State of New South Wales v Richardson (Final)

1. [1]

   On 15 June 2023 the State filed its summons to commence these proceedings claiming an order pursuant to ss 20, 25(1)(a), 26(6) and 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (referred to hereafter as “the Act”) that the defendant be subject to a two-year extended supervision order and that he comply with 57 conditions set out in a schedule to the summons.

2. [2]

   When the summons was filed the defendant was serving a sentence of 5 years imprisonment for an offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence was committed on 10 July 2018. The defendant was arrested on that date and he was subsequently convicted after trial by jury. His sentence commenced on the date of arrest and was due to expire on 9 July 2023.

3. [3]

   An interim supervision order was made under the Act by Campbell J on 7 July 2023: see State of New South Wales v Richardson (Preliminary) [2023] NSWSC 794. His Honour ordered in accordance with s 24(5) of the Act that a qualified psychiatrist and registered psychologist be appointed to conduct separate examinations of the Defendant and furnish reports to the Court. Dr Calum Smith, psychiatrist, and Dr Sharon Klamer, consultant forensic psychologist, furnished their respective reports on 16 August 2023.

4. [4]

   This judgment concerns the final determination of the summons, following the Court’s review of four folders of materials over two days prior to the hearing and the taking of evidence and submissions over a further two and a half days. Dr Smith's report puts the case in a significantly different light from that upon which Campbell J assessed it on the material that was available to his Honour at the preliminary hearing on 30 June 2023. Moreover, in the final hearing the Court has been able to examine more closely than was possible in the preliminary hearing the State’s evidence of alleged advocacy by the defendant for a terrorist act or violent extremism.

Defendant’s breach of the interim supervision order

1. [5]

   The conditions of the interim order included that the defendant wear an electronic position monitoring device and that he submit to the supervision and guidance of Community Corrections officers, including that he reside at an approved address and provide a schedule of proposed movements and adhere to it. When police officers who were assigned to enforce the interim supervision order spoke to the defendant prior to his release on 9 July 2023, he said that he would not comply, including that he would not wear the monitoring device and would not reside at the designated address. On that day, after patient endeavours by police to persuade the defendant to co-operate in wearing the monitoring device, he refused to comply with their directions in that respect. He was then arrested and charged with breach of Campbell J's interim order.

2. [6]

   Two charges were laid under s 30 of the Act, which provides for a maximum penalty of 5 years for each infringement. The defendant was remanded in custody. Proceedings on the charge have been stood over to 12 September 2023 for sentence. The 28 days of the interim order are not running while he is in custody on that remand. If the interim order should not be discharged, its time limit would commence to run again upon the defendant ceasing to be detained on remand for the alleged offences of breach.

3. [7]

   I have read Dr Klamer's report, which is thorough and extremely useful, but, without disrespect to her, I will not make reference to it in these reasons but rather will address, as necessary the report of Dr Smith. That is because significant issues in the case, as I perceive them, turn upon the formal psychiatric diagnosis of the defendant and upon questions of what medication is and has been appropriate for him and what future treatment options are indicated. Those matters are not within Dr Klamer's expertise, so that whilst her report contains useful information that I rely upon to form my conclusions, I do not find it necessary to refer to it in detail.

Defendant’s legal incapacity

1. [8]

   Medical records produced to Dr Smith for the purpose of preparing his report include notes from a 16-day admission to hospital in September 2016 during which the defendant's presenting symptoms of paranoid delusions were diagnosed as drug-induced psychosis. There are further records relating to a seven-month involuntary admission from June 2017 to January 2018 at the Cumberland Hospital where the defendant presented with both paranoid delusions and auditory hallucinations.

2. [9]

   Dr Smith reviewed a very detailed report of Dr Furst, forensic psychiatrist, dated 21 February 2019. Dr Furst recorded that while in custody after the index offence of 10 July 2018, the defendant had continued to experience auditory hallucinations and “residual paranoid thinking” leading to Dr Furst's diagnoses of schizophrenia, substance use disorder and personality disorder (antisocial and borderline features). Dr Furst assessed the defendant's schizophrenic illness "towards the severe end of the spectrum".

