State of New South Wales v Benshabir (Interlocutory)

I have before me an urgent application for an interim supervision order sought by the State of New South Wales against the defendant under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). The matter is urgent because the defendant was, or will shortly be, [1] successful today in a severity appeal, the result of which is that the District Court judge hearing the appeal has dealt with, or proposes, to determine the matter by way of a conditional release order for 12 months from today.

By way of background the defendant, at least until today, was in custody serving a sentence of imprisonment for an affray offence committed on 10 February 2024. The defendant was also, until recently, facing a charge for possessing or controlling violent extremist material obtained or accessed using a carriage service. While I am informed that that charge has been withdrawn, the Court has primary evidence of the material that prompted that charge. That material is relied on by the plaintiff in this Court for the purpose of risk assessment.

I accept, for this urgent preliminary inquiry, that inferences are available, the effect of which are that the State's documentation would, if proved, demonstrate that the plaintiff is a “convicted NSW terrorism activity offender” within the meaning of s 10 if, but only if, he meets the definition of "eligible offender." In expressing that view I offer no view of success of that matter at final hearing.

The matter came before Weinstein J for preliminary orders yesterday. His Honour heard argument – full argument so far as that was practicable in the circumstances – on 1 April 2026. On the same day his Honour made the following findings:

Accordingly, his Honour made orders appointing two experts to examine the defendant and prepare reports and directed the defendant to attend those examinations.

I would add that, subject to what I say below, I have reviewed the material and am also satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an extended supervision order. In that regard, the file was provided to me yesterday afternoon as Duty Judge against the possibility that this application came before me today. I have had an opportunity to read the material. In making that assessment about what the matters alleged in the supporting documentation would, if proved, justify, I have taken into account the mandatory considerations in s 25 of the Act, including as the paramount consideration the safety of the community.

The matter came before me on an application for an interim supervision order. As matters stood before Weinstein J, the defendant’s “current custody or supervision” was not scheduled to expire until July 2026. However, there was a distinct possibility that a severity appeal, pending in the District Court, would lead to a substantially shortened period before expiry.

His Honour observed that the threshold requirement for an ISO in s 27(a) of the Act is only engaged if the current custody or supervision "will" expire before the proceedings are determined. It does not, according to the ordinary meaning of the language, accommodate the situation where there is merely a possibility, even a likelihood, of the current custody or supervision expiring. It is not necessary or appropriate for me to weigh in on that debate, save to observe that I do not think that his Honour's view, or the same view reached after considered argument by Hamill J in State of NSW v Farhat [2026] NSWSC 19, is plainly wrong.

The matter has come before me because, as matters transpired, the defendant's severity appeal has been (or is about to be) successful and her Honour Judge David of the District Court either indicated she would deal with, or has dealt with, the matter by way of a conditional release order for a period of 12 months from today.

Her Honour indicated she would not enter those orders until 4:30pm today. The circumstances in which that indication arose warrants some attention. Nobody before me had the benefit of the transcript. After hearing submissions from the Bar Table from counsel both of whom were present in the District Court for at least most of that hearing, I endeavour to summarise the facts in a manner that appears to me to be not seriously in dispute. Should this matter go further it may be that the parties can debate with the benefit of a transcript of the hearing before her Honour.

When the matter was first called before her Honour, counsel for the State was not present in court. Representatives for the State, including counsel, were just outside the courtroom.

The defendant's counsel made it clear to her Honour that the defendant contended that no sentence of imprisonment should ever have been imposed, having regard, among other things, to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant's counsel also said that there was a prospect that persons might seek a stay and that the defendant would contend that the District Court had no power, that the State had no standing to seek a stay and that no stay should be granted in the court's discretion.

The representatives for the State entered the courtroom at some time shortly thereafter. The hearing was adjourned and was resumed shortly before midday. When her Honour came on the Bench, the prosecutor told her Honour about the fact of the proceedings in this Court that had been before Weinstein J yesterday, but did not hand up a copy of the orders that his Honour made.

As Mr James points out, I can understand why the parties might be cautious about putting material before her Honour that would not be relevant to exercise of a sentencing discretion – some of the evidence in this Court would fall into that category. Of course, there is a difference to providing her Honour with the orders (which would not disclose the substance of that evidence) and any of the evidence itself (which would not be relevant).

The prosecutor told her Honour about the fact of these proceedings. The prosecutor said that representatives of the State were in court and either would or might seek a stay of the proceedings. Her Honour said something said like that she had heard what the prosecutor had said, but that was not relevant for her today.

Her Honour heard the appeal and pronounced orders, including orders quashing the sentence of imprisonment and imposing a sentence of a conditional release order for 12 months. That occurred a little after 12:30pm.

