State of New South Wales v Richardson (Preliminary) (No 2)

1. [1]

   By summons filed on 15 June 2023, the State of New South Wales (“the State”) by way of final relief seeks an extended supervision order (“ESO”) for a period of 2 years against the defendant (“Mr Richardson”) under the provisions of ss 20, 25 and 26 of the Terrorism (High Risk Offenders) Act 2007 (NSW) subject to conditions proposed in accordance with the provisions of s 29 of that Act. Unless otherwise specified all references to legislation in this judgment are references to that Act. By way of interim relief, the State seeks an interim supervision order (“ISO”) under s 27 with conditions under s 29 and the appointment by the Court of relevant experts under s 24(5).

2. [2]

   As the sentence of imprisonment for the index offences which Mr Richardson is serving expires on Sunday 9 July 2023, the interim application was urgently listed for the preliminary hearing mandated by s 24(4) on 30 June 2023. As a practical matter, my preliminary decision must be made by Friday 7 July 2023. For this reason, it will be necessary for me to deal with the matter with as much expedition as the dictates of justice will permit. In this regard, I record that I have received voluminous material from both the State and Mr Richardson. I have also had the benefit of extensive written submissions for both parties supplemented by detailed oral submissions. So far as my reasons may omit restating the careful detailed and extensive arguments of counsel, I have closely considered them and intend no disrespect to counsel’s arguments by focusing on my reasons for the decision.

Objections to the commencement of the proceedings

1. [3]

   The formal requirements of an application for an application for an ESO are set in s 23. There is no question that the provisions of subsections (1) and (2) of s 23 are satisfied. Mr Richardson is serving a sentence imposed on him by her Honour Judge O’Rourke SC on 16 September 2020 for the offence of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), of 5 years duration commencing on 10 July 2018 and expiring on 9 July 2023. The non-parole period of 3 years and 4 months expired without Mr Richardson being released to his parole. The offence of armed robbery is a New South Wales indictable offence. Manifestly the application was made by filing the summons during the last 12 months of Mr Richardson’s custody.

2. [4]

   There was an issue about whether s 23(3) was complied with. There is no issue that the supporting documentation filed with the summons addresses each of the matters referred to in s 23(3) so far as they presently can, the reports of court appointed experts not yet being available. However, Mr Richardson disputed that there was included among that documentation a report prepared by a relevantly qualified expert assessing the likelihood of him committing a serious terrorism offence, as required by s 23(3)(b). In this regard, the State relied upon the report of Ms Kara Thomson dated 19 May 2023 and styled Confidential Psychological Risk Assessment report. Ms Thomson is a registered clinical psychologist who occupies the position of senior specialist psychologist with Corrective Services NSW (“CSNSW”) in the countering violent extremism (“CVE”) program. For reasons I expressed when admitting the report at the preliminary hearing, I overruled the objection. I will not repeat those reasons in this judgment.

3. [5]

   Mr Richardson also objected that the State had not complied with its duty of disclosure imposed by s 24(2). By way of example Mr Richardson pointed to Exhibits 1,2 and 3. Exhibit 3 is Ms Thompson’s working papers in relation to the preparation of her report. I am satisfied that if there was relevant non-disclosure about which I am unconvinced there was no substantial non-compliance with the obligation given that Ms Thompsons’s report runs to some 50 pages and is thorough and comprehensive. It sets out all of her findings including her findings in relation to the psychological assessment tools she utilised in more than sufficient detail to explain her reasoning and conclusions. Indeed, from detailed argument that was addressed to me about her report, I am satisfied that the basis of her conclusions was pellucidly clear.

4. [6]

   Exhibit 2 was an extract from a CVE assessment report dated 29 March 2023 authored by Ms Maggie Cruickshank, a forensic psychologist. The report as served had a redacted bullet point at page 18. Exhibit 2 is the unredacted version. The redacted information was definitely material. However, it was also reproduced in unredacted form elsewhere in the supporting documentation. Exhibit 1 is an internal CSNSW document which was partially redacted when disclosed to Mr Richardson. An unredacted version has now been supplied. I am satisfied that there was no material non-disclosure.

The nature of the task at the preliminary hearing

1. [7]

   The nature of the Court’s statutory task at the preliminary hearing is to be found in the provisions of ss 24(5) and 27. The former governs the making of an order appointing relevant experts to report to the Court and directing a defendant to attend those examinations. The latter concerns the Court’s power to make an ISO. I find s 27(a) is satisfied: there is no question that Mr Richardson’s current custody will expire before these proceedings can be finally determined.

2. [8]

   The additional condition common to both ss 24(5) and 27(b) is whether it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. The expression, “if proved” means “if proved at the final hearing”, not the preliminary hearing. The matters required to be proved that would justify the making of an ESO are the statutory conditions set out in s 20 and findings made by reference to the mandatory considerations set out in s 25.