3. [10]

   A report of Dr Chew, consultant general and forensic psychiatrist, dated 20 July 2020 recorded no delusions or formal thought disorder at that time. Dr Chew’s primary diagnosis was Cluster B Personality Disorder – borderline, predominantly, with psychotic symptoms at times of stress and a possible differential diagnosis of a chronic psychotic illness such as schizophrenia.

4. [11]

   For the purposes of compiling his report, Dr Smith read extensive background material concerning the defendant and, during August 2023, reviewed him by Audio Visual Link to the correctional facility where he is on remand. Dr Smith's reviews by AVL were conducted on three occasions over a total of three hours and 45 minutes. In the first interview, Dr Smith found the defendant mildly agitated but reasonably stable, exhibiting restricted affect, one brief period of emotional expression and a notable lack of spontaneity of speech. Dr Smith said this at p 25 of his report:

5. [12]

   In the second and third interviews Dr Smith found that the defendant's thought disorder persisted and his affect remained restricted. Dr Smith made the following observations regarding these interviews at pp 25 to 26 of his report:

6. [13]

   Upon the whole of the defendant's history and current presentation, Dr Smith concluded at 16 August 2023 that he meets the criteria for a number of diagnoses including schizophrenia, with chronic and acute symptoms, and antisocial personality disorder. Dr Smith considers that the defendant is acutely mentally unwell and requires treatment in secure psychiatric care, including the trialling of antipsychotic and antidepressant medications.

7. [14]

   Dr Smith's findings caused the State to raise on the first day of the hearing the question of whether he lacked legal capacity to give instructions for the conduct of the case: see r 7.18 of the Uniform Civil Procedure Rules. The State obtained the consent of Ms Barbara Ramjan to act as tutor. Dr Smith was called to give oral evidence on this discrete issue before the commencement of the final hearing proper. On the basis of Dr Smith's report taken together with his oral evidence on the first day of proceedings, I was satisfied that the defendant lacks legal capacity according to the tests considered in Rappard v Williams [2013] NSWSC 1279 at [76] to [79] and Bowering v Knox [2014] NSWSC 1107, particularly at [13] and [14].

8. [15]

   At midday on 29 August 2023 I appointed Ms Ramjan as tutor and adjourned for the day to enable her to familiarise herself with the position in the case and to confer with the defendant and counsel as necessary. On the instructions that were received by that means, when the case resumed on 30 August 2023 counsel proceeded to oppose the State's application for an extended supervision order.

The contested issues

1. [16]

   When the summons was filed, the defendant's circumstances brought him within the definition of an "eligible offender" within s 7 of the Act because he was serving a sentence for a New South Wales indictable offence and he is over 18 years of age, being now aged 42. The contested issues with respect to the making of an extended supervision order arise under pars (c)(iii) and (d) of s 20 of the Act. In the circumstances of this case, where all other prerequisites are present, the making of the order depends upon whether the following requirements are fulfilled:

2. [17]

   Given that the Defendant is currently under supervision pursuant to Campbell J's interim order after serving his sentence for a New South Wales indictable offence, he would come under the statutory definition of a "convicted New South Wales terrorism offender", for the purposes of s 20(c)(iii) above, if the following subparagraph of s 10(1) should be found to apply (extracted so far as relevant to the present case):

3. [18]

   The concept of "advocating" in s 10(1)(c)(i) is expanded in sub-s (1A) of s 10, as follows (again, quoted only so far as relevant to the case):

4. [19]

   In determining whether the defendant is a convicted NSW terrorism activity offender under those provisions, it is provided in s 11 that the Court may take into account matters listed in paragraphs (a) to (j) of that section. The matters that the State asks the Court to take into account are primarily reports from Corrective Services officers of statements that the defendant has made while in custody to prison officers and Corrective Services psychologists.

5. [20]

   I am required to assess the significance of those statements both with respect to the defendant's alleged status as a “convicted NSW terrorism activity offender” within s 20(c)(iii) and with respect to the risk of him committing a serious terrorism offence as provided for in s 20(d). To make the assessment it is necessary first to consider what the evidence shows about the defendant's personal background, his criminal record and his psychiatric history, and then to note such authority as exists concerning judicial interpretation of the applicable sections.

