   Much of the evidence tendered at the preliminary hearing is again relied upon in support of the application for the ESO. I do not intend to repeat the recitation of the evidence already in the preliminary reasons, or my analysis of the evidence there presented and relied upon again on this application. These reasons should therefore be read in conjunction with the preliminary reasons. I will cross-reference to parts of the preliminary reasons where necessary.

3. [8]

   Agreed facts relied upon in this application are contained in both the Statement of Agreed Facts as tendered in the preliminary hearing, and a Supplementary Statement of Agreed Facts.

4. [9]

   In accordance with the orders I made in the preliminary reasons, the defendant was examined by two psychologists, Dr Katie Seidler and Dr Chelsey Dewson. I will incorporate in these reasons where appropriate, relevant agreed summaries of the expert opinions of Dr Seidler and Dr Dewson.

5. [10]

   In these reasons, after discussing the statutory framework and relevant principles, I will set out the evidence relied on by the plaintiff and the defendant. I will then set out the submissions of the parties and consider whether the relief sought should be granted.

6. [11]

   The parties have, necessarily, placed before the court a significant amount of material. It is not possible to reference it all. I have had the considerable benefit of receiving extensive written submissions as follows:

   1. (1)

      Submissions of State of NSW dated 18 March 2025 (“PWS”);

   2. (2)

      Final Hearing: Submissions for the Defendant dated 24 March 2025 (“DWS”);

   3. (3)

      Reply Submissions of State of NSW dated 27 March 2025 (“PRS”);

   4. (4)

      Submissions of NSW Following the Hearing dated 4 April 2025 (“PFS”); and

   5. (5)

      Final Hearing: Submissions for the Defendant- the Oral Evidence dated 4 April 2025 “(DFS”).

7. [12]

   I have read and had regard to all those submissions and the evidence before me.

Statutory framework

1. [13]

   This Court may make an ESO under s 25 of the THRO Act if it is satisfied of the threshold requirements in s 20 of that Act. Section 20 provides:

2. [14]

   It is conceded by the defendant, and the facts as agreed establish, that the preconditions to bring the application are met. That is, the defendant is an ‘eligible offender’ who qualifies as a “convicted NSW terrorism activity offender”. This is because, at the time the proceedings were filed, the defendant was serving a sentence of imprisonment for a NSW indictable offence and had previously made statements advocating support for, and had associations with, organisations advocating support for violent extremism (see ss 4 and 10(1)(c) of the THRO Act). [1]

3. [15]

   It is also conceded by the defendant that the evidence of the two court appointed experts establishes that the defendant poses a risk of committing a terrorism offence. The issue on this application is whether the Court is satisfied to the necessary high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

4. [16]

   I must have regard to the objects of the THRO Act. They are, relevantly, to provide for the extended supervision of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community: s 3(1). A further object of the Act is to encourage the offenders to undertake rehabilitation: s 3(2).

5. [17]

   I keep in mind that in determining whether to make an ESO, the safety of the community must be the paramount consideration: s 25(2) THRO Act.

Legal Principles

1. [18]

   In State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (“Naaman (No 2)”), the Court of Appeal (Basten, Macfarlan and Leeming JJA) considered at [29] s 20(d) of the THRO Act:

2. [19]

   Section 25 of the THRO Act sets out mandatory considerations that the Court must have regard to, in addition to any other matters it considers relevant, when determining whether to make an ESO. I will refer to some background, the evidence relied upon by each party and then assess these mandatory considerations.

3. [20]

   Before leaving the statutory framework and legal principles, reference must be made to the definition of “serious terrorism offence” in s 4(1) of the THRO Act. As Harrison J (as the Chief Judge at Common Law then was) said in State of New South Wales v Galvin [2022] NSWSC 84 (“Galvin”) at [23]:

4. [21]

   The definition is:

5. [22]

   This definition is significant in this matter because the evidence establishes that the defendant poses a risk of committing an offence in certain circumstances. So much appears to be conceded by the defendant. The question is whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

6. [23]

   A serious terrorism offence involving a “terrorist act” must include the necessary intentions required by s 100.1 of the Criminal Code Act 1995 (Cth) (“Criminal Code”). Relevantly, that section provides:

7. [24]

   Importantly, the definition requires both the intention of advancing a political, religious or ideological cause and the intention of coercing or influencing by intimidation a government or intimidating the public or a section of it. As the plaintiff has accepted, it is possible for ideologically motivated violence to involve the first intention, but not the second.

8. [25]

   I accept, as the plaintiff submits, that conduct amounting to a serious terrorism offence covers a broad range of conduct and does not require the commission of an act of violence: State of NSW v Elmir (Final) [2019] NSWSC 1867 per Walton J at [153]. The plaintiff also makes reference to the observations of Johnson J in State of NSW v Cheema (Preliminary) [2020] NSWSC 876 (“Cheema (Preliminary)”) at [84] where his Honour said, of the breadth of the terrorism offences under the Commonwealth Criminal Code:

9. [26]

   It is apparent from the materials before the Court on this application, including the evidence of the defendant, and expressly accepted in the DWS that the defendant holds “...a world view that is substantially informed by perceptions around race, nationalism and scepticism of government. His expression of such views…. are, at times, offensive”. [2] However, even if those statements and beliefs are “emotive and repellent” (which the defendant also accepts), the question is whether on the whole of the evidence, they lead to a conclusion that the defendant poses the relevant unacceptable risk.

10. [27]

    I keep in mind the distinction drawn by Lonergan J in State of NSW v Kiskonen (Preliminary) [2021] NSWSC 915 at [87] between extreme political views advocating political change, and extremist views advocating illegal violence. The plaintiff’s case is that both the defendant’s statements and the organisations which he supports are not confined to the former category.

11. [28]

    The evidence discloses that the defendant has had associations with certain persons and groups. Most of those groups are not operating in an organised or cohesive way at the present time. I will go into more detail about this when referring to the evidence of Dr Droogan below. He says that even if it cannot be said that some of these groups exist as organisations, there is some evidence of material existing online which reflects the extreme views propagated by them when they did exist. The plaintiff refers to the observations of the High Court in The Queen v Abdirahman-Khalif (2002) 271 CLR 265 (“Abdirahman-Khalif”) at [49] that:

12. [29]

    The assessment of whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision is a forward-looking risk assessment. It is an enquiry which requires consideration of the “inherently uncertain future” as to whether something will occur: Naaman (No 2) at [29].

13. [30]

    Whilst “mere speculation” cannot be enough, there will be an element of speculation by reason of the imprecise and uncertain nature inherent in the assessment of the likely course of future events, using information based at least in part on past events. The Court must look forward and consider the risk to the safety of the community in a scenario in which the defendant is supervised, and one in which he is not. [3]

14. [31]

    The plaintiff referred to observations of Dhanji J in Attorney-General of the Commonwealth of Australia v Amin (Final) [2023] NSWSC 1586 where his Honour referred to the approach of a court undertaking a risk assessment and the decision of Basten J in CXZ v Children’s Guardian [2020] NSWCA 338. Dhanji J was considering an application for an ESO under analogous Commonwealth legislation and at [71] said:

15. [32]

    The assessment to be made is whether the risk posed by the defendant of committing a serious terrorism offence is “unacceptable”. As the defendant submits, this implicitly recognises that the test does not call for the elimination of all risk. What is an unacceptable risk may require a balancing of factors, including the perceived likelihood of recidivism, the relative seriousness of the conduct and offences that may be committed absent the supervision of the defendant. It is for the plaintiff to establish to a high degree of probability that the risk is unacceptable. A person may pose an unacceptable risk, even if the likelihood of them committing a serious terrorism offence is determined to be low: Kamm v State of New South Wales (Final) [2016] NSWSC 1 per Harrison J at [43].

16. [33]

    It is also necessary to observe that it is the risk posed by the defendant “if unsupervised” which must be considered. If the risk can be eliminated or mitigated such that it is acceptable, by supervision of the defendant and the imposition of appropriate conditions, this fulfills the objects of the THRO Act to protect the community and also encourage the rehabilitation of the defendant.

17. [34]

    There is no requirement for the Court to specify the precise serious terrorism offence as part of its risk assessment under the act: Cheema (Preliminary); Galvin. It is sufficient if the Court is satisfied that the defendant poses an unacceptable risk of committing a serious terrorism offence.

Evidence relied on by the Plaintiff

1. [35]

   The Plaintiff read the following affidavits at the final hearing:

2. [36]

   The plaintiff tendered the following exhibits without objection:

3. [37]

   The Plaintiff required the Defendant and his partner Ms Fowler for cross-examination.

Evidence relied on by the Defendant

1. [38]

   The Defendant read the following affidavits at the final hearing:

2. [39]

   The Defendant tendered the following exhibits without objection:

3. [40]

   The Defendant required the following witnesses for cross-examination:

Factual matters

1. [41]

   At [27] - [34] of the preliminary judgment, I set out the background of the defendant.

2. [42]

   It is relevant to note that the defendant is currently serving a 12-month Intensive Corrections Order (“ICO”) which expires on 30 May 2025. That ICO was imposed for high range prescribed concentration of alcohol (“PCA”) and drive recklessly offences. He is also serving a 12-month Community Corrections Order (“CCO”) expiring on 30 May 2025 imposed for two offences of intimidation of a police officer. On 3 June 2024 the defendant was sentenced to a further ICO for a period of 2 years commencing 30 November 2024 and expiring on 29 November 2026 for 2 counts of stalk/intimidate.

3. [43]

   He was released from custody on 3 February 2025 at the expiry of his custodial sentence for the index offending. Since his release he has been subject to the ISO. He has always complied with the conditions of the ISO. Sometimes, that compliance has been difficult. For example, on one occasion he was with his partner dropping her son to school and he needed to go to the toilet. This meant he had to stop on what had been an authorised travel route. By the strict terms of the conditions, this required him to get permission. This involved him having to take photos of where he was and send them to his supervising officer. The whole process took about 10 minutes. He now takes a large bottle with him to urinate in.

4. [44]

   On another occasion, his partner’s dog ran from the house. Because he was not scheduled to leave the house, he could not chase the dog and had to call a neighbour to retrieve it.

5. [45]

   The defendant has not been able to have any contact with his brother, Jeremy Liddington. That is because his brother holds similar extremist views to the defendant and contact with such persons was prohibited by the conditions of the ISO.

6. [46]

   I mention these events to indicate that the defendant has, in so far as the evidence discloses, done everything he can to ensure he has complied with the stringent conditions of the ISO. There is no reason to think that if an ESO was made, he would fail to comply with any conditions imposed.

7. [47]

   The defendant gave evidence on this application and was cross-examined. He appeared to be making a genuine effort to answer all the questions asked of him, including some questions going to private and sensitive matters. I formed the impression that, whilst not a sophisticated man, he was passionate about his beliefs. He maintains certain beliefs which, objectively viewed, are racist and offensive. He was quite open and forthright about those views and beliefs. Whilst his frankness was to his credit, the nature of some of those views and beliefs and his maintenance of them is concerning and relevant to the assessment of whether he poses the relevant risk.

8. [48]

   As the plaintiff accepts in its closing written submissions following the hearing, the defendant was forthright and made appropriate concessions against his own interests. The plaintiff accepts this is to the defendant’s credit. However, the plaintiff also submitted that the defendant engaged in a significant degree of impression management and gave evidence which on some occasions was implausible. I agree with this submission.