3. [9]

   The large body of jurisprudence that has grown from decisions of this Court and the Court of Appeal concerning the application of the statutory test applicable at the preliminary hearing are summarised in the State’s submissions in chief at page 13ff, [46]. It is sufficient, I think, for present purposes for me to refer to Attorney General for New South Wales v Tillman [2007] NSWSCA 118, even though that case was concerned with Crimes (Serious Sex Offenders) Act 2006 (NSW), more or less in its original form. The purpose of both Acts and the statutory language involved is substantially the same. Adapting the quote for context, Mason P, Santow and Tobias JJA said (at [98]):

4. [10]

   In approaching my task this way, I am not of the view it is necessary for me to apply any particular standard of proof, including the “high degree of probability” standard required for the purpose of the unacceptable risk condition imposed by s 20(d). However, the comparative stringency of that standard needs to be borne in mind when one is determining whether the matters alleged, if proved would justify the making of an ESO. The word, “justify” does not equate in meaning with “necessitate”. Rather it connotes that an ESO would be open if the matters alleged were proved at the final hearing. The test is not predictive. It is a matter for the judge at the final hearing exercising the judicial power engaged at that stage to decide whether to accede to the application or dismiss it. Were I satisfied, however, that an essential element underpinning the power to accede to the application is legally incapable of proof by the matters alleged, the proper exercise of my discretion would require me to refuse the interim application for an ISO. Likewise, there would be no basis to make an order appointing experts. The proceedings would be required to be dismissed.

The matters in dispute

1. [11]

   Under s 50 these proceedings are civil proceedings and subject to express provisions to the contrary are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. This extends to the usual rules of practice and procedure informing the conduct of civil proceedings. For that reason, subject to recognition that this is not private litigation, but involves a matter of public law, the parties are entitled to identify the issues for determination in the usual way. Leaving aside the objections to aspects of the competence of the proceedings, to which I have already referred, the substantive issues remaining are whether the matters alleged in the supporting documentation would, if proved at the final hearing, justify a finding that:

2. [12]

   If satisfaction as to the s 20 conditions would be justified by proof of the matters alleged in the supporting documentation, there remains the question about whether I should exercise the residual discretion allowed by s 27 to refuse an ISO. Section 24(5) appears not to be discretionary.

Background facts

1. [13]

   Mr Richardson was born in 1980 and is now 42 years of age. He is the elder of his parents two children. His upbringing and formative experience were regrettably dysfunctional. His parents separated when he was around two. He was taken into the care of his father and paternal grandparents until he was about six when his father was sent to prison following a siege where hostages were taken. Mr Richardson was not there. He was then cared for by his maternal grandmother for a short time before returning to his mother’s care. His parents both laboured under substance abuse issues during his early years with which his mother continued to struggle when he returned to her care. He was subject to some violence at her hand.

2. [14]

   His mother sought to rehabilitate through religion and entered into what has turned out to be a long marriage with a clergyman when Mr Richardson was around 12. This stabilised things in the home. Mr Richardson did not acquire their faith and his relationship with his mother deteriorated. He re-commenced residing with his father after the latter’s release from prison. His father was using and selling cannabis and not caring for his son. There was seldom food in the house. The father provided no fixed or stable place of residence for a home for Mr Richardson. He told Dr Furst in 2019 that he became homeless either temporarily residing with friends or on the street. His relationship with his mother improved in later years, although he has reported a feeling of disconnection from his family. Mr Richardson is aware that his father died in recent years, but he had no contact with him some years before.

3. [15]

   While he attended High School in the Wollongong area, his unstable home life disrupted his education resulting in a low level of scholastic achievement, partly due to his truancy. He did not attend school beyond Year 7. After leaving school he offended as a juvenile resulting in a control order. While in detention he received some additional schooling. By about the age of 16 he had obtained semi-skilled work in roofing, fencing and retail. However, his own substance use issues disrupted his employment. He has been able to complete TAFE qualifications in first aid, forklift operations and the responsible service of alcohol. His literacy has been assessed as appropriate to his level of scholastic achievement. He has been able to form various domestic relationships during his early adulthood and is the father to two children, a son and a daughter. None of his relationships have lasted. Doubtless, they have been disrupted by his subsequent periods of imprisonment. His children are apparently now aged 15 and 7. He has maintained contact with them as best he can and hopes to continue to build upon that relationship after his release.

4. [16]

   Mr Richardson’s substance abuse commenced at age 13 and he has used various and diverse substances including psychedelics, opioids, anabolic steroids, cannabis, amphetamines, including methamphetamines, and alcohol. When affected by substances he is unable to regulate his own behaviour. When in the community he developed a dependence on methamphetamine which is related to his criminal history.

