State of New South Wales v Mustapha (Preliminary)

1. [1]

   By a summons filed on 16 May 2025, the plaintiff, the State of New South Wales, seeks final relief against the defendant, Mejid Mustapha, by way of an extended supervision order (ESO) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act) for a period of three years from the date of the order together with an order that the defendant comply with the conditions set out in the schedule to the summons for the duration of the order.

2. [2]

   In addition, in the summons the State seeks preliminary relief of an interim supervision order (ISO), an order for compliance with conditions for the duration of the ISO, an order for the examination of the defendant by psychiatrists or psychologists and an order restricting access to the court file.

3. [3]

   On 7 August 2025, the matter came before me for hearing in relation to the preliminary relief sought.

4. [4]

   On that occasion, there was no dispute that the order restricting access to the court file should be made. Given the sensitivity of the material on the file and the fact that the effect of such an order would only be to ensure that the parties were given an opportunity to consider and make submissions in relation to whether access should be granted to a non-party, it is appropriate to make such an order.

5. [5]

   Accordingly, the hearing on 7 August 2025 concerned whether an ISO should made and, if so, the conditions that should be imposed as part of that order and whether an order for the examination of the defendant should be made.

Procedural background

1. [6]

   The defendant is a 38 year old man with a history of both general and violent offending. His head sentence of 3 years and 4 months for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 (the Index Offending), was due to expire on 7 December 2021.

2. [7]

   By a summons filed on 7 September 2021, the State initially sought a continuing detention order (CDO) and other relief against the defendant under the THRO Act. After a preliminary hearing, Walton J made an interim detention order (IDO) and orders for the examination of the defendant under s 24(5) of the THRO Act: State of New South Wales v Mustapha [2022] NSWSC 87; 295 A Crim R 296 (the 2021 judgment). The IDO was extended a number of times. When the matter came on for hearing before N Adams J as to the final relief sought, the State amended its summons to seek an ESO rather than an CDO in light of the reports obtained as a result of the examination orders.

3. [8]

   On 14 February 2022, N Adams J made an ESO for three years and ordered that the defendant comply with certain conditions for the duration of the ESO: State of New South Wales v Mustapha (Final) [2022] NSWSC 116 (the 2022 judgment).

4. [9]

   As a result of further time spent in custody because of sentences for other offending, the ESO imposed by N Adams J was suspended by virtue of s 26(6) of the THRO Act. The consequence of the suspension of the ESO is that it is now due to expire on 15 August 2025.

5. [10]

   By the present proceedings commenced on 16 May 2025, the State seeks a further ESO against the defendant and, in order to ensure the protection of the community and allow a proper consideration of that application, interim relief by way of an ISO and examination orders.

6. [11]

   In order to consider the claims for interim relief it is necessary to review the relevant statutory provisions and the principles applicable in respect of those provisions.

Relevant statutory provisions

1. [12]

   Section 3 of the THRO Act sets out the objects of the Act as follows:

2. [13]

   It follows that the THRO Act is directed to protecting the community from serious terrorism offences rather than other types of offending, no matter how serious.

3. [14]

   The expression “serious terrorism offence” is defined in s 4 of the THRO Act as an offence against Pt 5.3 of the Commonwealth Criminal Code (the Code) for which a maximum penalty of seven or more years of imprisonment applies. Part 5.3 includes various offences with a maximum penalty of 7 years or more including, by way of example:

   1. (1)

      engaging in a terrorist act, for which the maximum penalty is imprisonment for life, under s 101(1);

   2. (2)

      possessing things connected with terrorist acts which, depending on whether the person knew or was reckless as to the connection, carry maximum penalties of 15 and 10 years respectively, under s101.4(1) and (2);

   3. (3)

      intentionally being a member of a terrorist organisation, knowing it to be such an organisation, which carries a maximum penalty of 10 years’ imprisonment, under s 102.3(1); and

   4. (4)

      intentionally providing to a terrorist organisation support or resources that would help it engage in preparing, planning, assisting in or fostering the doing of a terrorist act, for which the maximum penalty of is imprisonment for 25 years if the organisation is known to be a terrorist organisation and 15 years if the person is reckless as to whether it is a terrorist organisation, under s 102.7(1) and (2).

4. [15]

   A “terrorist act” includes not only action but also threatening action. The expression “terrorist act” is defined in s 100.1(1) of the Code as meaning:

5. [16]

   Subsections (2) and (3) of s 100.1, which are referred to in the definition of “terrorist act”, are in the following terms:

6. [17]

   Although the introductory words to the definition of “terrorist act” and par (b) of that definition refer to “threat” of action, par (a) of the definition of “terrorist act” and s 100.1(2) and (3) refer to “action” alone. These latter provisions are, however, to be understood as defining the parameters of “action” whether actual or threatened: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (Naaman No 2 CA) at [34]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44].

7. [18]

   A “terrorist act”, referred to in various offences against Pt 5.3, has the “intention” elements specified in pars (b) and (c) of the definition in s 100.1. The Code relevantly explains “intention” for these purposes in s 5.2(3) as follows:

8. [19]

   The structure of the THRO Act indicates that its purpose is to maintain the safety and protection of the community against the risk posed by an offender of committing a serious terrorism offence by two principal means: continuing detention orders or CDOs or extended supervision orders or ESOs. The present case involves an application only for an ESO and not a CDO. At this preliminary stage, the State is only seeking an ISO and related orders. ESOs and ISOs are governed by Pt 2 of the THRO Act (ss 19 - 32).

9. [20]

   Part 2 of the THRO Act includes s 22 which provides that the State may apply to the Supreme Court for an ESO and s 23 contains the requirements with respect to applications for ESOs. Since there was no issue between the parties that these requirements were met in the present case and I am satisfied that they have been met, it is not necessary to consider these provisions further at this point.

10. [21]

    Pre-trial procedures in relation to applications for an ESO are addressed in s 24 of the THRO Act. Once again, since this judgment deals only with the application for an ISO and examination orders and there is no issue in the present case concerning the procedures under s 24, it is only necessary to note that s 24(5) indicates that one function of the preliminary hearing conducted under s 24(4) is to enable the Court to obtain appropriate and recent psychiatric and psychological reports in respect of the defendant so that a properly informed decision can be made at the final hearing concerning whether to make an ESO. These reports are mandatory considerations to which the Court must have regard, under s 25(3) of the THRO Act, when determining whether to make an ESO.

11. [22]

    In addition, in order to allow an application for an ESO to be considered on a properly informed basis with the benefit of reports obtained under s 24(5) and without undue time pressure, s 27 permits the Court to make an ISO if, as provided in s 27(a), it appears to the Court that the offender’s current supervision will expire before the proceedings are determined and the condition in s 27(b) is satisfied. There was no dispute that the condition in s 27(a) was met in the present case, and given the circumstances and the expiry of the defendant’s current ESO on 15 August 2025, I accept that this position is correct.

12. [23]

    It is significant that ss 24(5) and 27(b) contain, amongst other things, the same test which must be satisfied before the orders under those sections can be made.

13. [24]

    Section 24(5) provides:

14. [25]

    If the Court is satisfied of the matter in the chapeau to s 24(5), the order for examinations and reports is mandatory; the Court “must make [those] orders”. The situation concerning making an ISO under s 27 is different.