Defendant’s personal history

1. [21]

   The defendant's background is summarised in a report of Mr Mark Howard, psychologist, dated 10 November 2009. He was born on 19 November 1980. He is the elder of two children of his biological parents. His parents separated when he was two years old. His father was frequently in trouble with police and was, on occasions, incarcerated. The defendant had an insecure upbringing by his mother up to the age of around 12 years. It appears that she regularly abused alcohol and other substances and was physically abusive towards the defendant.

2. [22]

   According to the history taken by Mr Howard, the defendant's mother turned to religion and married a pastor when the defendant was 12 years old, with some reduction of her substance abuse but with continuing conflict and abusive behaviour towards her children. At age 14 the defendant chose to live with his father in the Wollongong area but his father provided inadequate care. When his father relocated away from the Wollongong area, the defendant remained there. Not wishing to return to his mother's residence, he spent one or two years residing with friends or on the streets. He was also confined in a juvenile correctional centre for some of that time.

3. [23]

   As an adult, the defendant lived with friends and partners mostly in the Wollongong area and for a period during 2007 in Queensland, with a partner. Most of the defendant’s history in early adulthood up to his mid-twenties is of offending and imprisonment, to which I will turn shortly. At times he resided with his mother under parole conditions. On an ongoing basis, the defendant maintains occasional contact with his mother but that appears to be an unstable and unsatisfactory relationship.

4. [24]

   The defendant obtained primary education at public schools in the Illawarra region but his learning was disrupted by the family circumstances to which I have made reference and the absence of support from home. He repeatedly engaged in truancy. Although he commenced secondary education and attended two high schools in the Illawarra, his performance was significantly below average. He was repeatedly disciplined for disruptive behaviour and fighting and he left school part way through year 7. It is evident from this that the defendant has obtained very little in the way of education and from the outset has been ill-equipped for employment. For such time as he has been out of prison in adult life, the defendant has engaged in unskilled or partly skilled work for brief periods.

5. [25]

   The defendant has had two separate enduring relationships with members of the opposite sex, one between 1999 and 2005 and another leading up to the preparation of Mr Howard's report in 2009. He has one child by one of these relationships. A more significant aspect of the defendant's background for present purposes is his criminal record.

Drug use and criminal record

1. [26]

   Following the common pattern of a young person raised in chaotic, abusive and neglectful family circumstances, the applicant commenced to use alcohol and illicit drugs from his early to mid-teens. From the ages 14 to 18 in the years 1994 to 1999 he committed offences of break and enter and stealing that were dealt with in the Children's Court. At age 22, in April 2003, he was convicted of motor vehicle stealing and intimidating a police officer. At age 26 he was imprisoned, commencing in May 2007, for motor vehicle stealing. The sentence was 2 years with a non-parole period of 1 year. The defendant was released to parole on 22 May 2008, at age 27½.

2. [27]

   During May 2009 the defendant carried out a series of four robberies in the Wollongong area, in each case armed with a shotgun and in two cases accompanied by co-offenders. He received an effective total sentence for those offences of 8 years with a non-parole period of 5 years. The sentence ran from his arrest on 25 May 2009. After release to parole on 25 May 2014, the defendant was in the community for a little over 12 months when, on 6 July 2015, at age 34, he committed an offence of damaging property that resulted in another term of imprisonment. The offence was most unusual. The defendant locked himself in the bathroom of a private residence in Bexley, smashed it up and provoked what became a police siege. He was clearly in a mentally deranged state at the time. The defendant was sentenced to 18 months imprisonment with a non-parole period of 13 months. That resulted in his next release to parole on 20 August 2016.

3. [28]

   Very soon thereafter the defendant was admitted to a mental health facility for 16 days, with what appears to have been a drug-induced psychosis. At the expiration of that, he was returned to custody on 18 October 2016, apparently on the revocation of parole for one or more of his earlier sentences. The defendant remained in custody until about June 2017. During part of that period of custody, from 13 February 2017 for about three weeks, the defendant was scheduled for treatment in a mental health facility under s 55(3) of the then Mental Health (Forensic Provisions) Act 1996 (NSW) (rep).