5. [17]

   It is common ground that Mr Richardson has a long history of mental health issues. Indeed, Mr Kerkyasharian of counsel, who appears with Mr Bhutani for Mr Richardson, submits that this is the most significant issue in the case, which properly understood, explains all of his behaviour. Mr Richardson has a family history of Bipolar Disorder affecting his mother and his maternal grandfather. According to his self-report he may have first experienced relevant symptoms of anxiety from about the age of 7 and psychotic symptoms from 13 years of age, related to his consumption of prohibited drugs.

6. [18]

   While at liberty in 2015 he was admitted as an involuntary patient to St George Hospital (after an arrest) with a drug induced psychosis, which resolved with anti-psychotic medication. Further involuntary admissions are recorded in 2016 involving psychosis. Of these an admission in September 2016 was determined not to be substance induced. He was stabilised with medication but absconded from hospital prior to his discharge. When on parole, he absconded from a residential rehabilitation centre to which he had been admitted to address his substance abuse and mental health issues. While in custody in 2016 and 2017 he evinced deliberate self harming behaviour, expressed suicidal ideation and exhibited paranoid delusions. Self-harm has continued as a feature of his mental condition. On 3 June 2017, he swallowed four razor blades as confirmed by x-ray.

7. [19]

   From 11 June 2017, after the expiration of his sentence, he was hospitalised in Cumberland Hospital for 7 months. Although the original diagnosis was one of Schizophrenia, in December 2017 a panel of psychiatrists arrived at the consensus that Mr Richardson suffered severe anxiety with pseudo-hallucinations, PTSD and anti-social personality traits rather than Schizophrenia.

8. [20]

   He was discharged from Cumberland Hospital to a boarding house in January 2018 but did not remain there. He was reintroduced to custody on 11 July 2018 and was regarded as a Schizophrenia sufferer on the basis of previous records. He has continued his self-harming behaviour mainly involving cutting. Self-harming is worse when he is stressed or anxious. For the purpose of his most recent prosecution, he was assessed by Dr Gerald Chew on 20 July 2020, who provided the primary diagnosis of Borderline Personality Disorder with psychotic symptoms. The differential diagnosis of Schizophrenia was proffered as a possibility. At that time Mr Richardson was compliant with prescribed oral antipsychotic medication.

9. [21]

   During his current custodial sentence Dr Chew’s diagnosis has been accepted as accurate rather than Schizophrenia. The so-called pseudo-psychotic symptoms include command auditory hallucinations to harm himself and others. He also suffered transient persecutory ideation. His condition is thought to fluctuate and is regarded as treatment resistant. He exhibits ongoing oppositional behaviour towards CSNSW staff as an aspect of his condition. He is not subject to an ongoing course of regular treatment but takes antipsychotic medication provided on his request as he feels the need, pro re nata (“PRN”). He has also suffered from general medical conditions including an ongoing cardiac arrhythmia.

10. [22]

    I should add that Dr Richard Furst, who examined Mr Richardson during the prosecution of the index offending, and produced a report on 21 February 2019, thought that the principal diagnosis was chronic and treatment resistant Schizophrenia in conjunction with Substance Use Disorder and a Personality Disorder with antisocial and borderline features. It is notable that Dr Furst had access to and reviewed the records from Cumberland Hospital for the 2017 admission. He was aware of the reassignment of the diagnosis undertaken by the panel of psychiatrists. In Dr Furst’s opinion, “there was no logical clinical basis for such a reclassification, which was likely erroneous” (Exhibit SE-1, p 199). He also comments that his discharge with anti-psychotic medication is “more in keeping with a primary diagnosis of schizophrenia”.

11. [23]

    It is convenient to interpolate that Judge O’Rourke, when sentencing for the index offending, was satisfied that Mr Richardson’s mental health condition was causally connected to the commission of the index offending and “to some significant degree reduced his moral culpability and the significance of general deterrence for sentencing purposes” (Exhibit SE 1, pp 226–7). However, she considered Mr Richardson’s prospects of rehabilitation to be “poor”. Her Honour also considered, “there exists a dire need for this offender to be supervised once he is released back into the community, not only for his own safety, but for the community’s” (Exhibit SE 1, p 228). It is convenient to say now, that did not occur because the applicant did not apply for release during the generous parole period her Honour allowed and in the circumstances the State Parole Authority did not decide to release him to parole (see below).