15. [26]

    Section 27 is in the following relevant terms:

16. [27]

    Thus, under s 27, if the Court is satisfied of various matters, including that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court has a discretion whether or not to make an ISO: State of New South Wales v Richardson (Preliminary) (No 2) [2023] NSWSC 794 at [9] (Campbell J).

17. [28]

    Notwithstanding that difference, the principal question that must be determined, under both ss 24(5) and 27(b), for the purposes of this preliminary hearing, is whether the matters alleged in the “supporting documentation” would, if proved, justify the making of an ESO.

18. [29]

    The phrase “supporting documentation” in relation to Pt 2 of the THRO Act is defined in s 4(1) as meaning “the documentation referred to in section 23(3)”. Section 23(3) is in the following terms:

19. [30]

    Determining whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO requires the Court to consider the matters of which it must be satisfied before it may make an ESO. These matters are set out in s 20, which relevantly for present purposes provides:

20. [31]

    There was no dispute for the purposes of the present preliminary application that the requirements of s 20(a), (b) and (c) were satisfied in the present case and, in light of all the evidence, I am satisfied that this is correct.

21. [32]

    As to the assessment of risk in s 20(d), s 21 of the THRO Act provides some guidance in the following terms:

22. [33]

    Furthermore, in making a determination whether to make an ESO the safety of the community must be the paramount consideration, by virtue of s 25(2). Finally, s 25(3) contains a non-exclusive list of matters to which the Court must have regard in determining whether or not to make an extended supervision order in respect of an eligible offender as follows:

General principles concerning the making of an ESO or an ISO

1. [34]

   As has already been noted, the test in ss 24(5) and 27(b) which must be satisfied before examination orders or an ISO can be made is whether the Court “is satisfied” or “it appears to the Court”:

2. [35]

   The expression “matters alleged” has been held to refer to facts rather than conclusions. In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J said that the test does not require "prima facie" proof of the matters alleged and continued:

3. [36]

   In my view, Rothman J’s comment that the phrase “matters alleged” refers to facts not conclusions should be understood as distinguishing between facts, including inferences and expert opinions based on other facts, on the one hand, and, on the other hand, necessary or ultimate conclusions as to the issues which the Court has to decide, for example whether a defendant poses an unacceptable risk of committing a serious terrorism offence.

4. [37]

   Thus, if the supporting documentation included an expert psychiatrist’s or psychologist’s opinion as to the likelihood of the offender committing a serious terrorism offence, as referred to in s 23(3)(b) and (c), that opinion would be a “matter alleged” in the supporting documentation. If other matters alleged in the supporting documentation provided a substantial reason to doubt the validity or correctness of such an opinion, that would be a matter that should be taken into account in determining whether to refuse to exercise the discretion to make an ISO if the power to do so under s 27 is enlivened.

5. [38]

   Further, Campbell J held in State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 at [48] that in applying the test in ss 24(5) and 27(b):

6. [39]

   The words “would … justify the making of an [ESO]” in ss 24(5) and 27(b) are capable of imposing a higher or a lower test to be met. They could require the Court to be satisfied that an ESO should actually be made, in the light of the matters alleged. Alternatively, those words might require satisfaction of a lesser standard, that the power to make an ESO could be enlivened, having regard to the matters alleged.

7. [40]

   The Court of Appeal has endorsed a construction of ss 24(5) and 27(b) that involves a “lower standard” in determining whether to grant interim orders compared to the standard that is to be applied when determining whether to make an ESO under s 20 of the THRO Act. In Naaman (No 2) CA, the Court said at [17] (Basten, Macfarlan and Leeming JJA):

8. [41]

   N Adams J accepted that the test on a preliminary application under the THRO Act is a “low one” in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]. Garling J took the same approach in State of New South Wales v Sturgeon [2019] NSWSC 559, when considering substantially the same wording in the Crimes (High Risk Offenders) Act 2006 (NSW). His Honour said at [5] - [6]:

9. [42]

   Determining whether the making of an ESO would be justified or open, assuming the matters alleged in the supporting documentation are proved, requires consideration of the test in s 20(d) of the THRO Act of whether the Court is “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order”. In relation to this paragraph, the Court of Appeal has held in Naaman No 2 CA at [29] (Basten, Macfarlan and Leeming JJA):

10. [43]

    Bearing in mind these provisions and principles, I turn to consider the principal issue for determination on this interim application which is in effect whether, on the assumption that the matters alleged in the “supporting documentation” are proved, it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order.

The ”supporting documentation”

1. [44]

   The “supporting documentation”, being the documentation supporting the application which addresses each of the matters in s 25(3) and includes a report prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert that assesses the likelihood of the defendant committing a serious terrorism offence, was adduced by the State by way of:

   1. (1)

      the affidavit of Aleksandra Jez of 15 May 2025 and exhibit AJ1 to that affidavit. Exhibit AJ1 contained supporting documentation including most pertinently (without being exhaustive):

   2. (2)

      a second affidavit of Aleksandra Jez of 27 June 2025 and exhibit AJ2 to that affidavit. Exhibit AJ2 contained supporting documentation including most pertinently (without being exhaustive):

   3. (3)

      a third affidavit of Aleksandra Jez of 4 August 2025 with annexures which contained supporting documentation including most pertinently (without being exhaustive):

   4. (4)

      an affidavit of Jonathon Hamilton-Foster of 22 April 2025 concerning the remote monitoring by New South Wales police of the defendant’s account by which he accessed the internet and included annexures detailing the defendant’s accessing sites in May 2022, October and November 2024;

   5. (5)

      an affidavit of Katrina Czerkies of 5 June 2025 providing information concerning Corrective Services NSW’s CVE program and the defendant’s engagement with that program, noting that if the defendant is no longer subject to an ISO or ESO he will not be eligible for engagement with that program but would be referred to a different program in the community such as the Engagement and Support Program (ESP); and

   6. (6)

      an affidavit of Heather Jackson of 10 June 2025 providing information concerning the ESP and the defendant’s previous unwillingness to engage with that program.

2. [45]

   In addition, the supporting documentation included a statement of agreed facts signed on behalf of the parties and filed on 6 August 2025, which helpfully summarised some of the most pertinent information.

3. [46]

   The defendant’s evidence was the affidavit of Joseph Harding of 28 July 2025 and the affidavit of Marie Iskander of 28 July 2025. It was accepted that none of this material was “supporting documentation” for the purposes of ss 24(5) and 27(b) and it was only adduced in relation to the residual discretion under s 27(b) and in relation to the conditions that might be imposed if an ISO were made.

4. [47]

   The matters alleged in the supporting documentation include what is set out in the following paragraphs concerning the defendant’s background, his criminal history, the Index Offending, the material downloaded from his telephone and hard drive, incidents while in custody, his conduct while on the IDO and the first ESO and the opinions concerning the risk posed by the defendant. While I have reviewed the supporting documentation as a whole and my attention was drawn to many specific parts of the documentation, I have not for example read in detail every page of the OIMS notes or looked at every video recording of internet material accessed by the defendant, given the time available and the fact that the experts’ reports analysed this material and there was no suggestion that their opinions were not properly founded. The following paragraphs provide an adequate summary of the most pertinent matters alleged in the supporting documentation upon which my determination is based.