4. [29]

   Upon his release from prison in June 2017, the defendant was scheduled to the Cumberland Hospital for psychiatric treatment. He remained there for seven months until January 2018. The index offence of robbery, armed with a knife, was committed on 10 July 2018, six months after his discharge from Cumberland Hospital. The particulars of that offence were that the defendant entered a liquor store, took a bottle of whisky, presented himself to the service counter, refused to pay for the whisky, produced a knife and demanded that the liquor store attendant hand over the cash in the till, which was a few hundred dollars.

5. [30]

   The defendant’s custodial history may be summed up as follows:

6. [31]

   It can fairly be said that the defendant’s record does not demonstrate a propensity for violence. He never used the weapons that he carried during any of the robberies. His crimes have been economic rather than violent. The defendant has committed some low-level violence within the prison system and those instances are relied upon by the State as bearing upon his risk of violent terrorist offending in the future. However, the institutional violations must be assessed by reference to their circumstances and when that is done they do not stand as a sound guide for any likelihood of future violent offending.

7. [32]

   Having spent 13 of the past 16 years, between the ages of 26 and 42, in prison, with only three years in the community over that time and a significant part of that in mental institutions, the defendant must be regarded as severely institutionalised, with a loss of contact with the community and loss of the ability to function in every day life outside the prison environment. He has suffered such a loss of confidence as to deter him from even seeking to be released on parole during his current term.

8. [33]

   The defendant has expressed and exhibited great anxiety about trying to reintegrate into the community and to resume civilian life. That anxiety, according to Dr Smith, is aggravated by psychotic delusions that there is a contract on his life, that even in prison people have tried to poison him and that in the community he would be followed and in physical danger.

9. [34]

   As will be seen from statements the defendant has made to Corrective Services officers and psychologists, upon which the State relies to support its allegation that he has advocated a terrorist act or violent extremism, the defendant has expressed thoughts, of questionable coherence, about deliberately committing further serious offences in order to secure his return to prison. In that context, when assessing his institutional misconduct, due allowance must be made for the stress of prison life upon such a person, particularly in his state of untreated or inadequately treated psychotic mental illness.

10. [35]

    Additional allowance must be made for the fact that the defendant has served three years of his most recent term through the COVID-19 crisis of 2020, 2021, and 2022. It is well understood by the Court and by all persons concerned in the administration of criminal justice that during that period there have been frequent occasions when prisoners have had to be confined to their cells 24 hours a day for many days at a time. The Defendant has had very little education and has minimal personal resourcefulness to cope with long-term confinement under those conditions. His psychosis would have exacerbated the stresses of such unusually restrictive incarceration.

11. [36]

    The institutional infringements of which he has been guilty have consisted of the following:

12. [37]

    The State more particularly relied upon recent instances of moderate violence since his re-imprisonment for breach of the interim supervision order, as follows:

13. [38]

    The State tendered CCTV video recordings of the defendant’s most recent physical altercations but counsel for the State did not suggest that it was necessary for me to review them. I do not regard any of the defendant’s minor violent acts while in custody, either taken alone or in combination, as significant for the purpose of assessing his propensity for violence. A long-incarcerated prisoner like this would inevitably find himself from time to time in physical conflict with other inmates, particularly given the stressors to which I have referred and the limitations of his personality and psychiatric disorder. Very often the conduct of prisoners within custody is not reflective of how they may be expected to behave in the community.

Development of the defendant’s psychiatric illness

1. [39]

   I have already referred to much of the defendant's psychiatric history but to put it in order I will draw upon the report of Dr Furst dated 21 February 2019. The critical events appear to be as follows. In Dr Furst’s view the defendant’s actions in the Bexley bathroom siege on 6 July 2015 occurred upon him becoming paranoid after relapsing into using drugs. In August 2016 the defendant’s admission for psychiatric treatment for sixteen days was another instance of drug induced psychosis. Dr Furst reported that after return to custody following that admission the defendant:

2. [40]

   With respect to the defendant's transfer to Cumberland Hospital after his release from custody on 11 June 2017, Dr Furst states that the following:

3. [41]

   Later in his report Dr Furst returned to consideration of the defendant's treatment at Cumberland Hospital in the following passage:

4. [42]

   Dr Furst continued his report with a description of the defendant's community mental health team treatment in the period after his discharge from Cumberland Hospital on 11 January 2018 up to the commission of the index offence on 10 July that year. During that period it appears that he continued to receive antipsychotic medication. Dr Furst states that he remained mentally unstable with “ongoing reports of ‘voices’ [auditory hallucinations] and paranoid thinking in the months prior to his arrest”. The defendant said toDr Furst that he found it difficult to trust people and had frequent thoughts of self-harm. He was drinking approximately three bottles of spirits per week which helped to alleviate his apparent psychotic symptoms and mood instability.