12. [24]

    Mr Richardson’s record of offending commenced as a juvenile at the age of 14. There was a spate of offending between 22 November 1994 and 22 May 1995 involving cultivating a prohibited plant (cannabis) and 10 charges of break, enter and steal in its various forms as well as stealing simpliciter. The evidence indicates that this serial offending occurred while he was living in an unstable environment with his father who left Mr Richardson to his own devices without providing for his ordinary needs. After his offending, he was taken into the home of his mother and stepfather again. Many of the offences were committed while Mr Richardson was on bail for the earlier of the offences having been initially bailed to reside with his father. After revocation, bail was reinstated on the basis he move in with his mother and stepfather. Notwithstanding a favourable Juvenile Justice report, Mr Richardson was sentenced to a control order of 9 months duration with an additional term of 9 months and a supervised probation order of 2 years. (Exhibit SE-1, p 234). Later, recommended early release was refused by the Children’s Court.

13. [25]

    There was a further break and enter on 1 April 2003 when Mr Richardson was aged 20, for which he received a community service order, other offending was also involved. Again, there was a spate of property offending between late 2006 and February 2007. This offending involved car stealing and other property offending. He appears to have absconded to Queensland where he was apprehended by police on 23 May 2007 while driving one of the stolen cars the subject of the NSW charges. He was extradited to New South Wales and sentenced on 28 May 2007 to a term of imprisonment of 2 years duration with a non-parole period of 12 months. There was a concurrent sentence of 6 months for one of the car stealing offences and another concurrent sentence of 18 months on a larceny charge.

14. [26]

    On 25 May 2009, he was charged with four counts of armed robbery occurring on 9 May 2009, 14 May 2009, 18 May 2009 and 23 May 2009. In respect of two of the offences which were dealt with together, there was the aggravating circumstance of being in company. Moreover, three of the four offences were committed during the non-parole period for his previous offending, to which he had been released on 22 May 2008. On the occasion of each of the four offences he brandished a sawn-off, double-barrelled shotgun. In respect of two of the offences, he loaded the shotgun in the presence of the victim(s), doubtless to significantly heighten its intimidatory effect in support of the demands for money, as his Honour Judge Conlon SC found (Exhibit SE-1, p 392). The premises robbed on these two occasions were a ladies’ hair salon and a small mixed business.

15. [27]

    Mr Richardson received a significant discount for his early plea and an undertaking to give evidence in the future against his co-accused on two of the offences. The motivation for the offending was feeding his drug addiction. He was sentenced to three partially accumulated terms of imprisonment producing a head sentence of 8 years duration with a non-parole period of 5 years. The earliest date on which he was eligible for parole was 24 May 2014. The last head sentence did not expire until 24 May 2017.

16. [28]

    He was released to his parole at the earliest available date of 24 May 2014, however, he offended again in somewhat bizarre circumstances on 2 July 2015 when intoxicated by methamphetamine. This was the offending following which police took him to St George Hospital because of his mental health. He damaged a motor car parked in a driveway, entered the residence, frightened the occupants whom he did not know, locked himself in the bathroom and damaged the fixtures within with a piper he tore from the plumbing. He refused police demands that he leave the bathroom and it was apparently necessary for tactical police to deploy three tasers and one “flashbang” to enter the bathroom and effect the arrest. Upon the preferment of these charges his parole was revoked, and he recommenced serving the additional term imposed by Judge Conlon, which did not expire until May 2017.

17. [29]

    For the new offending he was dealt with promptly in the Sutherland Local Court on two counts of destroy or damage property and sentenced to a total effective sentence of 18 months duration expiring in January 2017 with a non-parole period of 13 months and 15 days.

18. [30]

    He was again released to parole at the expiration of the non-parole period for the July 2015 sentence on 20 August 2016. It was again revoked when he absented himself from Adele House Rehabilitation Facility, Coffs Harbour, a matter I have previously mentioned in passing, without permission and in breach of the condition of his parole that he report as and when directed by his parole officer. The revocation occurred on 21 September 2016 and a warrant for his arrest to be brought back into custody was issued (30 September 2016). He was taken back into custody to serve the balance of his parole on 15 October 2016. Following adjustment taking account of his liberty, the sentence expired on 11 June 2017 and as I have said he then was admitted to Cumberland Hospital due to his mental health issues.

19. [31]

    The index offending occurred on 5 July 2018 and consists of the offence of robbery armed with an offensive weapon. The offensive weapon used on this occasion is described as a black military bladed knife. He was arrested on 10 July 2018 and refused bail. He pleaded not guilty and stood trial before Judge O’Rourke and a jury who returned a verdict of guilty on 24 July 2020. As I have said, Judge O’Rourke sentenced him on 8 September 2022. The facts were he robbed a bottle shop in Rozelle during the afternoon of 5 July 2018. He took a bottle of bourbon from the shelf and presented it to the cashier. When asked for payment he produced his knife, pointed it at the cashier and demanded “all the notes” (Exhibit SE-1, p 220). This demand was repeated. About $300 was handed over which Mr Richardson took together with the bottle of whiskey. After Mr Richardson’s departure, the cashier activated the duress alarm for police. Mr Richardson was arrested on 10 July 2018 in a nearby boarding house. The black knife was seized during execution of a search warrant. Judge O’Rourke assessed the objective seriousness of this example of armed robbery as “just below midrange” (Exhibit SE-1, p 222). As I have remarked already, the head sentence was one of 5 years, expiring on 9 July 2019 with a non-parole of 3 years and 4 months. As I have also said already, although eligible for parole on 9 November 2021, Mr Richardson decided not to apply for parole. The following is recorded (Exhibit SE-1, p 526):