The defendant’s background

1. [48]

   The defendant was born in Sydney and is 38 years old. He was raised in Merrylands by his aunt and uncle, whom he understood to be his biological parents. At about the age of 14 years, the defendant found out that he was adopted. This revelation was experienced as a significant betrayal, leading to escalating emotional dysregulation, family conflict, and a decline in behavioural functioning. His biological mother is of Lebanese descent and his father is of Samoan descent. The defendant has one half-sister who lives in Lebanon.

2. [49]

   The defendant disclosed to Dr Seidler memories of going for walks as a child with his aunt, who wears a head scarf, and being called “cockroaches” by people in the area, as well as being told to “go back to your country”.

3. [50]

   The defendant attended primary school and high school in Parramatta but reported that his academic functioning was poor, with significant challenges in comprehension, attention, hyperactivity, restlessness and language. He left school in year 8 or 9 and was employed in plumbing and cement rendering. He subsequently worked as a courier but was unable to maintain long-term employment. He used drugs to some extent during this period.

4. [51]

   The defendant reported having been exposed to the scene of two deaths when he was 18 years old. According to the defendant, the two men, who were friends of his maternal uncle, had been shot and the defendant encountered them after walking onto the street. The defendant indicated that he had a close relationship with one of the men and experienced insomnia and panic attacks for a short time after the incident.

5. [52]

   The defendant was married at about the age of 21 but the marriage lasted only one to two years. He has not had any other significant relationships since and is presently single. The defendant reported feeling depressed after his divorce and was treated with antidepressant medication for three months, until he self-discontinued the medication. The defendant also had a subsequent period of increased drug and alcohol use, including using cocaine, cannabis, and abusing prescription medications, including Tramadol, Valium, Xanax. The defendant attributed his increasing substance use to his psychological pain, confusion, and escalating paranoia. He also reported experimenting with amphetamines, crystal methamphetamines, “acid” and ecstasy.

6. [53]

   The defendant said that, while he was growing up, he regularly travelled overseas, including to Lebanon, with his family. On the defendant’s account, in 2014, his uncle, his aunt’s brother, was reportedly captured by Islamic State whilst being involved in the Lebanese Army. The defendant said that he and his aunt travelled to Lebanon to try and advocate for his uncle’s release, but that his uncle was killed by Islamic State. He described this as having been a significant loss for him, as he was particularly close to this uncle, having spent a great deal of time with him during his formative years.

7. [54]

   In 2015, the defendant travelled to Turkey, where he was imprisoned by Turkish Authorities for approximately four weeks on suspicion of violating the border into Syria. The defendant was interviewed by Australian Federal Police upon his return. The defendant was not charged with any offences but his passport was confiscated. According to the defendant, he travelled to Turkey for humanitarian purposes to assist with the influx of Syrian refugees.

8. [55]

   In relation to the defendant’s mental health, he has recently been diagnosed with Autism Spectrum Disorder (ASD) Level 1 (requiring support) with accompanying intellectual impairment. Previously, he had been diagnosed with chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, with an additional comorbid diagnosis of Substances Misuse Disorder. The defendant has been described as possessing a number of "personality traits which have contributed to cognitive, affective and behavioural dysregulation" and which have had "significant negative impact on his life". He appears to possess an "unstable" self-image, insecure attachment style and a chronic sense of abandonment and emptiness which has contributed to his experience of strong and overwhelming emotions such as anxiety, anger and depression.

Criminal history prior to the Index Offending

1. [56]

   The defendant’s criminal history includes traffic offences, drug offences, resist/assault police type offences, and assaults. He has, however, never been convicted of a serious terrorism offence or any other terrorism offence.

2. [57]

   In 2005, at the age of 17, the defendant was cautioned by the Children's Court for an offence of assaulting an officer in the execution of his duty and in 2007, a similar offence was dismissed without conviction by the Local Court.

3. [58]

   In 2010, the defendant was convicted of assault occasioning actual bodily harm for punching a security guard at a bar. He was sentenced to a two-year good behaviour bond.

4. [59]

   Between 2012 and 2018, the defendant was convicted of various offences including possessing prohibited drugs, possessing (or attempting to possess) a restricted prescribed substance, possessing equipment for administering prohibited drugs, and driving while his licence was suspended.

5. [60]

   On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm when he attended the victim’s home, where the victim’s wife and three young children were also present. The defendant engaged the victim in conversation outside, and when the victim turned to go inside, without warning, the defendant struck him to the left side of the face from behind, knocking the victim to his hands and knees. The defendant then kicked the victim in the head, knocking him backwards, and his head hit the concrete.

6. [61]

   On 6 March 2018, the defendant was arrested and charged with recklessly causing grievous bodily harm and was released on bail. On that day, the defendant’s iPhone was seized and accessed, photographs of the telephone were taken and videos and photographs were eventually downloaded from the telephone. It can be noted at this point that on 10 October 2019, the defendant was convicted in respect of the recklessly inflicting grievous bodily harm offending committed on 5 March 2018 and was sentenced to a fixed term of imprisonment of 15 months, commencing on 22 July 2019 and expiring on 21 October 2020. He was also convicted with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for failing to appear in accordance with his bail acknowledgement.

The Index Offending

1. [62]

   While on bail in respect of the offending on 5 March 2018, the defendant committed the Index Offending, which arose out of the following circumstances. On 7 August 2018, the defendant was arrested for breaching his bail conditions and was taken to Parramatta Police Station. Upon arrival there, he was asked to remove his hooded jumper from his head by officers. The defendant then became agitated and aggressive, and yelled at an officer in Arabic "my dick in you and your mum's a cunt", and, in English, "you Indian cunt, I'll knock you out". The defendant then gestured to the officer and, without warning, raised his right hand and punched the victim with a closed fist to the right side of the face, knocking him back. The officer suffered swelling, soft tissue damage, and bruising to the right side of his face.

2. [63]

   Following a violent struggle between the defendant and other officers present, the defendant was handcuffed and placed inside a cell in the charge room. The defendant then made the threats towards a Senior Constable who was present:

3. [64]

   He then turned towards another Constable and said:

4. [65]

   The defendant also head butted, and spat on, the cell door.

5. [66]

   On 7 August 2018, during the arrest of the defendant, his Nokia mobile telephone was seized and eventually files were downloaded from that telephone.

6. [67]

   On 10 August 2018, during the execution of a search warrant at the defendant’s premises a Toshiba hard drive was seized and subsequently material was downloaded from the hard drive including material from the defendant’s social media accounts.

7. [68]

   On 14 December 2018, the defendant was convicted and sentenced in respect of the Index Offending, having pleaded guilty in the Local Court to the following offences committed against Police and Corrective Services officers:

   1. (1)

      Assault law enforcement officer (not police) inflicting actual bodily harm, contrary to s 60A(2) of the Crimes Act 1900 (NSW);

   2. (2)

      Destroy/damage property, contrary to s 195 of the Crimes Act;

   3. (3)

      Two offences of intimidate police officer in execution of duty without actual bodily harm, contrary to s 60(1) of the Crimes Act; and

   4. (4)

      Three offences of resist officer in the execution of duty, contrary to s 58 of the Crimes Act.