9. [49]

   The plaintiff does not submit that the defendant gave deliberately false evidence, however, it submits it was possible this was the case, and this possibility is relevant to the Court assessing the risk posed by him. I find this submission difficult to accept. I do think that on some occasions he was downplaying the activities of certain groups he had been associated with, for example by referring to his time spent with other members of Firm 22 where they “just got together and had BBQ’s”. [4] I do not consider; however, that he was deliberately giving false evidence. I consider in some instances he made statements which he then backtracked from when challenged in cross-examination. [5] However, I formed the view that those misstatements or corrections were, overall, acceptances by him of errors he had made, or corrections to things he did not remember due to the effluxion of time. For example, when responding to a suggestion that it would not be good for his case if he was a leader of the Lads Society and nurtured young men, he said: “Look, if I could remember correctly, I’d-I’d tell you straight out. I’m not going to hide nothing. I just don’t really recall that. I went to a few barbecues there, organised a couple”. [6]

10. [50]

    I do not consider that the mere possibility that he was giving false evidence can weigh in any material way on the assessment of the risk he poses. I may be wrong on my assessment of him having seen him give evidence, but I act upon my assessment of him as a witness as part of the overall determination as to whether he poses the relevant risk. To act as the plaintiff suggests and discount my assessment of his credibility on the possibility I am wrong in that assessment, means the assessment may as well not be made at all.

11. [51]

    I did not form the view that the defendant was seeking to minimise or sanitise his beliefs. He unapologetically maintains his belief with respect to race issues. He said that he has, over time, formed the view that violence is not a legitimate or useful method of achieving political change. [7]

12. [52]

    Overall, I formed the view that whilst he did engage in some impression management, he did his best to give truthful answers to the questions asked of him. I will return to aspects of the defendant’s evidence as is relevant when dealing with the mandatory considerations under s 25(3) of the THRO Act, including his associations with persons and groups, both past and prospective.

13. [53]

    The defendant’s partner, Ms Fowler, also gave evidence on the application. The plaintiff maintains that she at times acted as a conduit for communications between the defendant and known extremist associates whilst he was in custody and she is therefore a negative impact on the risk of the defendant committing a serious terrorism offence.

14. [54]

    The plaintiff ultimately accepted, however, on balance that the relationship between the defendant and Ms Fowler is more positive than negative and its impact on the defendant can be seen as reducing his risk of re-offending. [8] I accept the existence of the relationship not only reduces the risk of general re-offending but also reduces the risk of him committing a serious terrorism offence. The defendant said he does not want to associate with a group that promotes violent extremism because he would be kicked out of the house by Ms Fowler and he doesn’t want to lose his family. In his words: “Life’s good. I don’t want to fuck that up”. [9]

15. [55]

    I found that there were parts of Ms Fowler’s evidence which were difficult to accept. I have reservations with respect to her evidence about communications, or attempted communications, with Thomas Sewell. I do not accept that she attempted to contact him by text for the purposes of obtaining legal advice from him. [10] Her evidence in this regard was contrary to other objective evidence which indicated that she was trying to contact Mr Sewell on the defendant’s behalf as the defendant was a National Security Interest Inmate (“NSI”). [11]

16. [56]

    I also do not accept her evidence about the frequency of arguments between her and the defendant. Her evidence that there has not been a lot of conflict in their relationship [12] is contrary to the defendant’s evidence that they have arguments all the time, cool off and come back to speak to each other. [13]

17. [57]

    The plaintiff does not submit that I should find that Ms Fowler gave deliberately false evidence, rather that the inconsistency between that evidence and the other objective material means I should treat her evidence generally with more caution. I accept this submission. I felt she was at times giving evidence she thought would assist the defendant and was cautious in accepting things that she thought might harm his case.

18. [58]

    Overall, I consider the relationship between the defendant and Ms Fowler is a strong one. I accept the evidence of each of the defendant and Ms Fowler that he has become an important part of the family, including building a relationship with her children. I consider it to be a protective factor in the sense I have identified.

19. [59]

    The plaintiff also submits that there is a possibility that the relationship will end. It submits if this occurs the risk of the defendant falling back into association with extremist individuals or organisations, and thus the risk of him committing a serious terrorism offence, will increase. The plaintiff says the possibility of the relationship ending is a relevant matter to consider in the forward-looking risk assessment the Court is engaged in. I accept that submission. The relationship with Ms Fowler and her children, and the defendant’s fear of losing that, is the strongest protective factor mitigating the risk of him re-offending.

Mandatory Statutory Considerations

1. [60]

   Dr Seidler, a Clinical and Forensic Psychiatrist, was requested to examine the defendant to provide a report for this Court. In making her recommendations, Dr Seidler relied on an online examination via Coviu [14] and a three-and-a-half-hour phone call on 24 February 2025 and independently completed psychometric testing by Mr Liddington. The semi-structured interview, psychometric testing, a review of documentation made available to her and an assessment of risk form the basis of Dr Seidler’s psychological risk assessment report.

2. [61]

   By way of background, Dr Seidler noted that the defendant had "a difficult start in life", followed by a lengthy history of undiagnosed anxiety and other mental health difficulties, in which context he abused alcohol as a form of ‘self-medication'.

3. [62]

   During the interview, the defendant reported that he was first exposed to the white power movement and extreme right-wing thinking when he was incarcerated in Western Australia. At that time, the defendant was already "familiar'' with the ideology, and had some support for it based on "distorted beliefs about Aboriginal people" he had formed during his upbringing. Dr Seidler noted that the defendant's support for the ideology had continued throughout his adulthood as he "found a sense of belonging, acceptance and camaraderie that had been absent in his life before this…but it does not appear that the politics of such organisations was ever a strong driver for Mr Liddington".

4. [63]

   Dr Seidler considered that the defendant would meet the criteria for a diagnosis of posttraumatic stress disorder (“PTSD”) with associated anxiety. This had developed in response to the defendant’s traumas in his childhood and whilst incarcerated in Western Australia.

5. [64]

   Dr Seidler also noted that the defendant had a long history of Alcohol Abuse Disorder, which has impaired the defendant’s functioning and contributed to the majority of the defendant’s offending behaviour. Dr Seidler considered the condition was currently in remission, but there remained a risk of relapse, particularly if the defendant was not subject to some external control.

6. [65]

   Dr Seidler noted that the defendant reported a single episode of Major Depression in the past, however this did not appear to be a current concern. It was also noted that the defendant presented with notable traits of Antisocial Personality Disorder, though Dr Seidler opined that she could not confidently diagnose that condition.

7. [66]

   Dr Seidler administered several clinical and offence specific assessment tools, noting that they are imperfect tools and should not be relied on solely in considering an individual’s risk.

8. [67]

   The Violence Risk Scale, Version 2 (“VRS-2”) was used to assess the defendant’s risk of future violent offending. His results placed him in the ‘moderate range’, with 12.9% of similar scoring offenders in Canada being convicted for a further violence offence within 3 years, and 23.2% being convicted of a further violence offence within 5 years. The defendant's most salient identified risk domains were Criminal Peers, Emotional Control, Substance-Related Problems, Violence Cycle, and impulsivity.

9. [68]

   The Violent Extremism Risk Assessment – Version 2 (“VERA-2R”) was administered for the purposes of conducting a meaningful analysis of an individual’s possible risk in conjunction with other information about the defendant’s history and functioning and the various ways in which any identified risk could be managed or intervened in. Dr Seidler warned that the VERA-2R cannot and should not be used for the purposes of a definitive risk prediction.

10. [69]

    The indicators of VERA-2R fall into 5 domains:

    1. (1)

       Beliefs, Attitudes and Ideology;

    2. (2)

       Social Context and Intention;

    3. (3)

       History, Action and Capacity;

    4. (4)

       Commitment and Motivation; and

    5. (5)

       Risk Mitigating Indicators.

11. [70]

    Dr Seidler noted that with respect to his beliefs, attitudes and ideology the defendant became aligned with extreme right-wing ideology early in adulthood, which provided a direction for his strong sense of resentment, grievance and anger in relation to the manner in which he had been treated by others. Dr Seidler commented that during his younger years, he identified strongly with an ideology that justified violence, ostracised and dehumanised others. Whilst Dr Seidler noted that there had been a softening in such views for the defendant in recent years, which was seemingly a function of incarceration, maturity, life experience and exposure to psychological therapy, there remained risk due to the defendant's unresolved personal grievances, him being easily triggered to anger and resentment, and his continuation to promote and prioritise the interests of White Anglo­ Australians.

12. [71]

    Risk was also identified with respect of the defendant’s “Social Context and Intention Factors”, including that he had previously accessed, sought and consumed material promoting extreme right-wing ideology; sought contact with others sharing extreme right-wing ideology; and had formal connections with groups and organisations with extremist ideology. The defendant also expressed a desire to reconnect with his ideological peers going forward, though he had some insight into potential negative influences. It was noted that there was no evidence that the defendant had ever been involved in any planning or preparation for an act of violent extremism or that he had ever identified a specific target for such an action.

13. [72]

    As to risk indicators based on the defendant’s “History, Action and Capacity”, Dr Seidler noted that the defendant had been exposed to extreme right-wing ideology and teachings (online and literature); had an extensive network of peer connections with others supporting extreme right-wing ideology and potentially also violent extremism; and was a leader within the subculture (formal and informal). It was also noted that the defendant had the "social and intellectual resources to participate in, encourage, direct or incite an act of violent extremism". The “Commitment and Motivation Factors” which were identified as being relevant for the defendant included that he was motivated by camaraderie, group belonging and acquisition of status.

14. [73]

    Dr Seidler identified an improvement in “Protective Factors” due to self-reported distancing from extreme-right wing ideology, his engagement in psychological treatment, rejection of political violence and the support of his partner, Ms Fowler. It was noted however that the defendant was yet to develop a repertoire of strategies for dealing with challenges without violence and that his partner did not set limits on his expressions of problematic beliefs on gaol phone calls, although, on Dr Seidler's understanding, Ms Fowler did not condone violence. Dr Seidler said that the protective factors were not considered sufficient to mitigate the defendant’s “evident risks”.

15. [74]

    The Structured Assessment of Protective Factors for Violence Risk (“SAPROF”) was administered for the purpose of evaluating personal and environmental factors which reduce the risk of future violent behaviour. The assessment identified that the defendant received maximum protection benefit from “the presence of strong external controls on the basis of the various orders he is subject to”. Although other protective benefits were identified, they were “not strong or well developed at the present time”.

16. [75]

    The Terrorist Radicalisation Assessment Protocol- 18 (“TRAP-18”) was administered to assess the defendant’s risk of lone-actor violent extremism. It is not an actuarial measure and is not designed to be “scored” or interpreted in reference to norms. The defendant’s profile revealed he did not present with any proximal warning indicators, with the exception of partial evidence presented for a “desire to identify with a warrior mentality or extremist group as an agent for change”. There were also a number of distal indicators historically present in the defendant including personal grievance/moral outrage, adherence to an extremist and violent ideology, rigid patterns of thinking and past criminal violence.

17. [76]

    Dr Seidler concluded that the defendant presented with a “number of risks relating to future acts of violent extremism”. Dr Seidler acknowledged that although the risks were “not significant in number or extent if acted upon they may result in a serious terrorism offence”.