Central factual issue

1. [32]

   The central factual issue in the case is the significance of a series of statements made by Mr Richardson between 20 December 2021 and 26 April 2023 largely consisting of statements of intent in relation to his conduct after his release from prison at the expiration of his sentence. Other matters are also referred to in these statements, which are also of some significance to the extent to which they bolster the potential significance of the statements of intent. In detailing these “matters alleged in the supporting documentation”, I have borne in mind, notwithstanding Mr Richardson’s long criminal record and custodial history he has never been convicted of or sentenced for an offence having an element of the infliction of physical violence of any degree upon another person. Having said that, the psychological trauma inflicted upon victims of robbery armed with a loaded, sawn-off shotgun or a large knife should not be understated or underestimated.

2. [33]

   The matters which I will now turn are recorded in the records of CSNSW either in the case notes of the offender integrated management system (“OIMS”), custodial intelligence reports, psychologists reports or recordings of gaol phone calls. To garner the relevant flavour, it is necessary to set them out fully as follows:

3. [34]

   Maggie Cruickshank is a forensic psychologist working with the PRAXIS program for the CVE unit with CSNSW. She had spoken to Mr Richardson on 13 January 2023. She prepared a report dated 29 March 2023 (Exhibit SE-1, p 587ff). She had interviewed Mr Richardson on 8 occasions for the purpose of her report. She summarised the various case notes and other documents, the subject of my aforegoing summary (Exhibit SE-1, pp 603–604). He told Ms Cruickshank he was resentful of his long-time placement in the acute care management unit, which he regarded as mistreatment. He said his life prior to this custodial sentence no longer held any meaning or importance to him. He also made the following complaints about what he regarded as racism in CSNSW against “the majority group”:

4. [35]

   He told Ms Cruickshank he had “formulated a plan to harm others”. He said his plan was to return to Queensland when his sentence expired. He continued:

The risk assessment report

1. [36]

   I have already made mention of the risk management report of Kara Thompson, clinical psychologist dated 19 May 2023. I repeat that report was admitted over the strenuous objection of Mr Kerkyasharian of counsel, for the reasons I gave separately. Mr Richardson was not compelled to submit to an interview with Ms Thompson for the purpose of the preparation of the report and he declined to do so. No adverse inference should be drawn from this either now or at the final hearing. This means, of course, that Ms Thompson’s task was restricted to what might be referred to as a desk-top review of the extensive file available to her.

2. [37]

   Ms Thompson started from the premise, “it is not scientifically possible to accurately predict whether… an individual offender will or will not re-offend”. She said the best that can be offered is an estimate that is anchored to empirical literature specifying features associated with “risk and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment” (my emphasis) (Exhibit SE-1, p 40 [84]–[85]).

3. [38]

   Ms Thomson also recognised that the risk assessment process is necessarily multi-faceted. She regarded the comparative frequency of violent extremism or politically motivated violence as being low (Exhibit SE-1, p. 41; [92]) and said:

4. [39]

   Ms Thompson’s reliance upon VERA-2R was controversial because of her reliance upon what has been referred to as the “Corner Report” (Dr E Corner and Dr H Taylor, Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments (ANU Centre for Social Research and Methods, 2022)), which calls into question its validity as an accurate risk assessment tool. I was taken to salient passages in the Corner Report by Mr Kerkyasharian as the basis of his argument that Ms Thompson’s report was not capable of qualifying as evidence which, if accepted, could justify the making of an ESO.

5. [40]

   I observe in passing that among the materials relied upon by Mr Richardson for the purpose of the preliminary hearing was another report by Dr Timothy Cubitt and Dr Heathers Wolbers (Review of violent extremism risk assessment tools in Division 104 control orders and Division 105A post sentence orders (Australian Institute of Criminology, 2022) (“the Cubitt Report”). The references are to Federal anti-terrorism legislation: Criminal Code 1995 (Cth). The authors noted that questions had been raised about the validity of VERA-2R. In contradistinction to the conclusions of the Corner Report, the Cubitt Report concludes that “the VERA-2R remains the most suitable risk assessment tool for use”. The authors did, however, recommend it be subjected to further scrutiny and, in particular, validation (Exhibit DG-1, p 410). In my view, however, this is not an issue for me to resolve at this stage having regard to the nature of the test prescribed by s 27(b). While the Corner and Cubitt Reports are serious scientific documents, their introduction into evidence rises no higher than defining a serious conflict between experts. A dispute of this nature can only be resolved at the final hearing. I reiterate the question for me is whether the matters alleged in the supporting documentation, would, if proved, justify an ESO. However, such matter may go to the residual discretion that the use of the word may in the chapeau to s 27 confers.