8. [69]

   In sentencing the defendant for the Index Offending, Magistrate Still remarked that the offences were “serious”, though some of the offences were far worse than others, and expressed guarded views about the defendant’s expression of remorse and his need for psychological treatment. The Magistrate imposed an aggregate sentence of imprisonment for 3 years and 4 months, commencing on 8 August 2018 and expiring on 7 December 2021, with a non-parole period of 2 years and 1 month, expiring on 7 September 2020. This sentence was confirmed on appeal to the Parramatta District Court on 30 January 2019.

Material downloaded from the defendant’s telephone and hard drive

1. [70]

   In relation to the material downloaded from the defendant’s iPhone, Nokia telephone and the Toshiba hard drive in 2018, Dr Shanahan an expert in Arabic and Islamic studies, terrorism and political violence, opined that the content of some of those materials was consistent with the ideological position espoused by violent extremist groups such as Islamic State. In addition, Dr Shanahan identified photographs taken from the defendant’s iPhone which contained:

   1. (1)

      contact names which may have relevance to violent extremism;

   2. (2)

      materials produced by Islamic State’s al-Ajnad media, and jihadi nasheeds;

   3. (3)

      messages recommending that the defendant follow (online) people with connections to individuals associated with violent extremism; and

   4. (4)

      references to Telegram channels for individuals who have expressed support for violent extremist views in the past, or with names suggestive of violent extremism.

2. [71]

   In relation to the audio files identified on the defendant’s Nokia phone in 2018, Dr Shanahan stated that the audio files were Islamic State nasheeds, both of which were produced by Islamic State’s al-Ajnad media group. He was of the view that both the nasheeds were “closely associated with the violent, Salafist-Jihadist ideology espoused by Islamic State”, with one talking about “beheading the enemy”.

3. [72]

   In relation to the social media materials which were downloaded or otherwise captured from the social media accounts which appear to have been operated by the defendant in 2018, Dr Shanahan considered that some of these materials contained pictures and text associated with violent extremism.

4. [73]

   Dr Shanahan was also of the opinion that the statement made by the defendant in the course of the Index Offending committed in 2018 was consistent with support for terrorist acts. In particular, Dr Shanahan noted that

Incidents while in custody after the Index Offending

1. [74]

   On 22 July 2019 while in custody, the defendant wrote a letter to the Governor of Parklea Correctional Centre, intelligence officers and the judge presiding over his then ongoing criminal case in respect of the reckless grievous bodily harm offence committed on 5 March 2018. The letters, where were stopped at the Correctional Centre, included the following:

   1. (1)

      "We disbelieve in your laws";

   2. (2)

      called the intended recipients "murderers" due to Australia's perceived involvement in "war on Islam" referring to the conflicts in Iraq/Syria (with reference to specific towns);

   3. (3)

      referred to inmates in custody charged with murder as "brothers";

   4. (4)

      "Tawagheet of 2day" and "murtadeen";

   5. (5)

      indicated that he rejects democracy, and referenced the nasheed "Clashing of the swords".

2. [75]

   Dr Shanahan opined that this letter was “consistent with the ideological view that there is a war on Islam and its followers, which is a fundamental argument espoused by jihadist groups such as al-Qa’ida and Islamic State.” The “Clashing of the swords” referred to an Islamic State nasheed released in 2014 that accompanied videos that showed fighting and executions and its lyrics extolled virtues of fighting in the name of religion.

3. [76]

   In September 2019, Corrective Services photographed the defendant's body. The tattoos included the word "Jehad" and a depiction of an AK-47 machine gun. Dr Shanahan stated that the AK-47 weapon is a mainstay of jihadist groups around the world, and was of the opinion that “jehad/jihad in this context could reasonably be understood to mean a religious obligation to undertake armed action against designated enemies of Islam.”

4. [77]

   On 24 October 2019, the defendant was designated a National Security Interest (NSI) inmate.

5. [78]

   On 9 March 2020, during the course of a targeted cell search the defendant became verbally aggressive about the manner in which his religious books were handled, and then became physically aggressive in the course of being restrained after failing to comply with directions. The searching officer stated he was also Muslim and had taken care to not be disrespectful to the books whilst searching. Specifically, the defendant was upset that officers moved the defendant's TV on top of his copy of the Quran during the search. The defendant stated to the Muslim searching officer, "you've got to choose your side, you chose your side, you can't be Muslim and do that"; "you can't be on this side and say you're Muslim and then go against your brother"; "you got no respect"; "look what he's done to my fucking books. Where's the respect there brah?"; "what do you mean what's wrong? you've got the TV on top of the Quran … respect my fucking books cuz."

6. [79]

   Correctives Services restrained the defendant before he was moved to an isolated cell. While being restrained the defendant said, "I'm going to fuck your mum you fucken dog"; "you traitor cunt"; "you call yourself a Muslim you're a fucken murtad". The defendant then made threats of violence towards staff, including "I'm going to put holes in you"; "I'm going to fucken kill you" and "I am going to cut your throats and rape your mothers”.

7. [80]

   During the course of the cell search, Corrective Services officers also identified graffiti on the cell wall, including a picture of what appeared to be a machine gun, with the word "Klashiknove" written underneath and the abbreviation "NSI" with the words "National Security Interest" written in small letters underneath.

The Initial IDO and the first ESO

1. [81]

   As noted above, on 6 December 2021, Walton J made an IDO and, on 14 February 2022, N Adams J made the final ESO for three years from 14 February 2022.

Conduct while on the IDO and first ESO

1. [82]

   On 13 December 2021, whilst in custody at the Metropolitan Remand and Reception Centre pursuant to the IDO, the defendant became involved in a physical altercation with other inmates, during which the defendant threw two punches to another inmate’s head, causing that inmate to fall backwards onto the pavement. On 20 June 2022, following a guilty plea, the defendant was convicted of the offence of assault occasioning actual bodily harm and sentenced to a 12-month Community Correction Order.

2. [83]

   The defendant was first approached by Corrective Services in relation to CVE (PRAXIS) on 2 March 2022 and he provided formal consent to participation in the program on 26 April 2022. The defendant has been engaged with the PRAXIS program during his current ESO, while not in custody, until 26 May 2025.

3. [84]

   On 24 November 2022, as part of his supervision under the ESO, police officers attended the defendant’s residence and recorded an interaction with him on body worn video. During this interaction, the defendant made the following statements:

   1. (1)

      In relation to his previous comments concerning the January 2015 terrorist attack at the offices of the satirical magazine Charlie Hebdo in Paris:

   2. (2)

      When asked whether he had previously stated that if someone insulted the Prophet in front of him he would “smash them”:

   3. (3)

      In relation to his religious views:

   4. (4)

      In response to police saying it is their job to ensure the defendant complied with his order the defendant said:

4. [85]

   In relation to these views expressed by the defendant, Dr Shanahan identified that there were a number which conveyed support for terrorist acts or violent extremism, namely the January 2015 Paris terrorist attack on the Charlie Hebdo offices. In addition, Dr Shanahan was also of the opinion that the defendant’s statements were consistent with the views expressed by al- Qa’ida and Islamic State in relation to government and man-made laws.