18. [77]

    In making this determination, Dr Seidler considered that:

19. [78]

    Dr Seidler considered that it was not possible to quantify or qualitatively describe the likelihood of the defendant committing a serious terrorism offence. Dr Seidler opined the risk of the defendant committing such an act could include the following behaviours:

20. [79]

    Dr Seidler considered that it was possible, though perhaps less likely that the defendant would be engaged in committing a terrorist act himself. Rather, the defendant’s risk related more to group-based violence.

21. [80]

    Dr Seidler opined that, if the defendant’s risk were to manifest, it is likely that this risk scenario would occur in the context of the defendant’s peer associations, who support an extremist ideology and engaging in violent extremism, accompanied by a deterioration in the defendant’s functioning. This may include “a breakdown of his intimate partnership, a disengagement from support or rehabilitation services, a deterioration in his mental health and an increase in his alcohol abuse”.

22. [81]

    Dr Seidler also noted that the most likely risk of the defendant committing a serious terrorism offence related to him being involved in a terrorist group or organisation. Whilst Dr Seidler noted that the defendant had never been involved in such a group before, the defendant had affiliations and connections with groups that support such ideology and may “reasonably progress to being identified as a proscribed group”.

23. [82]

    Dr Seidler considered that an ESO of a 12-month duration would be appropriate. She noted that this duration would provide sufficient time for the defendant to “demonstrate and sustain the change process that has already begun and to engage in behaviour that alleviates concern about risk and provides some confident in relation to his capacity to mitigate risk”.

24. [83]

    Dr Seidler opined that should an ESO be made, the conditions imposed on the defendant’s ISO were “in large part… appropriate and relevant for reducing risk, at least externally”.

25. [84]

    Dr Seidler considered that if an ESO was to adversely impact Mr Liddington’s ability for prosocial and productive reintegration into the community or opportunities for important relationship and skills development, she would consider the ESO to be “antithetical to the intended purpose and possibly counter-therapeutic in relation to the management of risk”.

26. [85]

    Dr Seidler was of the view that the defendant would benefit from ongoing psychological intervention. In particular, Dr Seidler opined that ongoing interventions should focus on challenging and critiquing the defendant’s thinking, developing his consequential reasoning skills and prosocial personal values, improving his communication and relationship skills, reinforcing appropriate self-affect and behaviour management skills, and addressing a history of alcohol abuse.

27. [86]

    Dr Seidler noted that, whilst the defendant had expressed a willingness to comply with any conditions imposed, he did not consider that there was a need for such management and expressed that he would likely become resentful if the conditions limited his ability to reintegrate into the community. However, Dr Seidler noted that “the conditions of the ISO, do not, in and of themselves, create unnecessary restrictions and limitations and there is scope within the conditions for [the defendant] to participate in the community”.

28. [87]

    Dr Seidler expressed opinions on the conditions of the ISO. Obviously, this was on the basis that these, or analogous, conditions would be imposed if an ESO was ordered.

29. [88]

    Dr Seidler gave evidence at the hearing and was cross-examined. She was an impressive witness. She was asked about categorising as “low, moderate or high” the risk of an offender committing a serious offence. She said:

30. [89]

    The cross-examination focused significantly on differences of the supervision of the defendant under an ESO as opposed to an Intensive Corrections Order (“ICO”) and the effectiveness of the respective supervision regimes on the mitigation of risk. I deal with this issue below.

31. [90]

    On 21 February 2025 and 6 March 2025. Dr Chelsey Dewson, forensic psychologist, interviewed the defendant for the purposes of preparing a psychological assessment report. On 14 March 2025, Dr Dewson furnished the completed psychological assessment report.

32. [91]

    In her report, Dr Dewson outlined the defendant's psychosocial history, noting that he had "experienced a turbulent childhood, likely impacting his developmental course and sense of self''. Dr Dewson referred to the defendant's history of alcohol abuse, including the defendant's admissions during their interview as to the link between his alcohol consumption and his poor (violent and criminal) behaviour. Although the defendant expressed a hope to establish a pattern of "social drinking" in the future, it was unclear to Dr Dewson how the defendant would moderate his intake and regulate his behavior (particularly aggression) when drinking.

33. [92]

    The defendant reported that since being incarcerated he had "cut off" a number of his friendships but had maintained connections with those who had supported his and his partner over the past few years. The defendant denied being motivated to associate with people from “White Power groups", however Dr Dewson noted that he appeared to be "willing to facilitate relationships with people who were formerly in said groups, should he determine them compatible with his prosocial life goals".

34. [93]

    With respect to the defendant's relationship with Ms Jenaya Fowler, Dr Dewson noted that "Ms Fowler could be classified as both a protective and risk factor for [the defendant]". In this regard, Dr Dewson noted that Ms Fowler had previously sent the defendant a photograph of a young person doing the Seig Heil and had taken a photograph of a group of men, including the defendant, holding a "Vinland" flag. Ms Fowler also appeared to have acted as a conduit between the defendant and third parties whilst he was in custody and had at times, verbalised potentially unhelpful beliefs. Dr Dewson noted that despite this "Mr Liddington appears committed to this relationship, is motivated to stay out of gaol [sic] to facilitate this relationship and Ms Fowler has no criminal history”.

35. [94]

    During the interview, the defendant reported that he had been diagnosed with anxiety in around 2016 and was managing this through lifestyle changes and the implementation of coping strategies.

36. [95]

    The defendant also reported that he was diagnosed with PTSD in around 2010 relating to the traumas he experienced during his period of incarceration in Western Australia, as well as his childhood experiences. The defendant denied notable symptoms indicative of his disorder, suggesting that it had largely resolved, however the result of assessment using the PTSD Checklist-Specific reflected experiences of intrusive symptoms, avoidance of stimuli, negative alterations in cognitions/mood and alterations in arousal/reactivity. Dr Dewson did not consider that the defendant's symptoms at the time of her assessment warranted a current clinical diagnosis of PTSD.

37. [96]

    As part of the assessment process, Dr Dewson administered several clinical and offence specific assessment tools. Dr Dewson noted the limitations of the risk assessment tools applied, particularly in relation to the prediction of violent extremism.

38. [97]

    The Level of Service/Case Management Inventory (“LS/CMI”) was administered for the purpose of assessing salient risk factors, as well as treatment and service delivery considerations. The defendant's overall risk of general offending was assessed as falling within the High-risk range, with factors relevant to the defendant's risk including his criminal history, past barriers to education, experience of family problems, associations with unhelpful and antisocial peers, and history of alcohol abuse. Dr Dewson noted that the defendant scored on items relating to him being unemployed. Dr Dewson found that this high risk was likely to reduce to a medium risk upon him demonstrating positive vocational performance and healthy interactions with peers and people in authority.

39. [98]

    The VRS-2 was used to assess the defendant's actuarial risk of violence. Dr Dewson noted that the VRS was not designed to specifically assess the risk relating to violent extremism and may not identify factors empirically linked to terrorism-related behaviour. The static factors relevant to the defendant's risk included his age, criminal history, use of violence throughout his life, prior supervision failures, and instability during childhood. The dynamic factors relevant to the defendant's risk included his history of violence (including group-based violence), history of antisocial activity (general and non-violent offending), criminal attitudes, associations with unhelpful peers, past aggressiveness and intimidation in interpersonal interactions, and use of weapons.

40. [99]

    Dr Dewson noted that the defendant has gained insight into his violence and has been compliant with rules in custody, having shown the capacity for self-regulation and obedience in this context, and has thus far been compliant on the ISO. Dr Dewson also noted that despite this, the defendant had at times used cognitive distortions to justify violence and had a history of community supervision violations and some negativity towards people in authority.

41. [100]

    The defendant's risk assessment results placed him in the Level Ill Average Risk range. At this level of risk, Dr Dewson noted that the defendant's 5-year violent recidivism rate was about 24.6%, with 75% of the defendant's cohort not violently reoffending over a 5-year period in the community.

42. [101]

    The VERA-2R was administered to enable the charting of risk pathways relating to the defendant. The VERA-2R is not a predictive actuarial tool.

43. [102]

    Dr Dewson identified risk factors empirically linked to violent extremism, including the defendant's history of using intimidation, threats of violence and actual violence; grievances towards minority groups, police and the Australian government; maintenance of right-wing political views; history of criminal violence; and likely access to the funding and support necessary to participate in extremist violence.

44. [103]

    Dr Dewson noted that whilst the defendant reported that he now rejected violence as a social change tool, the evidence in the OTS call logs challenged these claims and suggested that he justified violence toward some groups. The defendant also denied any motivation to engage in violent extremism despite maintaining "right-wing" political views associated with "White Power". Dr Dewson opined that the defendant did not appear susceptible to influence, but "could be motivated by peers to advance a cause in the context of group affiliation". In this regard, the defendant expressed motivation to maintain relationships with some other extremists in the future, "albeit in the context of him stating that they no longer hold radicalised beliefs".

45. [104]

    Dr Dewson considered that the defendant also presented with several protective factors, including self-reported moderation in values; perceived rejection of violence; taking greater responsibility for his actions; alterations in his concept of the "enemy''; and engagement with PRAXIS. Dr Dewson noted that whilst the defendant had reportedly shifted in terms of his belief system and indicated a motivation to detach himself from violent extremists, there was contrary evidence in the OTS call logs. Dr Dewson also stated that, in the context of the defendant's comments that his family and friends supported him living a lawful life, their past inability to steer him away from offending as well as the evidence suggesting that some such people themselves held problematic attitudes meant these people were likely neutral (rather than protective or risk) factors.

46. [105]

    The TRAP-18 was administered to assess the defendant's risk of individual violent acts inspired by some group, movement or ideology. The TRAP-18 is not an actuarial instrument designed to specifically predict acts of lone-actor terrorism. The defendant did not present with any proximal warning behaviours, however there were distal characteristics, including personal grievance, ideology, and a history of criminal violence. Dr Dewson concluded that whilst there were some risk factors relating to lone-actor terrorism, no imminent threats were identified.

47. [106]

    Dr Dewson concluded, on the basis of her assessment, that the defendant "continue[d] to hold extreme political views associated with 'White Pride"' and was "motivated to associate with people who hold similar views to his own and/or who have been (or remain) affiliated with ideological groups". Dr Dewson stated there also remained evidence that the defendant "holds grievances towards certain subsets of community members, for example, those who aren't nationalistic (and likely others)".

48. [107]

    Noting the pitfalls of reducing an individual's risk to a single risk label, Dr Dewson assessed that the defendant's risk of committing a terrorist offence sat in the moderate to high range. Dr Dewson noted that the defendant was currently subject to an order, in the context of which the defendant is emotionally stable, having a solid romantic relationship, is abstinent from alcohol and is without direct contact with extremists. In this context, his risk of committing a terrorist offence is towards the lower end of the identified risk spectrum.

49. [108]

    However, Dr Dewson raised concerns that, in the absence of an order, the risk would be towards the higher end of the identified spectrum in circumstances where the defendant "will reconnect with unhelpful associations, as is his expressed intent (such as with his brother and a subset of old friends). Further, once the demands of everyday life return (such as work and step-parenting responsibilities etc.), he may have difficulty managing adversity and return to avoidance-based coping (i.e., alcohol abuse). In this emotional state, his general life negativity could emerge and manifest in grievances towards others".