6. [41]

   For reasons she fully explains in her comprehensive and thorough report, Ms Thompson has assessed Mr Richardson’s risk of violent reoffending as being High. His risk of engaging in an act of violent extremism, politically motivated violence and/terrorism activity has also been assessed as being within the High range. While Mr Kerkyasharian objected to the reception of the report in evidence because it did not directly address the language of s 23, for reasons I gave orally, I am of the view that it does address the question of the likelihood of Mr Richardson engaging in a serious terrorism offence. It is not necessary that an expert report be couched in the language of the Act. To so require, would be a triumph of form over substance.

Whether Mr Richardson is a convicted New South Wales terrorism activity offender

1. [42]

   I turn now to the central issues for determination. The State contends and Mr Richardson disputes that he is a convicted New South Wales terrorism activity offender. There is no question that he is an eligible offender. At the final hearing, this matter will be governed by the provisions of s 10 as informed by s 11 to the extent relevant. I remind myself that the question for me is whether the matters alleged in the supporting documentation, if proved, at the final hearing, would justify a finding that Mr Richardson is a convicted New South Wales terrorism activity offender. The relevant provisions of s 10 are as follows:

2. [43]

   So far as may be relevant for the circumstances of this case, the provisions of s 11 are:

3. [44]

   It is also convenient to include s 100.1 Criminal Code (Cth), defining a terrorist act, which applies for the purpose of s 10:

4. [45]

   I should add that it is well established that the collocation, “any terrorist act or violent extremism” where it appears in s 10, is a composite expression. The addition of the phrase “violent extremism” broadens the type of conduct that can satisfy the definition in s 10: Hardy v State of New South Wales [2021] NSWCA 338 at [29]–[30].

5. [46]

   It should also be borne in mind that the matters alleged in the supporting documentation do not lay any foundation whatsoever that would support a finding at the final hearing that Mr Richardson has had any association or other affiliation with any person, group or organisation which has advocated support for a terrorist act or violent extremism. The question is whether he is making or has previously made any statement … advocating support for any terrorist act or violent extremism. In that regard, the extension of the concept contained within s 10(1A)(a)(iii) is relevant. Section 10(1A)(b) is not.

6. [47]

   Reading the provisions of the section together, advocating support for any terrorist act or violent extremism extends to making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. For this purpose it is not necessary that there are matters alleged which would justify a finding that Mr Richardson is a member of any group or organisation, just that threats of violence made by him are of a kind made by that group or organisation. Alternatively, of course, any threat of violence needs to be of a kind that is promoted by an ideology that supports terrorist acts or violent extremism.

7. [48]

   There was some argument before me that “advocating” required declaration of a point of view or attempt at persuasion. While this might be an ordinary meaning of advocating that expression is not so confined in s 10. This is made clear by the opening words of s 10(1A)(a)(iii), making a threat. I would not regard it as necessary that the threat must be made to the intended object of the violence. Indeed, given the whole context of the provision, a public declaration or articulation of the threat, including to persons in authority, is more in keeping with the definition of terrorist act in the Criminal Code. There was much debate about the meaning of “ideology”. Mr Kerkyasharian relied upon the Macquarie Dictionary definition and in particular “the body of doctrine … of a large group”, “the systematic study of ideas” and “theorising of a visionary or unpractical nature”. He questioned whether thoughts, ideas or values personal to oneself qualified as an ideology within the meaning of the Act.

8. [49]

   Ms Callan SC with Ms Zheng for the State, argued that an “ideology” could be idiosyncratic to an individual. Senior Counsel relied upon the following passage in Hardy v State of New South Wales [2021] NSWCA 338 at ([82], White JA, McCallum JA agreeing):

9. [50]

   The matters alleged in the supporting documentation which I have summarised above, would if proved at the final hearing support a similar conclusion. If accepted, Mr Richardson had threatened extreme violence. I am also of the view that, if accepted, the threat of violence was associated with extremist views. Quite clearly, taken in context, especially the account recorded by Ms Cruickshank, the whole of his statements evinced extreme views of a kind associated with white supremacist or ultranationalist beliefs. If necessary, an ideological content may be supported by reference to the use of the old colonial flag as a symbol of his intent. It would be open to infer that it was a symbol associated with European, specifically Anglo-Celtic, settlement of Australia and the displacement and dispossession of indigenous Australians. These things are not “a given”, but they will be open for consideration at a final hearing, if the matters alleged are proved and preferred to any countervailing evidence that may be led.