5. [43]

   Dr Furst reported that the defendant gave a history of “hearing voices a lot” in the days leading up to the armed robbery offence on 10 July 2018, including voices that told him to hurt someone. He was also drinking heavily during that period and used methylamphetamine on a couple of occasions. Dr Furst said that in custody following his arrest for the index offence the defendant continued to hear a voice in his head which told him that people were out to get him, leading him to believe that other inmates and correctional officers wished to harm him. Dr Furst described the defendant’s report of his symptoms as consistent with residual paranoid thinking and treatment resistant psychotic illness. The doctor recorded that the defendant understood that the voice was also telling him to harm himself and other people which had led to further episodes of self-harm in the prison and prolonged placement in safe cells. It was Dr Furst's view that this severe schizophrenic illness significantly reduced the defendant’s culpability for the offending on 10 July 2018.

6. [44]

   Since Dr Furst's report there have been a plethora of reports upon the defendant's ongoing symptoms while in custody but for the purpose of bringing the situation up-to-date it is sufficient to refer to Dr Smith's report to the Court. I have already referred to Dr Smith's principal conclusions. In addition, and in detail, Dr Smith has included at the end of his report an appendix setting out numerous of the defendant’s current symptoms and signs. Dr Smith describes a "clear psycho social decline". He states that the defendant's presentation now is markedly different to presentations at earlier times when the defendant has been in custody. He says that there has been some evidence over time that the defendant has responded to antipsychotics, notwithstanding that other doctors have expressed uncertainty as to whether the antipsychotic drugs were achieving anything.

7. [45]

   Dr Smith notes that the defendant has not been on Clozapine, which he regards as “the gold standard” for antipsychotic medication, nor has he been prescribed very much of any other kind of medication that would be expected for such a severely unwell person. The doctor notes that the defendant has been infected with Hepatitis B and C viruses and that his abnormal liver function in the past may have been attributable to those infections, suggesting that concern about side effects on his liver may not be a reason to withhold Clozapine. Dr Smith considers that it would be sensible to consider treatment of the defendant with long-acting injections.

8. [46]

   I have already referred to what Dr Smith noted about the defendant's disordered thinking, which he regards as a symptom strongly indicative of schizophrenia. The doctor has acknowledged that the defendant’s symptoms may also indicate a borderline personality disorder but it is his view that there may be concurrent or co-morbid diagnoses of equal validity. He states the following:

Case law

1. [47]

   The last thing to refer to, before quoting the defendant’s statements to Corrective Services staff, upon which the State largely bases its present application, is judicial consideration of the sections that the Court is required to apply.

2. [48]

   The relevant part of the definition of a “convicted NSW terrorism activity offender” is concerned with advocacy for “any terrorist act or violent extremism”. By force of s 4(1) of the Act, “terrorist act” has the same meaning as in Pt 5.3 of the Criminal Code (Cth). In Pt 5.3, “terrorist act” is defined in s 100.1(1) as follows:

3. [49]

   In sub-s (2) of s 100.1 there is a list of actions such as causing physical harm or death to a person, endangering the public and causing damage to or endangering property or infrastructure. In sub-s (3) there is a list of exclusions such as advocacy, protest and/or industrial action that are not intended to cause physical harm or death to any person or to create a risk of such harm. The critical aspect of the definition of “terrorist act” is the twin intents of “advancing a political, ideological or religious cause” and of “coercing, or influencing by intimidation” an Australian government or intimidating the public or section thereof.

4. [50]

   In Hardy v State of New South Wales [2021] NSWCA 338 the appellant raised an issue as to whether his transient delusional state precluded a finding that he had advocated a terrorist act or violent extremism. At [23]-[24] Basten JA made the following observations:

5. [51]

   On the meaning of “violent extremism” in pars (1)(c)(i) and (1A)(a)(iii) of s 10 of the Act, in Hardy v State of New South Wales, the following observations were made:

6. [52]

   The effect of the sections of the Act that I am required to apply, as interpreted by the Court of Appeal, is that I must seek to identify within the statements made by the defendant, first, whether he has disclosed or espoused any ideological or political cause. Secondly, I must ascertain whether he has advocated support for any terrorist act or violent extremism, that is, any violent act or course of violence that would be undertaken with the twin intents of advancing his ideological or political cause and “coercing, or influencing by intimidation, the government” or intimidating the public or a section of the public.