5. [86]

   On 26 July 2023, whilst subject to the first ESO, the defendant attended his workplace and approached a colleague operating a pallet rider. The defendant stated, “I heard you were talking shit about me”, and when the victim did not respond, the defendant punched the victim with a closed fist, hitting the victim’s right cheek bone/jaw area. The force of the punch made the victim fall to the ground on his back, and hit the back of his head on the concrete with force.

6. [87]

   When other colleagues who had witnessed the incident took the victim out of the warehouse, the defendant continued to attempt to follow the victim and said to the victim and witnesses, “get back to work, don’t fucking say anything”. The defendant was holding a Stanley knife by his leg, flicking the blade up and down, and stated, “if anyone snitches, I’m going to kill you and your families”.

7. [88]

   On 27 July 2023, the defendant was arrested and charged with the following offences in connection with his conduct on the day before:

   1. (1)

      Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act;

   2. (2)

      Armed with intent to commit indictable offence, contrary to s 114(1)(a) of the Crimes Act;

   3. (3)

      Three charges of Threat/cause injury/harm to prevent information to police, contrary to s 315A(1) of the Crimes Act; and

   4. (4)

      Fail to comply with extended supervision order, contrary to s 30 of the THRO Act.

8. [89]

   It can be noted at this point that, on 18 October 2023, following a guilty plea, the defendant was sentenced before Parramatta Local Court to 12 months imprisonment, commencing 27 July 2023 and expiring 26 July 2024, with a non-parole period of 6 months. The sentencing Magistrate observed in relation to the failure to comply with the ESO:

9. [90]

   As noted above, while the defendant was in custody for these offences, the ESO was suspended under s 26(7) of the THRO Act. The defendant was released to parole on 26 January 2024.

10. [91]

    On 3 August 2023, police attached to the High Risk Terrorist Offenders Unit (HRTOU) executed a search warrant at the Guildford address where the defendant had been residing. During the search, police located a mobile phone belonging to the defendant, which was seized. An orange box cutter/Stanley knife was located under the lounge which was also seized.

11. [92]

    Dr Shanahan has reviewed, in addition to the material referred to above, the OIMS case notes in relation to the defendant made from 15 February 2022 to 3 April 2025 and CVE Program PRAXIS Progress Notes for the period from 2 March 2022 to 29 January 2025. Dr Shanahan was of the opinion that statements made by the defendant recorded in those notes demonstrated that he had a view of violent jihad within Islam which was consistent with the interpretation held by radical Islamist terrorist groups such as Islamic State and al-Qa’ida. Dr Shanahan further considered that the defendant’s stated rejection of man-made laws, his statements in relation to non-Muslims, and his statements in relation to homosexuality were consistent with the stances advocated by Islamic State and al-Qa’ida.

12. [93]

    The defendant has remained engaged with CSNSW CVE (PRAXIS) from 26 April 2022 during his first ESO, excluding a period of approximately 7 months whilst he was in custody as a result of being sentenced for the 26 July 2023 offending referred to above. He voluntarily participated in over 70 psychological sessions with PRAXIS. Until about 28 April 2025, he actively engaged with the PRAXIS service and presented as forthcoming and willing to discuss issues pertinent to the needs and goals outlined in his intervention plan. The defendant’s engagement was described as consistent. The defendant engaged predominantly with a psychologist, and intermittently with a Religious Support Officer. The defendant continued to engage with PRAXIS and was willing to work with another psychologist when he was informed of a staff change in mid-2024.

13. [94]

    On 26 May 2025, 11 days after the present proceedings commenced, during a phone call with Community Corrections, the defendant cancelled a PRAXIS appointment. He said that he was feeling overwhelmed and this led to expressions of frustration of how he got onto the order in the first place, noting he felt like this was due to seeing a psychologist. He said he wants to engage in PRAXIS, he just needed a short break.

14. [95]

    On 28 May 2025, police attached to the HRTOU and Community Corrections Officers attended the defendant’s residence. During this attendance, the defendant stated that he wanted to disengage with PRAXIS leading up to the hearing in the present proceedings “as he did not want to think about anything that is related to it as it stresses him out”. The defendant stated that he was willing to re-engage with PRAXIS if he received a further ESO.

15. [96]

    If the defendant is not subject to a further ESO, he will not be eligible to engage with CSNSW CVE (PRAXIS) following the expiry of his current ESO. The defendant can be referred to ESP, regardless of whether he is subject to an ESO. The defendant has been found to be eligible for the ESP and can be referred to the program at any time, including if he is no longer subject to an ESO.

The risk posed by the defendant

1. [97]

   For the purpose of reaching her decision in relation to the first ESO, N Adams J considered the relevant reports of the expert psychiatrists and psychologists before the Court at that time concerning the risk then posed by the defendant, in particular: the report of Ms Filipa Abreu, Senior Psychologist, dated 20 July 2021; the report of Dr Katie Seidler dated 18 January 2022; and , the report of Dr Sathish Dayalan dated 21 January 2022. This material is included in the evidence before me. I respectfully adopt her Honour’s consideration of those reports, set out in the 2022 judgment. It is unnecessary to repeat that consideration here but this judgment should be read in conjunction with her Honour’s 2022 judgment and the 2021 judgment of Walton J, dealing with the IDO imposed by his Honour.

2. [98]

   As to the expert assessments of the risk currently posed by the defendant, the supporting documentation included most significantly:

   1. (1)

      the risk assessment report dated 30 April 2025 of Ms Ahu Kocak, registered psychologist, which the State relied on as the report referred to in s 23(3)(b) of the THRO Act; and

   2. (2)

      the risk assessment report dated 8 April 2025 of Dr Tamara Sweller, registered psychologist, which the State did not rely on as the report referred to in s 23(3)(b) but which was accepted as being a report which addressed the matter in s 25(3)(b) of the THRO Act and thus was documentation referred to in s 23(3)(a).

3. [99]

   In addition, in relation to the conditions which might be imposed as part of an ISO, the supporting documentation included:

   1. (1)

      the risk management report dated 5 May 2025 of Ms Lily Fewster and Mr John Banton, officers of Corrective Services NSW (with Annexure 2 dated 13 May 2025) which addressed the matter in s 25(3)(d) and thus was documentation referred to in s 23(3)(a); and

   2. (2)

      the risk management report dated 14 May 2025 of Detective Senior Constable Jimmy Wang being reports which addressed the matter in s 25(3)(d) and thus was documentation referred to in s 23(3)(a).

4. [100]

   Ms Kocak is a registered psychologist with an academic and professional background which has contributed to her expertise in forensic risk assessment and treatment of offenders. She prepared her report of 30 April 2025 on the basis of the information provided to her by the Crown Solicitor’s Office. She did not have the opportunity to interview the defendant for the purposes of the assessment and report as he did not consent to participate. Ms Kocak noted, in effect, that this “limits the ability to directly assess his current thoughts, intentions and degree of attitudinal or behavioural change.”