50. [109]

    Dr Dewson noted that specific risk factors associated with the defendant's terrorism offending included "grievances towards minority groups, extreme political and social ideology, unhelpful attitudes towards violence, cognitive distortions (which likely allow him to justify his actions and overcome any moral objection to such), alcohol abuse, emotional dysregulation, unhelpful peer associations, unstable/misguided sense of identity and selected empathy deficits".

51. [110]

    Dr Dewson considered that a future terrorism offence committed by the defendant would likely be similar to the index offence. Namely, the offence would be in circumstances where the defendant was associated with an organisation that shared his ideology and encouraged (or at least tolerated) his violent behaviour. Dr Dewson noted that, in this scenario, the offence would likely occur against a person (or small number of people) from an identified group, such as a racial minority. The defendant would either act alone or with a group to intimidate or inflict violence on the victim, though this was unlikely to include a weapon. The defendant was also likely to be intoxicated and/or experiencing interpersonal conflict (such as in his romantic relationship).

52. [111]

    Dr Dewson considered that a more serious, but less likely, scenario would be a similar scenario which could involve a weapon or be directed towards a larger group of potential victims.

53. [112]

    Dr Dewson noted that alternative scenarios could include the defendant finding himself involved in antisemitic activity in the community or in an attack on law enforcement. Dr Dewson also suggested that other scenarios could involve the defendant joining a terrorist organisation, where he could be promoted to leadership positions and/or be involved in recruiting others to join the organisation, or obtain funds for the organisation. Dr Dewson considered that it was unlikely that the defendant would personally orchestrate or carry out a sophisticated terrorist attack.

54. [113]

    Dr Dewson stated that there was a possibility the defendant would not re-offend.

55. [114]

    In that scenario, the defendant would instead find employment, remain socially connected with helpful associations, manage his mental health, regulate his impulses, moderate his alcohol intake and challenge conditions relating to his ideology. Whilst he was assessed as being unlikely to renounce his White Power views, Dr Dewson noted it was possible that he could regulate his behavior in this context and denounce violence.

56. [115]

    Dr Dewson noted that "[w]hilst it's not possible to predict future violence, hypothetical scenarios developed in this case suggest that there is a possibility that recidivistic behaviour ... could meet the threshold for a serious terrorism offence".

57. [116]

    Dr Dewson opined that an ESO could assist the defendant to live a lawful lifestyle, by encouraging skill development whilst containing risk factors and protecting the community. Dr Dewson considered that any ESO imposed would need to be adequately flexible and reactive to positive changes on the defendant's behalf.

58. [117]

    In Dr Dewson's view, the proposed conditions also appeared appropriate. However, Dr Dewson considered that the restrictive nature of the conditions ought to be reduced in response to positive engagement to assist the defendant with integration and maximize scope for skill development. 81 In this regard, Dr Dewson noted that the proposed conditions, in the absence of flexibility, would "inevitably impact [the defendant's] ability to reintegrate into the community and likely heighten his grievances towards the Police".

59. [118]

    Dr Dewson noted that, if the defendant were compliant and continued to demonstrate compliance and stability in the community, an order of less than three years could be sufficient.

60. [119]

    Dr Dewson also gave evidence by audio-visual link. She was cross-examined. She too impressed as a witness.

61. [120]

    She accepted that significant risk factors in this case are the defendant’s history of extreme right-wing ideology and his associations with people who share or have more extreme versions of right-wing ideology. A further significant risk factor in this case for the defendant is consumption of alcohol. She accepted that if alcohol is involved the risk of the defendant committing some sort of violent offence is much higher than his risk of committing a terrorism offence.

62. [121]

    Dr Dewson accepted that there were protective factors present in this case including, that the defendant now has a family relationship with a partner and children, which, to some extent, satisfies a longing that he has experienced because of his childhood experiences. This is a protective factor in the sense that the defendant feels he now has a real family and does not need to seek any family substituted by way of associating with other men of a like mind. She accepted that the defendant’s decision to move to a normal environment in a new area which is geographically distant from his previous associates is also a protective factor.

63. [122]

    With respect to her conclusion that the risk of the defendant committing a terrorist offence is “moderate to high”, she accepted that this was not a statistical based label. That is because there is no actuarial based tool able to be used with violent extremism, so the label was based on her professional judgement. She accepts that reducing a risk formulation down to a single label can be quite dangerous because it does not effectively communicate the complexity of an individual’s risk. She accepted that in this case there was a low risk of an imminent violent offence being committed by the defendant. She also said that there was a low risk of him being involved in a large-scale or sophisticated attack motivated by violent extremism. However, the view was that there is a possibility that recidivistic behaviour could meet the threshold for a “serious terrorism offence”.

64. [123]

    In response to a question as to whether there was a low likelihood of something actually happening but there being a risk she said:

65. [124]

    The focus of the balance of the cross-examination of Dr Dewson was with respect to the differences between supervision under an ESO and ICO. I deal with that issue below.

The Results of any other assessment as to the likelihood of the defendant committing a serious terrorism offence: s 25(3)(b)

1. [125]

   On 26 July 2024 Ms Katrina Czerkies interviewed the defendant for the purposes of preparing a risk assessment report (“RAR”). I referred to the contents of this report in detail from [73]-[100] of the preliminary reasons.

2. [126]

   The RAR was based upon certain clinical and offence specific assessment tools administered by Ms Czerkies. I will not repeat the summaries of those assessments that I have included in the preliminary reasons. Based upon those matters and her assessment of the defendant, Ms Czerkies assess the defendant as being an “moderate to high” risk of “violent extremism, politically noted violence or terrorism”.

3. [127]

   Ms Czerkies referred to several risk scenarios she considered present for the defendant, one of which was a repeat of the index offence most likely to occur within a group-based context and involve verbal aggression and physical violence that is perpetrated against an individual (or group) that is perceived to have brought about or perpetuated physical or reputational harm to an individual of the group or the group itself. Other alternative risk scenarios included the defendant becoming a member of a terrorist organisation, facilitating an act of ideologically motivated violence perpetrated by another member or members of an extremist right-wing group, or engaging in an act of targeted grievance fuelled violence that is perceived to be ideologically motivated which would most likely occur as a lone actor event in the context of interpersonal conflict.

4. [128]

   In addition to the RAR, a Countering Violent Extremism (“CVE”) assessment was conducted on the defendant by Ms Maggie Cruickshank. I dealt with the CVE at [101]-[124] of the preliminary reasons.

5. [129]

   In summary, Mr Cruickshank believed that at the time of the interview with her, the defendant was involved in positive impression management and minimisation. At the same time, she was also of the view that there were aspects of the defendant’s self-reporting in which he demonstrated insight and presented as being motivated to address.

6. [130]

   Ms Cruickshank dealt with the defendant’s history of support of violent extremism, politically motivated violence and conducted a criminal and offence specific risk assessment using a number of risk assessment tools. The results of those tools are detailed in the preliminary reasons. The defendant was within the “medium” range for general offending and violence on the Level of Service Inventory-Revised (“LSI-R”), although Ms Cruickshank noted this tool was not a validated tool to measure risk specific to the context of violent extremism, politically motivated violence or terrorism and should not be used for that purpose.

7. [131]

   Ms Cruickshank observed specific areas of dynamic risk for the defendant and was of the view that there was limited evidence of sufficient community supports in place for the defendant to mitigate his primary risk factors. She observed that Ms Fowler appeared to provide some emotional and practical support, however, there were some aspects of their relationship which may elevate the defendant’s risk if unmanaged.

8. [132]

   Ms Cruickshank made certain recommendations which I’ve listed at [123] of the preliminary reasons.

9. [133]

   Whilst the plaintiff maintains reliance upon the reports of Ms Czerkies and Ms Cruickshank, some time has passed from the date of those reports and, to an extent, they have been superseded by reports of Dr Seidler and Dr Dewson.

Options if the defendant is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 25(3)(g)

1. [134]

   As noted above, the defendant is currently subject to two ICO’s and a CCO. The ICOs expire on 30 May 2025 and 29 November 2026, respectively.

2. [135]

   The defendant submitted that any risk that the defendant posed of re-offending, or committing a serious terrorism offence, is mitigated by the ICO and directions that can be given to the defendant by the supervising officer from Community Corrections.

3. [136]

   An ICO is a sentence of imprisonment to be served in the community subject to the conditions imposed by the sentencing court. Community safety must be the paramount consideration when a sentencing court is deciding whether to make an ICO. Further, when considering community safety, the sentencing court is to assess whether the making of an ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending: s 66 Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

4. [137]

   An ICO must not be made in respect of a sentence of imprisonment for certain offences, including a terrorism offence within the meaning of the Crimes Act 1914 (Cth): s 67 CSPA. An ICO must be subject to the standard conditions. They are that the offender must not commit any offence and must submit to the supervision of a community corrections officer: s 72-73 CSPA. At least one additional condition must be made at the time of sentence, and others can be made: s 73A CSPA.

5. [138]

   Conditions may also be imposed, varied or revoked by the Parole Authority under the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”). This is done on the application of a Community Corrections officer or the offender. The Parole Authority cannot vary or revoke a standard condition, or impose a condition, or revoke a condition unless the sentencing court could have imposed or revoked that condition: s 81A CASA.

6. [139]

   The conditions of the defendant’s ICO which expires on 30 May 2025 are the standard conditions, together with the following additional conditions:

   1. (1)

      to participate in any program, treatment, intervention or related activity specified in the order or by a Community Corrections officer for the period of the ICO; and

   2. (2)

      to participate in a rehabilitation program which the offender is directed to attend by the community corrections officer.

7. [140]

   The conditions of the defendant’s ICO which expires on 29 November 2026 are the standard conditions, together with the following additional conditions:

   1. (1)

      to participate in any program, treatment, intervention or related activity specified in the order or by a community corrections officer for the period of the intensive corrections order-rehabilitation; and

   2. (2)

      comply with any community corrections directions for anger management therapy.

8. [141]

   When sentenced to an ICO, the offender must comply with the following prescribed obligations:

9. [142]

   In the present case, unless and until a direction of the type in [141] is given to the defendant by a Community Corrections Officer about any of the above-mentioned obligations, the only conditions to which he is subject under the ICO’s are those stated in [139] and [140].

10. [143]

    I will deal with the respective submissions on whether the ICOs mitigate any risk posed by the defendant when I consider whether he poses an unacceptable risk of committing a serious terrorism offence.

The defendant’s criminal history: s 25(30(j)

1. [144]

   In the preliminary reasons (at [35]-[58]) I also extensively dealt with the defendant’s criminal history in Western Australia and New South Wales. I do not intend to repeat that material here. I have noted that he is currently subject to two ICO’s, the last of which expires on 29 November 2026.

2. [145]

   I am conscious that the THRO Act is not designed to prevent the commission of any offences, rather it is focused on protecting the community from the commission of serious terrorism offences: see State of NSW v Alam [2020] NSWSC 295 at [188]. The focus must be on whether the defendant poses an unacceptable risk of committing an offence of that kind.