7. [53]

   For the purposes of s 10 of the Act I am required by the decision in Hardy v State of New South Wales to assess the defendant's utterances according to the meaning that they objectively convey without examining whether the defendant, in his thought-disordered and psychotic state, really intended that meaning or held the opinions conveyed with any genuine comprehension or constancy. On the reasoning of Basten JA I understand that I should not discount the face value of the statements, notwithstanding that, having regard to Dr Smith's evidence, they are likely to have been conveyed in a disordered, disconnected manner and to have been driven, at least to some extent, by psychotic delusions.

The defendant’s statements

1. [54]

   The relevant evidence of the defendant's statements concerns things that he said to psychologists in the Acute Crisis Management Unit at Long Bay, where he has been housed since at latest mid-2019. The statements that need to be considered commenced in August 2021 and continued through to April 2023. For most of that period his statements were made in the course of intermittent discussions with psychologist staff members who sought to ascertain his mood and his thoughts and his mental state generally. In those discussions the defendant almost invariably described his thoughts as "in a dark place". He spoke of suicidal ideation and expressed almost constant contemplation of self-harm. The defendant did in fact inflict harm upon himself about 60 times in the four years between April 2019 and July 2023, usually by cutting himself.

2. [55]

   In the psychologists’ contacts with the defendant from August 2021 onwards he expressed a diffuse and unconnected range of grievances about police, Corrective Services, Australian foreign policy, Muslims, indigenous people, social and government policies towards ethnic and religious groups and several other aspects of human affairs.

3. [56]

   The defendant's earliest date for eligibility for parole was 9 November 2021. Commencing in August 2021, as that potential release date approached, the defendant expressed a definite decision not to apply for conditional release. He commenced to speak of an intention to commit further crimes when his full term had expired, in order to be returned to prison. Those conversations evolved into statements that he would carry out multiple murders. The psychologists were bound to escalate the reportage of such statements. The reports came to the attention of Ms Cruickshank, a forensic psychologist within the Countering Violent Extremism (CVE) unit of Corrective Services. She responded by interviewing the defendant over a total of 11 hours between 13 January 2023 and 16 March 2023, for the purpose of assessing the risk posed by him. A number of the statements relied upon by the State as evidence that the defendant has advocated acts of violence in furtherance of an ideological cause were made to Ms Cruickshank during her 11 hours of interviews.

4. [57]

   In its endeavour to impute to the defendant an ideological cause, the State sought to isolate the defendant's statements concerning hostility to indigenous people. However, I consider it necessary take into account the full range and variety of the defendant’s expressed hostilities and grievances in order to gauge whether an intelligible ideology can realistically be distilled from the whole mass.

5. [58]

   On 5 August 2021 the defendant told a psychologist within the Unit that he did not wish to apply for parole because he did not trust himself and was thinking about reoffending. He said he had thoughts about committing another armed robbery or something more serious. He said that if he ended up stabbing or shooting someone he could “blame parole as they let him out”. He said that he was scared that he was having these thoughts. The psychologist’s record of this conversation attributed to the defendant the words: "I hate society at the moment".

6. [59]

   On 20 December 2021 the defendant told a prison officer that upon release he planned to blow up Surry Hills police station and Mascot police station because there are too many corrupt officers in those stations and he needed to do something big in order to return to gaol. He said he was "comfortable living the rest of his life in gaol".

7. [60]

   On 29 March 2022 the defendant told another member of the staff that he had a purpose when he gets out. He said he had friends with “a .223 and pistols”. He would start from Brisbane and work his way down and become a serial killer of random people. He said that he did not have any emotional connection with his victims and would feel nothing. The defendant said he was sick of charities taking and not giving to people in need.