5. [101]

   Ms Kocak noted the material which supported the conclusion that the defendant had a history of support for violent extremism or ideologically/religiously motivated violence and earlier risk assessments made by Ms Abreu, Dr Dayalan and Dr Seidler. As to his progress since being on the ESO, it was noted that the defendant appeared to attempt to adhere to strict interpretations of Islam in understanding and complying with the ESO conditions and in decisions he makes around employment, socialisation and engagement with services. The defendant’s previous diagnoses of Adjustment Disorder with mixed Anxiety and Depressed Mood, Antisocial Personality Disorder and Substance Use Disorder were noted as well as the later diagnosis of Autism Spectrum Disorder Level 1 and possible Unspecified Schizophrenia Spectrum and Other Psychotic Disorders. Ms Kocak was of the view that he presented with

6. [102]

   It was noted that the defendant had been “primarily compliant” with his conditions and appeared to exhibit

7. [103]

   Ms Kocak said that the defendant had presented with a trusted relationship with PRAXIS psychology staff, often utilising the service to “vent” any frustrations or distress, assisting with the de-escalation process. It was accepted that since being on the ESO, the defendant had been “largely open and transparent” regarding his attitudes and views towards concepts that would constitute support or sympathy for violent extremism or religiously motivated violence. Ms Kocak referred to the defendant’s expressed views concerning violence and Islam as well as support for ISIS, although it was noted that he was recorded as stating that upon reflection he had no direct intention or plan to participate in jihad but stood by the fact that it was an option for all Muslims.

8. [104]

   Utilising the Violence Risk Appraisal Guide – Revised (VRAG-R), an actuarial risk assessment tool designed to assess the risk of future ordinary violence in offenders, it was assessed that the defendant was in the “risk bin” for offenders whose risk level was just over twice as high as the risk posed by the typical violent offender and 60% of offenders in that bin reoffended violently within five years. In addition, the Terrorist Radicalisation Assessment Protocol (TRAP-18) which provides a template to structure professional judgment in the assessment of persons considered to be at risk of “lone actor” terrorist attacks or targeted extremist violence was readministered based on all available material. Ms Kocak concluded that under the TRAP-18 the defendant had

9. [105]

   Ms Kocak noted that the application of the Violent Extremism Risk Assessment – Version 2 Revised (VERA-2R) previously by Ms Abreu led to an assessment identified as “Moderate-High risk of engaging in violent extremism or terrorism” but Ms Kocak does not carry out an assessment designed to yield a quantitative assessment, as I understood her report. Rather, Ms Kocak set out in some detail her analysis of relevant factors noting that in relation to the defendant’s beliefs, attitudes and ideology there was a “High loading of risk indicators”, in relation to his social context and intention there was a “Low-Moderate loading of risk indicators”, in relation to his history action and capacity there was a “Moderate loading of risk indicators”. She also noted the protective factors in the defendant’s case.

10. [106]

    Ms Kocak was of the opinion that neurodevelopmentally, the defendant presented with impairments that have profoundly shaped his cognitive style and emotional and social development. In particular it was noted that the defendant

11. [107]

    Ms Kocak was also of the opinion:

12. [108]

    Notwithstanding those apparent qualifications, Ms Kocak was of the opinion that the defendant “does pose a risk of committing a serious terrorism offence… If he is not subject to an ESO…”. This was said to arise predominantly out of his emotionally reactive, grievance-driven, ideologically justified violence rather than premeditated, sophisticated terrorist acts but his vulnerabilities were said to create specific risks that in her opinion “could satisfy the legal threshold of a ‘serious terrorism offence’”. More particularly, Ms Kocak’s assessment was that the defendant posed:

    1. (1)

       a “Moderate to High” risk of engaging in a terrorist act “S 101[.1]” with the “risk scenario” being:

    2. (2)

       a “Moderate to High” risk of possessing things connected with terrorist acts “S 101.4” with the risk scenario being:

    3. (3)

       a “Moderate” risk of membership of a terrorist organisation “S 102.3”with the risk scenario being:

    4. (4)

       a “Moderate” risk of providing support to a terrorist organisation “S102.7” with the risk scenario being:

13. [109]

    Ms Kocak also provided answers to other questions asked of her including what treatment the applicant may require and what conditions were appropriate in any supervision order. In that latter regard, it was said:

14. [110]

    Dr Sweller, a registered psychologist, was asked to prepare a risk assessment report for the purposes of s 23(3)(b) of the THRO Act and did so. It was the State’s case, however, that when requested to consider additional documentation and prepare a supplementary report, leave prevented her doing so. In these circumstances the State sought to rely on Ms Kocak’s report rather than Dr Swellers’. Nonetheless, Dr Sweller’s report did meet the description in s 23(3)(b) and formed part of the supporting documentation that I am required to consider.

15. [111]

    Once again, the defendant did not consent to participate in any assessment by Dr Sweller. Accordingly, her opinions were based solely on the material in the documentary brief provided to her. Dr Sweller noted the defendant’s background and circumstances, in particular his rigid belief system and interest in Islam which provided him with concrete, black-and-white rules, predictability, a sense of purpose and belonging with the in-group as well as religious and moral superiority and/or obligation. She was of the opinion that this and the fact that he appeared to be particularly drawn to the online context may have been due to his social difficulties as a function of his Autism Spectrum Disorder.

16. [112]

    Dr Sweller also noted limitations on the use of tools such as VERA – 2R which she noted had been identified as having “weak theoretical support” and to “lack a strong theoretical and empirical foundation”. In her view TRAP-18 had been the subject of more peer-reviewed research and there was encouraging empirical evidence for it but it was noted that the empirical research had mostly been conducted by the author of the tool and there was limited evidence to support the relevance of the indicators for Australian samples. In the context of considering VERA – 2R, Dr Sweller observed:

17. [113]

    Like Ms Kocak, Dr Sweller noted the fact that some of the defendant’s comments could be seen as “venting” rather than an indication of an intention to engage in terrorist offending. Dr Sweller said:

18. [114]

    Dr Sweller noted that in contrast with the needs which Islam meets for the defendant, he likely experiences anxiety whilst on the ESO due to “the inconsistent flexibility of the conditions and rules” and in this way his ASD traits likely exacerbate the challenges implicit in an ESO. Further, in her opinion, it was of relevance that historically, the defendant’s use of violence had been reactive, as opposed to instrumental, and his challenges with emotional regulation appeared to be related to his ASD. When his ASD needs are met, it was her opinion that he has increased capacity to regulate his emotions.

19. [115]

    Dr Sweller was of the view that there were no warning behaviours that might suggest the defendant was progressing on a pathway to engaging in terrorism and while on the ESO he appears to have worked collaboratively with the services available to him. It was noted that while he has experienced emotional vulnerability that could have led to his perpetration of terrorism related violence, he has not done so. In this context, it was said to be important to note the difference between beliefs and behaviour.

20. [116]

    In Dr Sweller’s opinion the applicant had demonstrated progress in relation to his insight into his needs and vulnerabilities, had commenced making incremental behavioural changes and, while he maintained his religious beliefs, his support for the use of violence was conditional and he did not present with intent to engage in violence to further a political, religious or ideological cause.

21. [117]

    In relation to the risk posed by the defendant, Dr Sweller was of the view that the primary risk related to his use of ordinary criminal violence as opposed to terrorism -related violence noting that his dis-regulated expressions of attitudes and beliefs appeared to be “venting” as opposed to expressing his intention to act. In her opinion, this area of risk and need appeared to be within the scope of emotionally reactive violence as opposed to intentional instrumental violence with the aim of furthering an ideological cause.