10. [51]

    I am satisfied that the matters alleged in the supporting documentation could justify a finding that Mr Richardson is a convicted New South Wales terrorism activity offender.

11. [52]

    A serious terrorism offence is defined in s 4 as meaning “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”. I bear in mind that it is not necessary for the Court to specify a precise “serious terrorism offence” as part of the necessary risk assessment called for by s 20(d): State of New South Wales v Cheema [2020] NSWSC 876 at [189] (Johnson J); State of New South Wales v Alam [2020] NSWSC 295 at [129] (Wilson J). However, among the offences which qualify are engaging in a terrorist act contrary to s 101.1 and doing acts in preparation for or planning a terrorist act contrary to s 101.6, both of the Criminal Code.

12. [53]

    I also bear firmly in mind that to be “satisfied” after the final hearing, the Court must be actually persuaded that Mr Richardson poses an unacceptable risk if not kept under supervision to a high degree of probability. This will affect the nature of the proofs necessary to discharge that standard of proof at the final hearing. I also bear in mind the “double intent” required to satisfy the definition of terrorist act in s 101 Criminal Code. That is to say, the action or threat of action must be made with the intention both of advancing a political, religious or ideological cause; and of coercing or influencing by intimidation a government or intimidating the public or a section of the public. I also acknowledge that this will be a contested issue at the final hearing. Questions will be raised by and on behalf of Mr Richardson to counter or contradict the matters alleged in the supporting documentation. However, that is not to the point for present purposes.

13. [54]

    I am satisfied that the matters alleged, if proved would justify a finding made by application of the high statutory standard of proof that Mr Richardson poses a threat of committing a serious terrorism offence if not kept under supervision. Quite clearly, a plan to murder 15 Aboriginal middle-aged men or elders across three States and Territories and to publicise the results and his explanation to media, would constitute a serious terrorism offence. It is a series of acts causing death for the purpose of s 101.1(2); which would have been done with the intention of advancing Mr Richardson’s expressed white-supremist-like ideology for the purpose of publicising the disadvantage suffered by white middle-aged men and the privilege of Aboriginal and other men of non-European ethnicity, he has spoken about while in custody. It would be open to find that this was done for the purpose of influencing government policy. It could not fairly be gainsaid that it was done for the purpose of intimidating at least a section of the public, namely, middle-aged Aboriginal males.

14. [55]

    Moreover, given that his criminal history, and his statements in custody, demonstrate he has the ability to access firearms or large knives, there is an unacceptable risk that he could perform acts in preparation for a terrorist act while at large in the community unsupervised.

Should an interim order be made

1. [56]

   Mr Kerkyasharian submits that even if I am satisfied as to the s 20 conditions, I should exercise the s 27 discretion to refuse the orders sought. To some extent answering this question depends upon reference to the mandatory considerations imposed for the purpose of making an ESO under s 25. The paramount consideration is the safety of the community. Other mandatory matters are listed in s 25(3).

2. [57]

   Obviously, the s 25(3)(a) reports which refer to the opinions of the experts appointed under s 24(5) are not available. Otherwise, I have referred specifically to the available material in my above summary of the evidence. I have referred to the consideration that Mr Richardson was not prepared to participate in Ms Thompson’s assessment. However, he did co-operate with Ms Cruickshank, but her assessment was not for the purpose of risk assessment. So far as it is available, the material in relation to s 25(3)(c) is contained in Ms Thompson’s report I have summarised above.

3. [58]

   I have had regard to the risk management report prepared by an officer of Community Corrections (Exhibit ES-1, p 94ff) and the ESO management report prepared by a police officer of the High Risk Terrorist Offenders Unit, I am satisfied that the contents of those reports, if accepted at the final hearing, would support a finding that Mr Richardson can reasonably and practically be managed in the community. There is no prescribed terrorism intelligence authority report for the purpose of s 25(e).

4. [59]

   Ms Thompson’s report and Ms Cruickshank’s report summarised the treatment or rehabilitation programs he has undertaken in custody. During his various sentences he has participated in a number of programs. He failed to complete the Intensive Drug and Alcohol Treatment Program he commenced in October 2012. He completed a Ngara Negura program focusing on emotional growth in March 2014. His participation was satisfactory. He returned to the program in February 2016 but was discharged for drug use. He completed the EQUIPS Addiction Program in July 2016 and completed 5 sections of the CONNECT Program by July 2021 again focusing on emotional resilience. He was regarded as not suitable in 2010 for the Violent Offenders Treatment Program because his previous offending was not assessed as serious violent convictions. He has made comments from time to time that he is able to give the appearance of complying to create the right impression.