As soon as her Honour had pronounced those orders, counsel for the State stood up and gave her Honour a copy of Weinstein J's reasons and drew attention to order 5. His Honour’s orders included:

The State’s counsel then indicated that the State asked her Honour to stay her decision. Defendant's counsel opposed that, raising both the issue of power, including a contention that her Honour was functus officio, and a question of standing. The State’s counsel asked her Honour to exercise her inherent power to permit the State to approach this Court.

Her Honour made no ruling in relation to the stay, but her Honour said that her orders were unlikely to come onto JusticeLink for at least another hour. There was further discussion, the precise detail of which I do not have, but the upshot was that defendant's counsel gave an undertaking, first to the parties and then to the District Court, that they would not frustrate the application to this Court.

Her Honour did not say anything that expressly revoked, re-visited or varied the orders that she had pronounced, but she did say words to the effect or, “I can give you an hour or so”. The State sought more time and her Honour settled on 4:30pm. I infer her Honour indicated that the orders would not be entered until 4:30pm. A notation was added to the orders to the effect that they would not be entered on Justice Link until 4:30pm.

The precise course of events before her Honour looms large because this Court only has power to make an ISO if the defendant is an “eligible offender” and that is only if the offender is serving a sentence of imprisonment.

I observe at the outset that since the District Court has upheld the appeal, it follows that the District Court has held that the appropriate sentence to impose on the defendant is not, and was not, a sentence of imprisonment. I do not see that as decisive of the matter before me, but it highlights why this is not a matter of mere technicality. If her Honour's sentence had been imposed from the start, then the defendant would never have been an eligible offender.

The issues that arise for this court are:

I deal with the third issue first. I would not be persuaded, if this were the only issue, that this deprived the Court of power. I recognise what the defendant has said here about the ordinary meaning of the word "expire", but Parliament has not provided for s 27(a) to operate by reference to when a “sentence expires” (which is an expression about which there is a deal of authority). Instead, Parliament has provided for the operation of s 27(a) by reference to when “custody or supervision” expires. I am not persuaded that Parliament intended the expression of "expire" in respect of custody or supervision to be construed in that narrow sense (ie, confined to a situation where it comes to an end by effluxion of time).

As to the first issue, the ordinary position is that orders are effective when a court pronounces them in open court. The plaintiff drew my attention to r 12 of Pt 53 of the District Court Rules 1973 (NSW) which provides as follows:

I am not persuaded that rule 12 assists the plaintiff. That rule is consistent with the proposition that orders, unless there is some indication to the contrary, are effective as soon as they are pronounced.

The question whether, in the particular circumstances of this case, a different position arises has caused me considerable hesitation. It seems to me that the issue has to be analysed in two steps. The first is whether her Honour's orders were effective upon their pronouncement shortly after 12:30pm today. The second is whether, if they were, anything afterwards occurred which had the effect of withdrawing or postponing the time at which they take effect until 4:30pm or such time as they are entered.

As to the first question, her Honour did receive an indication, first from defendant's counsel and then from the prosecutor, that there were representatives of the State who would or might seek a stay. Nevertheless, in the absence of any words from her Honour to indicate that the orders were not effective immediately, I am unable to conclude that that provided sufficient context to conclude that, although her Honour pronounced the orders in the ordinary manner after hearing the appeal, nevertheless a person in the position of a party would understand that the orders were not intended to take effect until her Honour had dealt with the stay.

Next arises the question whether her Honour withdrew her orders or corrected them under the slip rule. Mr James said that her Honour had no power to withdraw or revisit the sentence. I am not persuaded that that is so. However, on the material before me I do not have evidence that enables me to conclude that her Honour did, in fact, withdraw or correct the order, under the slip rule or otherwise. An implication cannot confidently be drawn from what her Honour said, that her Honour did not regard the orders as taking effect until they were entered. In any event, that would not be sufficient in the absence of orders revisiting, revoking or staying the order she had pronounced.

That being the case, it seems to me the orders of the District Court have taken effect and, as a result, the defendant is not presently an eligible offender. As I have said, I do not reach that conclusion lightly.

I do note that, as I indicate above, I do not regard that outcome as a mere technicality. The upshot of her Honour's decision is that, in substance, the proper sentence for the index offence is not a sentence of imprisonment. Being subject to a sentence of imprisonment has always been, as a matter of substance, a necessary pre-condition for this Act.

I am unable to be satisfied that the defendant is an eligible offender and, accordingly, I am unable to be satisfied that I have the power to make the interim supervision order that is sought.

I dismiss the application for an interim supervision order.