22. [118]

    A second category of potential risk scenarios related to the defendant engaging in preaching, which could lead to inciting others to act. Dr Sweller was of the opinion that while this category was more likely to eventuate than directly engaging in a serious terrorism offence, it did not appear that the defendant had the intent to incite others to engage in terrorism related offending. Rather, in her view, his behaviour might be interpreted as inciting others, due to the intensity of the emotional expression of his grievances towards Western democracy. Finally, it was observed that if the defendant’s ASD needs are more consistently met, he will have greater capacity to engage in employment, which may assist with his sense of self, and gaining a sense of meaning and purpose.

23. [119]

    In relation to the first ESO, Dr Sweller observed that there was no evidence to suggest that the defendant was vulnerable to actively engaging in terrorism activity and during his ESO he has been motivated to engage with CVE intervention services. In addition, it was said that even at times of heightened stress due to perceived injustice while on the ESO when the defendant has expressed his rigid ideological beliefs in an emotionally driven manner, there was no evidence to suggest that he engaged in behaviour that reflected a progression on a pathway to terrorism. Rather, after expressing his emotional response, it was said that he tended to calm down and engage appropriately with those in authority.

24. [120]

    Dr Sweller was of the opinion that if the defendant were to be subject to a further ESO, it could lead to negative outcomes including: increased hostility to those in authority, reinforcement and escalation of his paranoid thoughts and sense of grievance/injustice/persecution; difficulty for him to further develop his sense of self and identity; creating further anxiety around managing the ESO and conditions; further rigidity in his attitudes and beliefs; and ongoing feelings of lack of control over his life. On the other hand, Dr Sweller recognised that a further ESO could lead to positive outcomes such as: continued access to professional support; assistance with navigating employment services and developing skills to manage employment; support in managing family relations; and monitoring of associates and potential assistance for developing prosocial peer networks.

25. [121]

    In relation to potential positive outcomes, it was noted, however, that these positive factors were not directly related to risk management for serious terrorism activity. Rather it was said they were related to the defendant’s ongoing vulnerabilities with respect to general criminality, and antisocial lifestyle, and his ASD traits. Dr Sweller continued:

26. [122]

    As to quantitative risk assessments, Dr Sweller stated:

27. [123]

    Ms Fewster and Mr Banton’s report is entitled “Reintegration Management Report” and is said to detail the extent to which the defendant can reasonably and practically be managed in the community by Corrective Services NSW. It does not purport to provide an assessment of the risk posed by the defendant if he were not the subject of an ESO in the community, although the risk assessments carried out by others are referred to and relied upon. Based on those risk assessments, the defendant’s behaviour in custody and his response to Community Corrections supervision, the writers of the report provide a reintegration management plan with recommended conditions to support his reintegration, if an ESO is imposed.

28. [124]

    For the purposes of the preliminary hearing and if the court determined that an ISO was appropriate, the defendant’s position in relation to the conditions that should be imposed under an ISO was that the only condition which was opposed was the condition which required the defendant to provide a schedule of movements. The opinion expressed in Ms Fewster and Mr Banton’s report is that a weekly schedule of movements is necessary “to assist [the defendant’s] reintegration into the community and to enhance community safety”. This is said to be because it allows and enforcement officer to undertake a risk appraisal of the defendant’s proposed locations and activities in advance, to prevent him from entering situations that may exacerbate risk factors. It is also said to be a tool that promotes discussion around engaging in prosocial activities and promotes reintegration by providing structure and routine focused on prosocial activities.

29. [125]

    Detective Senior Constable Wang’s report notes that the defendant has been generally compliant with the conditions imposed upon him by the first ESO, other than the incident which took place in July 2023 at the defendant’s workplace. Furthermore, like Ms Fewster and Mr Banton’s report, DSC Wang’s report is primarily concerned with the conditions which might be imposed as part of an ISO or ESO. For the reasons already given, it is only necessary to focus upon the scheduling condition.

30. [126]

    In his report, the Detective Senior Constable states that he is of the view that if the defendant is deemed to pose an unacceptable risk of committing a serious terrorism offence, a clearly defined schedule of movements is required to ensure the safety and protection of the community. In this regard it is noted that, in the absence of a schedule of movements, those responsible for enforcement of the ISO or ESO will have no knowledge of where and when the defendant is going, the routes he will take, who the defendant is with or the modes of transport to be taken. Consequently, there will be no opportunity to assess the risk of any of the defendant’s movements. In addition, it is said that without the knowledge and approval of a schedule of movements, it becomes more difficult for the HRTOU enforcement officers to encourage rehabilitation and minimise the risk of committing a serious terrorism offence.

31. [127]

    The other matters under s 25(3) of the THRO Act which are relevant have been referred to above in this judgment and have been taken into account. In particular, Dr Shanahan’s reports provided essential information concerning the nature, extent and significance of the defendant’s beliefs, conduct and interests. In addition, in the case of material relating to the period before the making of the first ESO, this was also taken into account by N Adams J and I adopt her Honour’s analysis and conclusions in that regard.

Assessment of risk posed by the defendant

1. [128]

   In considering whether, on the assumption that the matters alleged in the “supporting documentation” are proved, it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order, I have taken into account all of the material which amounts to “matters alleged” in the relevant documentation, including in particular but not exclusively what is referred to or summarised above.

2. [129]

   The evidence of Dr Shanahan concerning the significance from a terrorism perspective of the defendant’s conduct, words, beliefs and interests provided, in my view, particularly insightful “matters alleged” concerning the risk posed by the defendant. The present case presents, however, a significant difficulty since the risk assessments and conclusions expressed by Ms Kocak and by Dr Sweller are, to a certain extent, inconsistent, notwithstanding that they are based largely on the same underlying matters alleged in the supporting material. In substance and at a high level of generality, Ms Kocak appears to be of the opinion that based on the matters alleged in the supporting documentation the defendant poses a moderate to high or moderate risk of engaging in activities which might amount to the serious terrorism offences which have been referred to in in [108] above. On a similar level of generality and in substance, Dr Sweller appears to be of the view based on the same material that the only significant risk posed by the defendant falls within the scope of emotionally reactive violence as opposed to intentional instrumental violence with the aim of furthering an ideological cause by means of a serious terrorism offence.

3. [130]

   It is well established that the Court, in undertaking the exercise required for the purpose of ss 24(5) and 27(d), is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is the Court’s role to attempt to predict what the ultimate finding as to the risk posed by the defendant might be at any final hearing.

4. [131]

   In the present case, as was appropriate on the hearing of an application for interim relief under the THRO Act, neither Ms Kocak nor Dr Sweller nor any other witness was cross-examined. Thus, there was no opportunity for either party to expose or challenge the bases for or contents of their opinions and the robustness of their risk assessments and other opinions. This leaves the Court in a difficult position if it attempts to discern which opinions should be accepted or rejected.

5. [132]

   Furthermore, there is a fundamental difficulty with the reports and opinions of both Ms Kocak and Dr Sweller. Neither of them had the benefit of an interview with the defendant, as a result of the defendant’s refusal to make himself available for this purpose. If examination orders are made under s 24(5), the psychiatrists or psychologists who are to examine and provide reports will have the benefit of interviewing the defendant and the Court determining the application for final relief will be properly, or at least better, informed than at present.