5. [60]

   For the purpose of s 25(3)(g), there is no suggestion that Mr Richardson should be kept in custody under a Continuing Detention Order.

6. [61]

   Mr Kerkyasharian pointed out in his written submission that there were other options for managing Mr Richardson’s risk, such as it may be when he is in the community. He referred to the Mental Health Act 2007 (NSW). There is no suggestion that an application under that legislation is likely to be made before the expiration of his sentence either by Justice Health officials or by police. There is no suggestion that the conditions necessary to support orders under that Act are applicable at this time. Reference was also made to a firearms prohibition order relevant to the risk that he may access firearms. I have been told an order has been made and has been served upon Mr Richardson on 5 July 2023. The police powers in that regard fall far short of supervision. Reliance was placed upon Ms Cruickshank’s report to demonstrate that there were community-based support programs available to persons in Mr Richardson’s position without a supervision order. Reference was also made to the PRAXIS Program which may also be available under an ESO, but only if Mr Richardson consents to participate. I am not aware if it is otherwise available or whether Mr Richardson would consent to participate. Given the knowledge police have of Mr Richardson’s risk, it is also suggested that he may be subject to monitoring or surveillance. These matters, of course, may be relevant to the discretion to refuse an order both now and at the final hearing.

7. [62]

   Whether Mr Richardson will comply with an order (s 25(3)(h)) is problematic. As the evidence I have summarised above notes, he has expressed determined opposition to an ESO. It will obviously make the administration of any order that is made challenging, both for Mr Richardson and for those responsible for supervising him. It also affects the likelihood he would voluntarily undertake such other community-based programs that may be available adversely.

8. [63]

   As I have already pointed out, his history of compliance with the requirements of court ordered conditional liberty has not been good. Serious crimes have been committed while on parole: s 25(3)(i).

9. [64]

   Much emphasis has been put upon the absence of any overt crimes of personal violence in Mr Richardson’s criminal record. The State accepts that this is so. I did observe during argument and Mr Kerkyasharian accepted that the psychological trauma inflicted whilst carrying out a robbery armed with a sawn-off, loaded shot gun cannot be gainsaid. But it does remain that he has not committed any offence, let alone a serious one of personal violence in the past, notwithstanding his otherwise very poor record. It is also the case and perhaps follows from this that he has never committed anything which might be regarded as terrorism offence in the past. And these may be important matters.

10. [65]

    I have had regard to the views of the sentencing courts in relation to his past serious offending. Other than in relation to the poor prospects of rehabilitation, they are not germane to the risk of commission of a terrorism offence. And I have referred to the “ideological” beliefs of Mr Richardson above, which are a factor tending to establish the relevant risk.

11. [66]

    A strong submission was made on Mr Richardson’s behalf that he is mentally ill and institutionalised from his long years in custody. It was put that these matters were strong indicators that he required help or treatment rather than close supervision. There is much to be said for that argument. It is possible that Mr Richardson’s plan is the fantastical manifestation of his disease of the mind which he never intends to act on. But it is more appropriate in my opinion that this issue be determined at the final hearing when the opinion of the court-appointed experts is available. As I have tried to indicate, there remains a doubt about the correct differential diagnosis and the appropriate treatment regime applicable. Presently and for some years, Mr Richardson has been treated as a person beset by a Personality Disorder and medication has been made available only on a PRN basis. Given Dr Furst’s opinion, there is a question in my mind about whether he is being appropriately treated. I also bear in mind that mental illness may be highly relevant to risk.

12. [67]

    Given my findings on the unacceptable risk question, at this preliminary stage I am not of the view that it would be an appropriate exercise of my discretion to refuse to make an ISO under s 27. Obviously, given my findings I am bound to make orders under s 24(5). I am satisfied that I should make an ISO of 28 days duration and the orders under s 24(5).

Conditions

1. [68]

   I turn then to the conditions to which Mr Richardson should be subject under s 29. Learned counsel for Mr Richardson have not made any submissions disputing the appropriateness of the conditions proposed by the State at this stage. I will impose those conditions. I regard them as proportionate to the risk I have assessed at this preliminary stage. That these conditions are imposed now does not mean that Mr Richardson will be precluded from challenging them at the final hearing.

Orders

1. [69]

   For the reasons I have given I make the following orders:

   1. (1)

      Under s 24(5) Terrorism (High Risk Offenders) Act 2017 (NSW) order that:

   2. (2)

      Under s 27 of the said Act, the defendant is subject to an Interim Supervision Order commencing today, 7 July 2023, for a period of 28 days.

   3. (3)

      Under s 29 of the said Act, the defendant is to comply with the conditions set out in Schedule A to the summons filed on 15 June 2023 for the duration of the order.

   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.