The views of the sentencing judge for the index offence: s 25(3)(k)

1. [146]

   In terms of the index offending, at [52]-[58] of the preliminary reasons I set out the circumstances of the index offending. There is no doubt that offending involved a callous and violent attack on the premises of Mr Gibson. It was at a time when the defendant and his co-offenders were members of the white supremacist group Firm 22. The magistrate found that the defendant demonstrated no insight in relation to the “close connection between his personal beliefs, leadership of a white extremist group and the associated offending”. He found that the defendant and his co-offenders had an understanding, arrangement and agreement that they would commit these crimes against Mr Gibson based upon their white extremist right-wing beliefs and their ideological hatred of the political and cultural views of Mr Gibson. The magistrate found beyond reasonable doubt that the offences were “motivated by hatred for, or prejudice against, a group of people to which he believed Mr Gibson belonged”.

2. [147]

   Despite these findings, in my opinion it could not be found beyond reasonable doubt that the offending was done with the intention of advancing a political or ideological cause and intimidating a section of the public. The defendant had maintained that he was motivated by a perceived personal grievance against Mr Gibson and his intention was to seek information from him. I do not consider that it could be found beyond reasonable doubt that the circumstances of the offending constituted a “serious terrorism offence” within the meaning of the definition set out above.

3. [148]

   The plaintiff submits that it is possible that the defendant did have the requisite intention. It submits that this possibility is relevant to the risk to be assessed. I will return to this question.

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

1. [149]

   At [149]-[195] of the preliminary judgment, I dealt with groups and individuals the defendant associated with or had connections with. I referred in detail to the report of Dr Droogan when he discussed those groups and their ideologies. None of the groups had been declared as terrorist organisations under the regulations: s 102 1(1)(b) of the Criminal Code.

2. [150]

   The plaintiff accepts that Blood and Honour, Combat 18 and Firm 22 are not terrorist organisations as defined. [17] It submits, however, that it is “easy to imagine circumstances in which the activities or objectives of these groups might evolve to include engaging in, planning or fostering a terrorist act such as a violent protest intended to intimidate a section of the public”.

3. [151]

   As I have observed, the defendant has not, and does not, eschew his white supremacist beliefs. He was cross-examined extensively by Mr Emmett SC for the plaintiff on his associations with various groups, his tattoos which were reflective of his beliefs (and in some instances intended to intimidate).

4. [152]

   The defendant accepted that in 2010 or 2011 he became interested in Combat 18. He knew “18” stood for Adolf Hitler. He told Ms Cruickshank when he met people from Combat 18 in around 2012 that he thought that “these are my people”. Around the same time he met people from the Hammerskins who he thought were not tough enough.

5. [153]

   The defendant accepted that he said to Ms Fowler in October 2023 that when he got out of prison he was only going to associate with Hammerskins and the National Socialist Network (“NSN”). He accepted that he was aware that the NSN had grown out of the Lads Society which he became involved with once he moved to Sydney.

6. [154]

   He acknowledged he was committed to “the 14 words” and that he remains committed to them now. He said “there’s nothing wrong with them”. [18] The 14 words are “We must secure the existence of our race and a future for white children”. He accepts those words are closely associated with white power, but he says, “not so much Nazism”.

7. [155]

   He attempted to betray his involvement with Combat 18, the Lads Society and Firm 22 as being barbecue clubs. I accept the plaintiff’s submissions that his evidence in this regard was implausible. Rather, I consider that the evidence is that he associated with these people at the time for the purposes of engaging with like-minded, right-wing white supremacists. I accept the plaintiff’s submission that in this regard, the defendant’s evidence, at best, shows a lack of insight into the nature of these groups and the extremity of their beliefs. I consider he was attempting to downplay the nature of those organisations and his association with them.

8. [156]

   In the preliminary reasons I set out in more detail the nature of each of these groups and their beliefs. I accept they sit at the extreme and far right end of the political spectrum.

9. [157]

   The defendant did maintain, however, that he had modified his beliefs. He says he has reduced his association with those who hold extremist right-wing views over time. He has realised that violence is not an effective method for political change. As to whether he would resort to violence to respond to a grievance, he said:

10. [158]

    He denied he had only started distancing himself from extremist views in relation to violence when he knew he might be the subject of this application for an ESO. He said he had just pulled himself up on the “stupid shit” he was saying. He denied his distancing himself from his former views about violence was not genuine. He said he had done two years in jail and learned the hard way. He said the conditions he was under in jail when he could not speak to anyone were “shit”. He did not want to go back to jail and therefore did not want to do anything dumb. [20]

11. [159]

    As I have indicated above, I do not consider he was being untruthful in giving this evidence. I accept that the conditions under which he has been supervised whilst in custody, including not being able to see his brother and being strictly monitored, were onerous. I also accept that he does not wish to risk his relationship with Ms Fowler and her children. I am also prepared to accept that he has changed his views about violence as a means to obtain political change.

12. [160]

    He does, however, maintain his beliefs about white race supremacy. [21] The maintenance of such beliefs is relevant to the forward-looking risk assessment to be undertaken.

13. [161]

    Dr Droogan provided a supplementary report dated 17 March 2025 which provided an update on events that have occurred since his earlier report of 7 June 2024.

14. [162]

    In the supplementary report Dr Droogan said there had been a rise in far-right extremist activity in Australia, particularly in relation to increased activity by the NSN. He noted a significant rise in the number of anti-semitic incidents. He detailed several matters involving the NSN and its leader, Thomas Sewell.

15. [163]

    Dr Droogan gave evidence and was cross-examined. He was asked about the present state of operations (or in some cases existence) of the groups he had referred to in his first report.

16. [164]

    He said that he did not know if Combat 18 currently exists as an organisation in Australia. The defendant said it did not. [22] Dr Droogan was not aware of any public activities of Combat 18 or any of its members in the past 5 or 10 years. [23]

17. [165]

    His evidence was that Blood & Honour probably does exist in Australia based on online materials he has viewed. He said, however, he is not aware of any activity of that organisation or if it exists in Australia. [24]

18. [166]

    He said the Lads Society was disbanded in 2019-2020 and subsequently became part of the NSN. He said the NSN is still currently active in Australia. That organisation engages in marches at outdoor training excursions. During the past marches NSN members engaged in offensive and illegal conduct by way of Nazi salutes and display of Nazi symbols. They remained otherwise non-violent marches. [25] The defendant had a strong association with the Lads Society and was one of its leaders. [26]

19. [167]

    As to Firm 22, Dr Droogan said that he was not aware of it existing in Australia although he had seen material relevant to it and its viewpoints shared by Australians. [27]

20. [168]

    He agreed that the Vinlanders Social Club (“VSC”) is not an organisation that exists in Australia but is primarily based in the United States. The defendant accepted he had communicated with members of the VSC in America. [28]

21. [169]

    Dr Droogan was not aware of an organisation existing in Australia known as the Outlaw Hammerskins. [29]

22. [170]

    He was not aware of the Aryan Nations existing as an organisation in Australia. [30]

Plaintiff’s submissions

1. [171]

   The plaintiff submits that in undertaking the evaluative task the words “unacceptable risk” are to be given their ordinary everyday meaning. It submitted that a consideration of the whole of the evidence would lead the Court to be satisfied to the requisite high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an ESO.

2. [172]

   The plaintiff pointed out that the serious terrorism offence does not need to be specified, but that it must include both the intention of advancing a political, religious or ideological cause and the intention of coercing or influencing by intimidation the public or a section of the public. The plaintiff referred to the index offence. It submitted the magistrate’s findings were to the effect that the defendant’s violent and threatening conduct involved an intention of advancing a political or ideological cause. It was submitted the findings do not “necessarily” establish that the defendant had the intention of intimidating the public or a section of the public but the court should proceed on the basis that it might have been accompanied by this intention. That is relevant to the risk assessment of what might happen in the future, thus there being an unacceptable risk of the commission of a serious terrorism offence.

3. [173]

   The plaintiff submitted that another example of offending which could constitute a serious terrorism offence could be violence in the context of a pro-white supremacy protest which is intended to intimidate members of another race or a section of the community at large. It referred to the defendant’s comments about a race war and his tattoo which stands for “racial holy war”. Those comments were that about the time he became interested in Combat 18, whilst he didn’t think it would happen, he wanted a race war to occur. [31] the plaintiff submitted that violence at a protest intended to intimidate a group of people compromising “a section of the public” could be accompanied by the necessary intention. It submitted violence against an individual may also be accompanied by the necessary attention if that individual was targeted to send a message to a section of the community. It submitted this could include violence against an individual even though that violence is primarily retaliatory or actuated by a private grievance, if it is also accompanied by the intention to advance a political or ideological cause and an intention to intimidate a section of the public.

4. [174]

   As to the groups or organisations that the defendant has been associated with, the plaintiff accepts that none to date have been declared terrorist organisations. The plaintiff also accepts that the conduct engaged in by some of those groups identified by Dr Droogan in his first report, includes violence generally and violence between rival gangs and this is not necessarily within the definition of a terrorist act.

5. [175]

   The plaintiff submits that it may not be necessary for the court to make a positive finding that particular groups are presently terrorist organisations. It submits the question is whether there is an unacceptable risk of the defendant committing a serious terrorist offence by joining, recruiting for otherwise supporting a terrorist organisation. The plaintiff’s case is that there is an unacceptable risk that at least the VSC, Combat 18, the NSN and Aryan Nations would meet the relevant definition either in their present form or at some time in the near foreseeable future.

6. [176]

   The plaintiff refers to the defendant’s association with these organisations and others who are linked to them such as Mr Edhouse (Aryan Nations, VSC and Firm 22) and Mr Sewell (NSN). The plaintiff’s case is that there is an unacceptable risk of the defendant becoming a member of, or recruiting for, or otherwise supporting these organisations or other organisations of a similar nature in circumstances where the organisation at the time would satisfy the definition of a terrorist organisation.

7. [177]

   As to whether the risk posed by the defendant is an “unacceptable risk”, the plaintiff relies on the following matters: [32]

   1. (1)

      the defendant has been assessed as a “moderate to high” risk of violent extremism, politically motivated violence, or terrorism. He has a history of violent extremist right-wing ideology and associations with others who espouse the same beliefs;

   2. (2)

      the defendant received a custodial sentence for the index offence which was found beyond reasonable doubt to be ideologically motivated;

   3. (3)

      the defendant continues to present with an extremist right-wing ideology. This was the view of both Ms Czerkies and Ms Cruickshank. The plaintiff referred to the OTS calls recorded between the defendant and Ms Fowler whilst he was in custody which, it submits, demonstrates he still holds those beliefs. It submits the court would be circumspect in accepting his evidence he no longer holds those views. That is particularly so because:

   4. (4)

      Further, the evidence demonstrates that the defendant has a desire to maintain contact with a number of individuals who have right wing extremist views, for example Robert Edhouse (who was a mate and someone he respects) and also the persons from the NSN. The plaintiff submits that these associations would contribute to the defendant’s risk;

   5. (5)

      the defendant has limited protective factors, although it is accepted the relationship with Ms Fowler is more protective than risk increasing.

8. [178]

   Cumulatively, the plaintiff submits that these factors demonstrate there is a real risk that it left without intensive supervision and monitoring in the community, the defendant could commit a serious terrorism offence.

9. [179]

   With respect to the fact that the defendant is subject to an ICO until November 2026, the plaintiff submitted that despite being cross-examined about this and accepting that supervision under an ICO would mitigate any risk, both experts maintain that on balance an ESO, which could be extended, would be more appropriate. This is because of additional conditions which might be imposed under an ESO and the engagement of more specialist teams and intensive supervision available under an ESO rather than under the ICO.