8. [61]

   On 12 April 2022 the defendant spoke to a psychologist in the Unit. He was agitated and raised his voice in frustration. The report included the following:

9. [62]

   On 14 April 2022 during a psychology session the defendant told the psychologist that he had been having dark thoughts in recent weeks. He said that he had plans to access firearms sometime after his release in 15 months’ time and "will do something that will result in him returning to custody for the rest of his life". The record continues follows:

10. [63]

    On 21 April 2022, the defendant spoke again with the same psychologist and said he was willing to spend the rest of his life in gaol, "alluding to his plans post-release without giving details". He again referred to feelings of being let down by the system and it being corrupt.

11. [64]

    On 7 June 2022, the defendant said to a corrective officer that he had made up his mind not to apply for parole and again said that he had plans for when he got out although he would not elaborate, saying that he did not want to incriminate himself. He said he would definitely not answer whether his plans involved harming himself or others.

12. [65]

    On 24 June 2022, the defendant spoke with a psychologist in his unit. He said that a voice had urged him to injure himself and not to comply with prison directions. He said that the intensity of this voice was increasing. The psychiatrist continued her report in these terms:

13. [66]

    On 27 June 2022 in another interview with a staff member he said that the continuing bad thoughts were getting stronger and that they related to "a plan that he has for when he is eventually released":

14. [67]

    On 11 August 2022, the defendant reported to one of the psychologists that he was experiencing ongoing and intense suspicious ideation and was hearing voices. The report continued as follows:

15. [68]

    From a break in the records it appears that the defendant must have been in a better state of mind from mid-August 2022 until January 2023. On 10 and 11 January 2023 there was a significant incident of self harming by slashing his forearms. On 13 January 2023 Ms Cruickshank initiated her contact with the defendant to try to evaluate the seriousness of the statements that had been reported to her by psychologists in the Acute Crisis Management Unit. When she spoke to him on 13 January she made a record that included the following:

16. [69]

    Significantly, this communication with Ms Cruickshank was the antithesis of advocacy, persuasion or urging. According to this record, far from advocating a terrorist act or violent extremism, the defendant complained about not having been deterred from the plans he had described to other officers, which he said he would implement upon his release.

17. [70]

    On 14 and 15 January 2023 there was another significant incident of the defendant self-harming. He cut his forearms and used the blood to write on the walls of his cell.

18. [71]

    On 17 January 2023 Ms Cruickshank conducted the longest and most detailed debriefing of the defendant concerning his assertions that he would carry out violent acts upon his release. This took place over two sessions, one in the morning and one in the afternoon. It is necessary to quote at length from Ms Cruickshank's report on this occasion because it appears to encapsulate the statements of planned action upon which the State centrally relies. On this occasion Ms Cruickshank assessed that the defendant was able to articulate well and that he was logical, coherent and confident. Notwithstanding those observations she recorded that he was:

19. [72]

    It was Ms Cruickshank's view that he did not present with low mood. She thought his affect was somewhat restricted and that he at times had “an intense stare and would quickly move between topics”. Nevertheless she thought there were no observed psychotic symptoms or memory deficits. Despite the statement that he would move quickly between topics, Ms Cruickshank’s record reads as if there was a fairly continuous discussion on substantially the one topic.

20. [73]

    The defendant started by saying that he had something to give Ms Cruickshank and at the end of the interview he arranged for another officer to go to his cell and bring back to her a laminated copy of what Ms Cruickshank describes as the National Colonial flag, being a flag design that was proposed for the Australian Colonies in the 1800s. Ms Cruickshank noted that this flag does not appear to have been obviously associated with any political movement, yet she thought that the defendant had taken it to symbolise his plan which she then obtained from him. The following are relevant extracted parts of her report:

21. [74]

    The State places reliance upon the words that I have emphasised in bold above. It is not known whether the defendant used the word “cause” or whether it is Ms Cruickshank’s term. Either way, the appearance of that word in the evidence is not significant in determining whether the grievances described by the defendant constitute a political or ideological cause or whether it would be more accurately said that what he was proposing to get publicity for was a personal complaint of racially based unequal treatment of himself.

22. [75]

    On 30 January 2023 there was a further substantial discussion between Ms Cruickshank and the defendant, on this occasion ranging across a wider spectrum of disgruntlement. The relevant extracts from the report include the following:

23. [76]

    In a further discussion the next day, 31 January 2023, the defendant repeated his insistence upon not seeking parole.