6. [133]

   Thus, while there might be reasons why Ms Kocak’s opinions as to the risk posed by the defendant and the scenarios she identified should not be accepted, it does not appear to me that I should reject her opinions as to nature and extent of the risk posed by the defendant for at least three reasons. First, Ms Kocak’s opinions as to the risk posed by the defendant are matters alleged in the supporting documentation which are to be assumed to be proved for the purposes of determining whether the examination orders are to made and whether an ISO is to be imposed.

7. [134]

   Secondly, her evidence in this regard has not been the subject of cross-examination, given the nature of these proceedings for interim relief and nor has the evidence of Dr Sweller. In those circumstances, it is not possible to make a properly informed assessment of Ms Kocak’s opinions and whether Dr Sweller’s evidence substantially undermines the opinions expressed by Ms Kocak.

8. [135]

   Thirdly, Dr Sweller’s relevant opinions depend to a significant extent on the absence of evidence of intention on the defendant’s part to engage in serious terrorism related offending. It is important to bear in mind that the absence of evidence of intention is not the same as evidence of absence of intention. A better informed opinion as to whether the defendant does or does not have any intention actually to engage in serious terrorism offending, despite his threats and outbursts from time to time, may well be possible if he is examined as a result of an order under s 24(5) but it is not reasonably possible on the material presently available.

9. [136]

   While the question is finely balanced given the inconsistent nature of some of the matters alleged in the supporting documentation, based on the matters alleged as a whole but in particular Dr Shanahan’s evidence as to the significance of the material accessed by the defendant and his conduct, words and views and Ms Kocak’s opinions as to risk, on the assumption that these matters are proved, I find that it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order. Accordingly, albeit it with some hesitation, I accept that the making of an ESO would be justified.

10. [137]

    For these reasons, the requirement in s 24(5) of the THRO has been met and I am required to make orders for the examination of the defendant and the provision of reports under that subsection.

Should an ISO be made?

1. [138]

   Similarly, the requirements in s 27(a) and (b) have also been met and consequently the Court’s power to order an ISO is engaged. As noted above, the Court has a discretion whether to make such an order.

2. [139]

   On behalf of the offender, it was submitted that the discretion should be exercised against the making of an ISO given the lack of clarity on the evidence of the risk posed by the defendant in light of various factors including: the apparent inconsistencies in the opinions of Ms Kocak and Dr Sweller and the lack of clarity as to the nature and extent of the risk posed by the defendant; the limitations on the usefulness or reliability of the risk assessment tools, especially VERA-2R; the defendant’s positive engagement with supervision under the first ESO and his increased compliance, expressed disillusionment with violence and an emergent curiosity about understanding his neurodivergence; the potential negative consequences for the defendant that might flow from imposing a further ISO given his autism and other mental health issues; and, the fact that the defendant was unlikely to have the ability to plan or implement a serious terrorism offence as opposed to engaging in reactive violent offending when emotionally vulnerable.

3. [140]

   As against those matters, the potential seriousness of any consequences that might result from the defendant committing a serious terrorism offence, his past conduct, threats, interests and words which on Dr Shanahan’s evidence were clearly influenced by ideologies and organisations promoting terrorism, his ongoing commitment to religious approaches which support or are consistent with terrorism or ideologically motivated violence, and the uncertainty as to whether he does, or is likely to, have an intention of actually engaging in serious terrorism offending, are significant factors weighing in favour of imposing an ISO. Furthermore, an ISO would only be for a relatively short time, compared to an ESO.

4. [141]

   I also take into account that it is well established that on an interim application such as this, whether under the THRO Act or cognate legislate, it is appropriate to have regard to the objects of the legislation and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [64] (Wright J); State of New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191 at [25] (McNaughton J). The primary object of the THRO Act involves ensuring the safety and protection of the community, while a secondary objective is to promote the rehabilitation of the defendant. Risk avoidance weighs significantly in favour of making the ISO, especially as the ISO is of relatively limited duration. If the risk avoidance approach is adopted, both the safety and protection of the community and the rehabilitation of the defendant are, in my view, better served by imposing an ISO than permitting the defendant to be in the community unsupervised.

5. [142]

   Finally, the potentially negative impact of an ISO on the defendant to which Dr Sweller referred can, in my view, be mitigated to a certain extent by excluding from the conditions to be imposed as part of the ISO a condition requiring the provision of a schedule of movements.

6. [143]

   For these reasons, I am of the view that an ISO should be made.

Conditions of the ISO

1. [144]

   As noted above, the defendant submitted that if an ISO were to be imposed the only condition which was opposed was the condition requiring the provision of a schedule of movements. I accept that a scheduling condition should not be imposed in the ISO in the present case. In that regard, Ms Kocak’s opinion, at par 132 of her report, supported this approach. In that paragraph she said:

2. [145]

   In addition, the potential positive outcomes from the defendant being subject to supervision identified by Dr Sweller in her report at par 150 do not depend on his being required to provide a schedule of movements. Indeed such a requirement may give rise to the negative outcomes, identified by Dr Sweller at par 149 of her report, including increased hostility to those in authority, escalation of paranoid thoughts and a sense of grievance, injustice and persecution as well as anxiety and a feeling of lack of control. While the opinions of Ms Fewster and Detective Senior Constable Wang on the benefits of scheduling should be accepted as generally correct, they do not in my view take into account the considerations specific to the defendant referred to by Ms Kocak and Dr Sweller. In those circumstances, I prefer the opinions of the two psychologists in this regard.

3. [146]

   I am confirmed in my view by the evidence of the defendant’s conscientious compliance in the past with what he perceived to be the requirements of scheduling including telephoning his EO to seek permission to take his bins out in order for them to be collected and the EO dispensing with any such requirement.

4. [147]

   Finally, not imposing the condition requiring the provision of a schedule of movements provides the defendant with an opportunity during the ISO to demonstrate his ability to comply with a less restrictive form of supervision which may inform any subsequent determination in relation to whether an ESO should be made or any conditions that might be imposed.

5. [148]

   Accordingly, I propose to order for the purposes of s 29(1) and (1A) of the THRO Act that the defendant is to comply with the conditions as set out in Schedule A to the summons filed on 16 May 2025 for the duration of the ISO with the words “(including in respect of a schedule of movements)” in condition 1 deleted, to the intent that the reasonable directions referred to in condition 1 would not include a direction in respect of a providing a schedule of movements. The conditions as so amended will be a schedule to the orders.

Orders

1. [149]

   For these reasons, the orders of the Court are:

   1. (1)

      Under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW):

   2. (2)

      Under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is subject to an Interim Supervision Order (ISO) commencing from the expiration of the defendant’s current Extended Supervision Order on 15 August 2025 for a period of 28 days.

   3. (3)

      Under s 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is to comply with the conditions set out in the Schedule to these orders.

   4. (4)

      Access to the Court’s file in this proceeding may be permitted to a non-party only with the leave of a judge of the Court and after prior notice to the parties so as to allow them an opportunity to be heard prior to access being granted.