10. [180]

    The plaintiff submitted that whilst it may be accepted that an ICO operates so as to mitigate the defendant’s risk of committing a serious terrorism offence, it does not do so to the extent that the risk is no longer unacceptable. It submitted that although a number of similar directions may be given under the ICO, it is significant that a number of the directions must have as their purpose compliance with the ICO and not the broader mitigation of the defendant’s risk of committing a serious terrorism offence.

11. [181]

    The plaintiff submitted that on the appropriate period for an ESO is two years and made submissions as to appropriate conditions if an ESO is made.

Defendant’s submissions

1. [182]

   The defendant submits that the evidence fails to establish to any convincing degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

2. [183]

   Rather, the defendant submits that whilst the evidence of the two court appointed experts is that the defendant poses some risk of committing a serious terrorism offence, that does not necessarily mean that the risk is unacceptable nor that an ESO should be ordered.

3. [184]

   The defendant submitted that, on all of the evidence, the court would come to the following conclusions:

4. [185]

   Senior Counsel for the defendant accepted that the most significant evidence in respect to the nature of the risk of committing a serious terrorism offence comes from the court appointed experts. It is accepted that their opinions are that he poses such a risk. The defendant submits, however, that care must be taken to understand the opinion of the experts as to the assessment of this risk keeping in mind the definition of a “serious terrorism offence”. The defendant submits Dr Dewson does not engage appropriately with that definition, rather, speculates any future risk will likely be similar to the index offence-which is not a serious terrorism offence as defined.

5. [186]

   In the defendant’s written submissions focus is made on the care that must be taken in engaging with the elements of a “serious terrorism offence” when assessing any risk posed by the defendant. It was submitted the plaintiff’s analysis in its written submissions was speculative and did not appropriately engage with the elements. For example, a protest making a statement about white supremacy may be an action intended to advance an ideology and could result in intimidation but without more, such a protest would not typically involve action, or even a threat of action, of serious physical harm or serious property damage. Further, any violence if it did breakout would not inevitably be linked with the intention to advance an ideology or intimidate a section of the public. It may be reactive, individualised or even defensive.

6. [187]

   The defendant submits that there is a danger in equating any offending that may have an ideological component with a “serious terrorism offence”. That is significant, it was submitted, for this defendant who acknowledges the holding of a worldview that is substantially informed by perceptions around race nationalism and a scepticism of government. Those views, as evidenced in some of the OTS recordings, are at times offensive, but are far removed from the ambit of a “serious terrorism offence”. It is submitted that as emotive and repellent as some of the defendant’s statements or beliefs may be, they lack the purposive elements that characterise offending involving a “terrorist act” as defined.

7. [188]

   Additionally, the defendant submits that none of the risk assessment reports convincingly suggest that the defendant is a risk of a preplanned or highly organised terrorist act of violence or property damage. There is no credible suggestion, it is submitted, that he might become involved in such an act.

8. [189]

   With respect to the groups or organisations with which he has had association, the defendant notes that previous judgements have declined to conclude that organisations such as Blood & Honour and Combat 18 could be classified as terrorist organisations: see State of New South Wales v White [2018] NSWSC 1943 at [53]. It is accepted by the plaintiff that the organisation with which the defendant is most closely associated (Firm 22) is not a terrorist organisation.

9. [190]

   The defendant submits that the plaintiff’s contention that, nevertheless, the prospect that these organisations may evolve to become terrorist organisations warrants a conclusion that the defendant is an unacceptable risk of organisational offending should not be accepted. It is submitted that such a contention could not satisfy the court to a high degree of probability that the defendant poses the relevant risk at the time of the application.

10. [191]

    The defendant realistically acknowledges that the risk assessments do identify criminogenic risk factors for the defendant engaging in future offending more generally. However, they do not provide any convincing connection to the risk of a serious terrorism offence.

11. [192]

    The defendant submits that any of the risk factors which do exist are addressed without the need for an ESO. That is because the defendant is subject to the two ICO’s, the last of which expires on 29 November 2026. The defendant says that he will be supervised and required to participate in any program, treatment, interventional related activity specified by community corrections concerning rehabilitation and anger management. He will be subject to the oversight of the State Parole Authority who will have the power to impose additional conditions on his ICO at any point, either on breach on the application of a community corrections officer: see ss 80(1A) and 164 of the CASA. Additional conditions could include abstention, prohibition of associating with persons, place restrictions curfews and electronic monitoring. Importantly, the defendant would face the prospect of being returned to custody for breach the ICO or committed any further offence.

12. [193]

    Additionally, the defendant would remain subject to a weapons prohibition order (“WPO”) and a firearms prohibition order (“FPO”). Police retain significant powers in relation to a person subject to such orders, for example under the FPO, police may stop and search that person or any vehicle or premises they occupy or control.

13. [194]

    Having regard to all of the evidence, including the evidence about the effectiveness of supervision under the ICO in mitigation of the risk, the defendant submitted that the court would not be satisfied to a high degree of probability that there was an unacceptable risk of the defendant committing a serious terrorism offence if not kept under supervision.

Consideration of the Section 20(d) test

1. [195]

   I have concluded that the plaintiff has discharged its burden to establish to the high degree of probability that the defendant poses in unacceptable risk of committing a serious terrorism offence if not supervised by an ESO.

2. [196]

   Senior Counsel for the defendant appropriately conceded that the evidence establishes that the defendant poses a risk of re-offending generally. This re-offending may include offences involving violence, most likely arising out of interpersonal conflict. The risk of re-offending is higher if the defendant is affected by alcohol, reflecting the position that much of his prior offending is alcohol related. Whilst he is currently abstinent from alcohol, his evidence was that he intended to stay that way for at least a couple of years and then go back to “social drinking”. Whether he is able to do so, and whether social drinking will properly reduce the risk of him re-offending remains to be seen. It may be thought this is a risky approach by the defendant. I consider that if the defendant does not remain abstinent from alcohol, his risk of re-offending will significantly increase.

3. [197]

   Senior Counsel also accepts that the two court appointed experts, Dr Seidler and Dr Dewson, are of the opinion that the defendant poses some risk of committing a serious terrorism offence. As is set out above, Dr Seidler’s view is that the defendant presented with a number of risks relating to future acts of violent extremism. Although the risks were not significant in number or extent, if acted upon they may result in a serious terrorism offence. The matters taken into account by Dr Seidler, including the protective factors, are set out at [77] above.

4. [198]

   Dr Dewson considered that the defendant's risk of committing a terrorist offence sat in the moderate to high range. She noted that in the context of the defendant being emotionally stable, having a solid romantic relationship, being abstinent from alcohol and having no direct contact with extremists his risk of committing a terrorist offence is towards the lower end of the identified risk spectrum.

5. [199]

   Whilst each of the experts regarded the risk of the defendant imminently committing a terrorism offence as being low, they each maintained the risk was there. Each accepted that he had taken steps to re-integrate and was in a relationship. He had said he was moving away from extremist violent views. However, each considered that it was early in the defendant’s rehabilitation and supervision for a period of time would be important in mitigating any risk and continuing that rehabilitation.

6. [200]

   The conclusion by the two court appointed experts that the defendant poses a risk of committing a terrorism offence is significant in the assessment that needs to be undertaken. I accept their opinions.

7. [201]

   I have outlined above at [177] the matters relied upon by the plaintiff in support of its submission that the defendant poses an unacceptable risk of committing a serious terrorism offence. I accept that cumulatively, having regard to all of the evidence including the cross examination of the witnesses at the hearing, those factors demonstrate there is a real and unacceptable risk that if left without intensive supervision and monitoring the defendant poses an unacceptable risk of committing a serious terrorism offence.

8. [202]

   In particular, I consider that whilst the defendant may have moderated his views on the use of violence to attain political change, and does have the protective factor of his relationship with Ms Fowler, he maintains his extremist, white supremacist beliefs. I have given some examples of his statements to this effect above. The plaintiff has referred to others at [177][h]. He does intend to keep contact with persons such as Thomas Sewell and Robert Edhouse who share those beliefs. There is a risk that if the relationship with Ms Fowler breaks down, he will gravitate towards those like-minded individuals and others. In those circumstances I consider there is a risk that, particularly if alcohol was involved, in furtherance of those ideological beliefs and in order to intimidate the public or a section of the public who do not share those beliefs, the defendant, alongside others, could engage in conduct which could amount to a serious terrorism offence.

9. [203]

   I note that the plaintiff does not need to identify the specific type of terrorism offence or terrorist act that the defendant is a risk of committing. I take into account the very broad range of matters caught by the definition of “terrorism offence”. I have had regard to the comments of Johnson J in Cheema (Preliminary) at [84]-[85] where his Honour observed the breadth of terrorism offence is in the Criminal Code, which include preparatory acts.

10. [204]

    In the PWS, focus was placed on the index offending. It was said that the Magistrate’s findings were to the effect that the defendant’s violent and threatening conduct involved the intention of advancing a political or ideological cause. It was submitted that those findings do not necessarily establish that the intention of intimidating the public or a section of the public, but that the Court should proceed on the basis that the index offending might have been accompanied by an intention to intimidate a section of the public. It submits, if that is so, then this is relevant to the risk assessment for the future. Whilst I have said I could not find beyond reasonable doubt that the defendant had that intention at the time of the commission of the index offence, I accept he may have had that intention. It is clear the offending was driven by his ideology and a hatred of the ideology of the victim. That possibility does inform and support the conclusion that in the future there is a risk of re-offending of a similar nature which would be accompanied by that intention.

11. [205]

    The plaintiff also suggests a further example of potential offending could be violence in the context of a pro-white supremacy protest which is intended to intimidate members of another race or a section of the community at large. The defendant has said that he no longer believes that violence is an appropriate way to obtain political change. I accept that evidence as credible when taken in the context of the defendant now being in a relationship with Ms Fowler and her children which he regards as long term and which he would risk losing if he otherwise engaged in violence or political extremism. However, as I have said, the possibility of that relationship breaking down and the defendant’s maintenance of his extremist views and desire to maintain association with others of a like mind, also inform the future risk of an offence of this nature being committed.

12. [206]

    In terms of the defendant’s association with terrorist organisations, as I have indicated above, and as the plaintiff accepts, none of the organisations or groups that the defendant has had any association with have been declared terrorist organisations. Further, Dr Droogan gave evidence that I have referred to above that most, if not all, of them do not presently function as organisations in Australia. It is possible that like-minded individuals who hold the extremist ideological beliefs of those organisations may at some time in the future organise into a more cohesive group. I keep in mind the observations of the High Court in Abdirahman-Khalif that I have set out at [28] above and that for the purposes of the commission of a terrorist act, including its planning, there does not need to be a group contractually bound by rules or a constitution. The evidence substantiates a finding that there is a risk that the defendant’s association with those persons, if it was to continue, is such to justify the finding that there is an unacceptable risk of the defendant becoming a member of or recruiting for such an organisation which may at some time in the future fit the definition of a terrorist organisation.

13. [207]

    The plaintiff submits that there is an unacceptable risk that at least the VSC, Combat 18, the NSN and the Aryan Nations meet the relevant definition either in their present form or at some time in the foreseeable future. Of these groups, only the NSN presently exists in Australia. The others can, for present purposes, therefore be discounted although it is possible they may re-emerge.

14. [208]

    Dr Droogan’s supplementary report addresses the increased activity of the NSN. It is linked to an increase in anti- semitic activity in Australia. The NSN has not been declared a terrorist organisation. In his first report, Dr Droogan described the NSN as being a cooperative of various Australian neo-Nazi political organisations and far right violent extremist groupings. He said that the NSN sits on the extreme and violent end of the far-right political spectrum. Its ideology is grounded in white supremacy, anti-Semitism and a rejection of democratic processes, favouring instead a paramilitary approach to achieving its goals. He said the NSN are a radical far-right extremist organisation committed to overthrowing Australia’s political system from within if possible, and from outside if necessary. Whilst I do not make an actual finding that the NSN is within the definition of terrorist organisation or group, I accept there is a real possibility that it may meet that definition in the foreseeable future.

15. [209]

    The defendant has accepted that he has said that he would want to associate with members of the NSN. [35] He told Ms Fowler he was pleased they were active in Sydney. [36] He denied he wanted to be involved in their activities in Sydney making a distinction between associating and activism. [37] His desire to associate with members of the NSN is a concern. The distinction between association and activism is blurry and probably a convenience. I consider this evidence supports a conclusion that there is an unacceptable risk that the defendant will be associated with the NSN which may be, in the future, a terrorist organisation. [38]

16. [210]

    I accept the evidence that the defendant regards Mr Edhouse and Mr Sewell as friends and has, and will likely in the future, maintain contact with them. I accept that this contact would be because they share likeminded, right-wing ideologies advocating political change if necessary by violent means. Taken into account with all of the other evidence, I do accept that the associations between the defendant and these persons, both past and prospective, supports a finding that there is an unacceptable risk the defendant will commit a serious terrorism offence.

17. [211]

    The plaintiff also places emphasis on the various tattoos the defendant has on his body. These include a swastika, “Blood & Honour”, “88” (which he accepted stood for Heil Hitler), the Mjolnir (Thor’s Hammer), “RAHOWA” (RAcial HOly WAr) with a machine gun and “The Punisher”. He accepted at the time he got them he intended the tattoos to be intimidating. I accept the plaintiff’s submission that this concession provides support for the Court to be satisfied that there is an unacceptable risk that a future offence of violent extremism might be accompanied by the relevant intention so as to constitute a serious terrorism offence including an intention to intimidate a section of the public. As I have already said, the defendant does maintain his racist world view. Whilst he says he has moderated his views about the use of violence to achieve political change, he said in cross-examination that at the time he became involved with Combat 18 and when he got some or all of these tattoos, he never thought there was going to be a race war but he was a “true believer” and wanted a race war. [39] The fact that the defendant put on his body a number of tattoos which were be offensive (or in some cases now illegal) and which he accepted were intended to be intimidating leads me to infer, having regard to the other evidence including the maintenance of the defendants otherwise offensive beliefs, that there is a risk he may engage in an offence of future violent extremism and do so with an intention to intimidate a section of the public.

18. [212]

    I’ve also taken into account the plaintiff’s reference to the various OTS calls made by the defendant with his partner Ms Fowler. The plaintiff says that these calls show that the defendant will not change his beliefs. [40] These calls were made when the plaintiff was in custody and were being recorded, to the defendant’s knowledge. As the plaintiff quite properly accepts, it should be borne in mind when assessing the defendant’s evidence, and the evidence of his telephone calls with Ms Fowler whilst he was in custody that:

19. [213]

    There must, as the plaintiff accepts, be some allowance for the impact of custody and the nature of the custodial environment, in assessing what the defendant said. Some of the things he said were objectively offensive, bigoted, pro-violence and racist. The statements are concerning and cannot be explained as being a consequence of him being in custody when he said them. I have mentioned but some of them at [177] (f). I have taken all of those matters into account in the forward-looking risk assessment I am undertaking.

20. [214]

    The authorities that I have referred to make clear that the risk assessment I am undertaking is not the determination of an occurrence of either past or future events, rather I am making a finding of fact as to a present state of affairs albeit one related to the potential occurrence of a future event necessarily informed by past events. There is necessarily an element of speculation in the risk assessment being undertaken. The evidence, particularly that of the experts, does indicate that there is some risk of the defendant committing a terrorist offence. Taking into account all of the evidence, I do consider that the plaintiff has demonstrated to the requisite high degree of probability that such a risk is unacceptable giving that word its ordinary meaning. Any risk that exists must be assessed having regard to the objects of the THRO Act, namely the safety and protection of the community. A risk may be unacceptable even if it is low. That is the case here unless the defendant is supervised by an ESO with appropriate conditions.

21. [215]

    I do not consider that supervision of the defendant under the ICOs he is subject to will mean risk posed by the defendant is acceptable.

22. [216]

    Quite a deal of time in the hearing was spent cross-examining witnesses about the differences between supervision under an ESO as compared to an ICO. A sizeable part of submissions was also dedicated to this issue. The defendant’s Senior Counsel submitted that if no ESO was made, the defendant “would be intensely supervised under an ICO with a suite of directions aimed at mitigating his risk of offending generally and, in particular, of committing a serious terrorism offence”. [41] I consider that this somewhat overstates the position.

23. [217]

    I accept that there is the power for a Community Corrections Officer to give extensive directions to the defendant, including as to many of the matters which may otherwise be covered by conditions under an ESO. For example, directions could be given with respect to non-associations of specified persons, restrictions on places which can be visited or frequented, participating in employment or training and compliance with any other reasonable directions given by the relevant officer.

24. [218]

    The State Parole Authority can also impose additional conditions on an ICO on application of the offender or Community Corrections: s 81A CASA.

25. [219]

    I also accept that if no ESO was made, the evidence before me establishes that the Terrorism High Risk Offenders Unit (“THROU”) from the corrective services and the High-Risk Terrorism Offender (“HRTO”) of the New South Wales police force would provide to Community Corrections information relevant to the supervision of the defendant and any particular risks they those units considered he posed.

26. [220]

    Senior Counsel for the defendant cross-examined Dr Seidler and Dr Dewson on the mitigation of any risk that the defendant may pose if he was subject to intensive supervision under an ICO. They were asked their opinions in the context of the defendant being given directions by a Community Corrections officer over and above the conditions of the ICO. Each of those experts appropriately accepted that an ICO (with those additional directions or additional conditions akin to the conditions sought for the ESO) would provide support and supervision and assist in mitigating the risk posed by the defendant. However, they were not asked of the mitigation of the risk posed by the defendant if he only had to comply with the extant conditions of the ICO and no additional directions were made.

27. [221]

    Even if each of the directions listed above was given to the defendant by a Community Corrections Officer, or additional conditions of that type were imposed by the Parole Authority, there are differences between supervision under an ESO and under an ICO. For example, in this case the plaintiff seeks conditions of the ESO with respect to the scheduling of movements of the defendant and also electronic monitoring by way of the defendant wearing an ankle bracelet. Neither of those conditions could be imposed under an ICO. Further, an ESO may be extended in appropriate circumstances whereas an ICO cannot be extended but expires at the end of the sentence imposed by the court.

28. [222]

    I accept the plaintiff’s submissions that there is also a difference between the intensity of supervision and the scope of conditions as sought by the plaintiff if an ESO is granted as opposed to the conditions of the ICOs to which the defendant is subject. That is so even proceeding on the assumption that directions of the type discussed will be given to the defendant by his supervising community corrections officer under the ICOs. This difference is, at least in part, understandable having regard to the different purposes of an ESO and an ICO.

29. [223]

    An ICO is a sentence of imprisonment to be served in the community where the sentencing court, in considering community safety, considers that by serving a sentence in the community (subject to certain conditions) the offender’s risk of reoffending would be better addressed than by serving it by way of full-time detention. In making such an order, the sentencing court engages in an evaluative exercise that treats community safety is the paramount consideration and allows the imposition of conditions, the nature and content of which will be important in measuring the risk of reoffending (for a discussion of the appropriate approach in determining whether to impose an ICO, see Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [65]-[77] and Zheng v R [2023] NSWCCA 64 at [281]-[286]).

30. [224]

    An ESO under the THRO Act is a post custodial regime of supervision imposed when a court considers that there is an unacceptable risk that the offender may, if not supervised, commit a serious terrorism offence. The conditions imposed are to ensure the safety and protection of the community whilst encouraging such offenders to undertake rehabilitation.

31. [225]

    Whilst the purposes of the respective orders in so far as they each seek to assist the rehabilitation of offenders may be similar, the overall context and purpose in and for which they are made is significantly different. One of the purposes of an ICO is to reduce the risk of the offender re-offending and assist their rehabilitation whilst they are serving their sentence. A breach of any conditions of the ICO may result in the ICO being revoked and the offender being returned to gaol for the balance of the sentence, or the imposition of additional conditions. One of the objects of the THRO Act is to encourage rehabilitation of offenders who pose the relevant risk once they have completed their sentences by subjecting them to certain conditions. A breach of those conditions may constitute a fresh offence.

32. [226]

    The Court undertakes a different assessment in determining whether to make an ESO than it does when it makes an ICO. The conditions that can be made under an ESO are more far reaching and intense than those that can be made under an ICO. I have referred to scheduling requirements and electronic monitoring as an example. Search powers and monitoring of the defendant’s online activities, and the use of electronic devices and technology generally, are other conditions that can be made under an ESO but not an ICO.

33. [227]

    Supervision under an ICO is by an officer of Community Corrections. That officer would supervise the offender at a level depending on the risk of re-offending under the Level of Service Inventory – Revised (LSI-R) usually addressed in the Sentencing Assessment report. Here, the Sentencing Assessment Report states that the defendant was assessed as a Medium risk of re-offending and would be subject to a Tier 3/Medium supervision level. This requires contact with a community corrections officer every two weeks. The defendant has moved to a semi-rural area, and he would need to report to the local community corrections office (or be visited from time to time by the community corrections officer) for the purposes of supervision under the ICO.

34. [228]

    Under an ESO, there is a multi-disciplinary supervisory structure with agencies from corrective services and the NSW police force involved for the specific purpose of engaging with and supervising high risk offenders. If appropriate to protect community safety, these units can monitor offenders subject to ESO’s at all times by electronic monitoring or requiring a schedule of movements. Whilst the evidence in this case is that if no ESO is made, those specialist units would share information with community corrections to assist in the supervision of the defendant under the ICO’s, it is apparent that the supervision under an ESO would be more intense and involve agencies with greater capabilities and manpower, than under an ICO. That is understandable given the different purposes for the orders.

35. [229]

    The defendant is also subject to an FPO under the Firearms Act 1996 (NSW) and a Weapons Prohibition Order WPO under the Weapons Prohibition Act 1998 (NSW). Whilst there are broad search powers that can be exercised by the police under a FPO without reasonable cause where illegal items in the possession of the defendant could be seized, those powers would not enable the search of computers or other electronic devices.

36. [230]

    The supervision under an ICO is designed to ensure compliance with that order. The powers capable of being exercised for breach of conditions under an ICO are reactive and not proactive. The supervisory powers exercisable under conditions imposed under an ESO are designed to prevent the commission of further offences.

37. [231]

    I have set out the conditions imposed for the ICO’s. As I have said, they are imposed by the sentencing court at the time of sentence, based upon the material before the court, including as to the risk of the offender re-offending. I have also set out the obligations of an offender under an ICO, which include complying with reasonable directions given by an officer of community corrections. These directions would be given to ensure compliance with the ICO.

38. [232]

    There may be a question whether it would now be reasonable for the supervising Community Corrections Officer to give significantly burdensome directions under the ICO when at the time the order was made, it was not thought necessary to include such matters as conditions of the ICO. That is particularly so if the directions are given to address a risk of a particular type of offending not considered at the time of the imposition of the ICO. It must be remembered that the ICO is a sentence of imprisonment imposed after the court has undertaken the instinctive synthesis of sentencing taking into account the relevant matters under the CSPA, the objective seriousness of the offending and the offender’s subjective case.

39. [233]

    When considering whether the sentences of imprisonment be served by the defendant by way of an ICO, the sentencing court was required to assess what conditions were necessary to achieve the objects such an order. If conditions corresponding to the directions now suggested were considered necessary or appropriate at that time, it could be expected that they would have been included in the conditions of the ICO’s. That they weren’t is illustrative of the different purposes of the ICOs and the ESO now sought. Indeed, if there was a risk at the time of sentencing that the offender may commit a serious terrorism offence, it seems unlikely that the paramount concern of community safety could be ensured by the imposition of an ICO even with the strictest of conditions.

40. [234]

    In this case, when questioning witnesses about the differences in supervision under an ICO and an ESO, the parties appeared to proceed on the assumption that additional directions would be made by the Community Corrections Officer under the ICOs to make compliance with those directions at least comparable with compliance with the proposed conditions of the ESO. If that is the case, then I accept that there would be a mitigation of any risk posed by the defendant of re-offending or committing a serious terrorism offence. However, I do not consider that such mitigation would make the risk that the defendant would commit a serious terrorism offence acceptable. The different orders address different risks, have different supervisory regimes and are made for different purposes.

41. [235]

    For the above reasons, I consider an ESO should be made.

Duration of the ESO

1. [236]

   The order sought by the plaintiff in the summons is for an ESO for a period of three years. In its final submissions, the plaintiff’s position is that an ESO should be granted for a period of two years. The plaintiff acknowledges that the court could make an ESO for a lesser period.

2. [237]

   The defendant submits that if an ESO is to be granted, it should only be for a period of 12 months.

3. [238]

   Each of the experts were cross-examined about the appropriate length of an ESO should one be made and the conditions which ought be attached to it. Dr Seidler considered an ESO of 12 months would enable the defendant to demonstrate his prosocial engagement with the community, restore his employment and commit to his family whilst also giving the community and the state some confidence he will not return to his problematic behaviours, including associations with right-wing extremists or engaging in problematic alcohol abuse. It would also allow the defendant to demonstrate continued positive change in therapeutic areas such as dealing with emotions, problem-solving, communicating, being the things that have been identified as areas he needs to work on. [42]

4. [239]

   Dr Seidler also said that her opinion was that 12 months was appropriate. This view was premised on the ability to seek a further ESO if the defendant did not demonstrate and sustain the change that he had been showing. She accepted that there is a risk that he may not demonstrate and sustain appropriate change in the 12-month period and that the relevant risk requiring supervision may not manifest until the second year. [43]

5. [240]

   Dr Dewson also accepted that it could be appropriate to order an ESO for a period of 12 months with the capacity to apply for an extension if there was a deterioration rather than improvement in the defendant’s behaviour. [44] There was some questioning of Dr Dewson about her opinion as to when any “deterioration” in the defendant’s behaviour may occur. She indicated that if there was to be problematic behaviour it would probably be manifested within 12 months. [45]

6. [241]

   I consider that the appropriate period for the ESO is 12 months. I accept the evidence of the experts that this will enable the defendant to continue with his prosocial engagement and other treatment and demonstrating he continues on the path of rehabilitation. I acknowledge that if necessary, there can be an application to extend the ESO.

Appropriate conditions

1. [242]

   Section 29 of the THRO Act provides that an ESO may direct an eligible offender to comply with such conditions as the Court considers appropriate. Certain conditions must be imposed unless the Court otherwise orders: s.29(1A).

2. [243]

   The relevant legal principles with respect to the imposition of any condition attaching to an ESO under the Crimes (High Risk Offenders) Act 2006 (NSW) was considered in Wilde v State of New South Wales [2015] NSWCA 28 (“Wilde”) at [37]-[43]. Those principles are applicable here as the legislation in its terms with respect to the imposition of conditions as the court thinks appropriate, is relevantly the same. In State of NSW V Fayad [2021] NSWSC 600 (“Fayad”); Wright J at [14]-[18] discussed these principles when dealing with an application to vary conditions under the THRO Act, including referring to Wilde.

3. [244]

   A distillation of those principles can be seen as:

   1. (1)

      the objects of the legislation are protective rather than punitive aimed at ensuring the safety and protection of the community and encouraging the rehabilitation of the person subject of supervision: Attorney-General for New South Wales v Tillman [2007] NSW CA 119 (“Tillman”);

   2. (2)

      it is a fundamental principle that the defendant, having served a sentence of imprisonment for the offending, has a right to personal liberty, albeit that right is not absolute, with limitations on that right including those inherent in the provisions, objects and purposes of the THRO Act: Fayad at [15]; State of New South Wales v Wilkinson (Preliminary) [2020] NSW SC 183 at [44] (“Wilkinson”);

   3. (3)

      conditions that are considered appropriate may impose constraints as well as positive obligations on the person the subject of supervision: Tillman at [10];

   4. (4)

      the power of the court in imposing conditions as the court “considers appropriate” involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: Tillman; State of New South Wales v Ali [2010] NSW SC 1045 at [88];

   5. (5)

      in determining what conditions are appropriate in order to diminish the relevant risk posed by the defendant to an acceptable level the court will engage in the balancing exercise and the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and the kind of conditions that are likely to be effective: Fayad at [16]; Lynn V State of New South Wales [2016] NSW CA 57 at [129];

   6. (6)

      usually, it will be necessary for a condition to be imposed to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as demonstrating the relevant risk. However, the conditions that may be imposed do not have to demonstrate a link to past offending, rather, the court must be satisfied having regard to the scope, purpose and objects of the THRO Act that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Fayad [17]; Wilde at [53]; Wilkinson at [44];

   7. (7)

      there may be a sufficient connection between the conditions imposed and the risk of future offending being addressed if:

   8. (8)

      a common sense approach should be taken to the formulation of appropriate conditions. This involves avoiding conditions that are too restrictive and which may be counter-productive by exposing the defendant to the highly likely, if not inevitable, prospect of a breach and thereby commission of an offence. On the other hand, this approach also involves imposing conditions to ensure the safety and protection of the community in having the defendant adequately monitored and directed: Fayad at [18]; State of New South Wales V Osman [2021] NSW SC 124 at [43];

   9. (9)

      the court should bear in mind that the imposition of conditions creates a statutory offence if those conditions are breached. This consequence emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place: State of New South Wales v Ali at [88].

4. [245]

   In this matter there is not a significant dispute between the parties as to what conditions would be appropriate. There were conditions imposed for the purposes of the ISO and the defendant submits that there should be some minor adjustments to them.

5. [246]

   The most significant changes to the conditions imposed for the ISO are to the conditions requiring the defendant to notify his supervisors of his schedule of movements in advance and contact with his brother Jeremy Liddington.

6. [247]

   During the final day of the hearing on 7 April 2025, Ms Curry of counsel for the plaintiff and Senior Counsel for the defendant made submissions on the appropriate conditions by reference to the table of conditions being Annexure A to PFS (MFI 3). There were appropriate concessions made by each side such that the only substantive dispute (subject to the Court considering the conditions appropriate) was with respect to scheduling and contact with the defendant’s brother.

7. [248]

   As to scheduling, the defendant’s primary position is that it should be excluded from any conditions imposed. It was submitted that there was a significant doubt about the benefits of any kind of scheduling in actually mitigating risk sought to be addressed by the ESO. Dr Seidler was dubious about scheduling of movements being an effective and useful risk management tool. She did accept there was some benefits in a scheduling condition in terms of increasing pro-sociality and responsibility taking and engaging with authorities in a pro-social an open, communicative manner. However, she did not consider scheduling of movement to have a great impact in reducing recidivism. [46]

8. [249]

   Dr Dewson said that scheduling did not completely mitigate risk but ensures the authorities have an idea of where the person is and assists them in ensuring the person is engaging in prosocial activities. [47]

9. [250]

   In its final submissions, the plaintiff accepted that “dry scheduling” as opposed to strict scheduling would be appropriate in this case. Dry scheduling does not require specification of the exact time and day of the activity, including departure and return times and the exact proposed route of travel to be taken. I consider that the conditions proposed by the defendant at the hearing on 4 April 2025 with respect to dry scheduling is appropriate. Of the conditions of the ESO. I have referred above to the example of the defendant wishing to use the toilet and having to seek approval to divert from his approved route. Dry scheduling effectively requires the defendant to provide the supervising authorities with a list of places, activities and people that the offender anticipates he would like to do the following week, but without the level of detail required for strict scheduling.

10. [251]

    The defendants submitted that there should be no scheduling requirements. Whilst the benefits of electronic monitoring were also somewhat questionable, the defendant acknowledged the capacity of such monitoring to alert authorities to his presence in places he will not be an submitted that would be appropriate to have electronic monitoring without scheduling, rather than a scheduling condition.

11. [252]

    I consider that it is appropriate to have a scheduling requirement, although I do not consider a strict scheduling requirement as was imposed for the ISO is appropriate. The defendant has made progress, and I have mentioned some of the consequences of the strict scheduling at [43]-[44] above. I am conscious of balancing the need for supervision without imposing conditions of a severity that would give rise to a grievance. I accept the defendant’s proposed dry scheduling condition discussed at the hearing on 4 April 2025 is appropriate. This proposal allows for risk assessment of places, activities and people but it would not criminalise the failure to engage in such activities at a particular time or at all.

12. [253]

    In terms of contact with Jeremy Liddington, under the conditions of the ISO the defendant was unable to have any contact with his brother. Each of the experts were asked about the possible benefits and detriments of the defendant having supervised access with his brother. [48]

13. [254]

    The plaintiff proposed a condition which would allow an exception for contact between the defendant and his brother by SMS text message only with certain supervisory conditions. The defendant proposes a condition whereby the defendant may have contact with his brother at such reasonable times arranged by his enforcement officer with certain other conditions including that any contact, whether by telephone or text message or in person, would be monitored in real time.

14. [255]

    I consider the defendant’s proposed condition is more appropriate. The conditions proposed by the defendant mitigate any risk of the defendant and his brother discussing extremist views or other matters which might detract from the mitigation of the risk the subject of the ESO. Further, I consider that the condition encourages further rehabilitation of the defendant and decreases the likelihood of an increased sense of grievance by reason of the stringency of the condition.

15. [256]

    In terms of the other conditions, I consider those as discussed and agreed at the hearing of 4 April 2025 as being appropriate. I consider they address the relevant risk of reoffending and encourage the continued rehabilitation of the defendant.

Orders

1. [257]

   The orders of the Court are:

   1. (1)

      An order pursuant to ss 20, 25(1)(a) and 26(6) of the THRO Act, that the defendant is subject to an Extended Supervision Order for a period of 12 months from the date of the order.

   2. (2)

      An order pursuant to s 29(1) of the THRO Act, directing the defendant to comply with the conditions set out in the schedule to these reasons for the period of the Extended Supervision Order.