24. [77]

    On 9 February 2023 there was another long session in which Ms Cruickshank obtained from the defendant statements about his grievances and intentions. These included the following, according to her report:

25. [78]

    Ms Cruickshank then reported a series of points that she attributed to the defendant. I am not able to accept that these would have been conveyed by him in the ordered arrangement that she has reported, having regard to Dr Smith’s report about the defendant’s thought disorder and Ms Cruickshank’s record of an earlier date concerning his tendency to jump from topic to topic. Nevertheless, I accept that the following things were said at one stage or another during the interview, all expressed in Ms Cruickshank’s paraphrase except to the extent of the words in quotation marks:

26. [79]

    The last two points make explicit that which, in my opinion, is generally apparent from this record of the defendant privately communicating his thoughts and ideas to Ms Cruickshank, at her request. These statements contain no element of advocacy or persuasion. The essential character of the defendant’s recounting of grievances was simply his disclosure of what he was thinking to an official Corrective Services psychologist. She had told him on 13 January that she was making an assessment of him and the defendant was cooperating, with apparent frankness. The defendant’s litany of grievances was not broadcast to the public or shouted across the prison yard or incorporated in any social media post or in a letter or the like. To construe this tirade of disgruntlement as some form of advocacy for a cause is in my respectful view divorced from the reality of the circumstances in which the statements were made. It is also contrary to the explicit disclaimer: the defendant’s words emphasised above, amount to a disavowal of any attempt to persuade anybody to anything.

27. [80]

    Further elements of this long interview included the following:

28. [81]

    In this statement it is shown that, far from seeking to advance a cause or to coerce a Government or intimidate the public, the defendant was merely pining for a different state of society in an earlier period. There is no project suggested of altering anything for the future. This is nostalgia for the past, not advocacy for restoration of past social conditions or for any other cause.

29. [82]

    The conversation with Ms Cruickshank on 9 February 2023 continued with the defendant’s expression of opinion that things were better in the eighties. He expressed approval of Bob Hawke on the basis that he was “a full Aussie” and drank beer and was easy-going. He expressed a view that they "fucked up" in the nineties by letting people into Australia without background checks. Ms Cruickshank’s note continues:

30. [83]

    A further statement by the defendant in this interview, disavowing any endeavour to change anything, to influence anybody or to persuade or advocate with respect to anything, was the following:

31. [84]

    On 17 February 2023 in one of his usual sessions with a psychologist in the Acute Crisis Management Unit the defendant reported having been spoken to by Ms Cruickshank and having related his plan to kill 15 middle age indigenous men when back in the community. The psychologist recorded that he maintained this plan but provided no further details.

32. [85]

    On 21 February 2023 the defendant requested to speak to a female officer from the Case Management Unit, and he reported to her that his aunt in Queensland with whom he had proposed to reside upon release was no longer willing to have him. He said that he had no real hope of living outside in the community. He agreed with the officer's comment to him that he may be sabotaging his own release. She reported that he spoke of the fact that he may stay in under an order. This is stark evidence of the degree to which defendant has become institutionalised.

33. [86]

    On 13 March 2023 the defendant had another conversation with one of the psychologists in his Unit. He referred to a recent event of physical conflict in the Unit in relation to a failure to follow directions. He expressed a perception of injustice. He said that he did not want to move anywhere.

34. [87]

    On 24 April 2023 the defendant was spoken to by a member of the Risk and Intervention Team when he was secured in his cell. He sought to have a change to the conditions that were being imposed on him at that time but was told that he was perceived as manipulating and that his demands would not be met. This resulted in the defendant expressing frustration and saying the system is broken in gaol and in society and that eventually he would get his own way. The defendant went on to complain to the Risk and Intervention Team member that eventually, in nine weeks, he would be free to do whatever he wanted and that "society is fucked and the whole system doesn't work ". The defendant stated to this officer that he was planning to kill 10-15 people in different States around Australia, to hit the news and tell the journalists what happened in gaol about this broken system. He said that he did not care if he was killed during the manhunt, that he was sure that was not going to happen because he knows how police operate. He said the majority of his targets are aboriginal and people claiming any sort of percentage of aboriginal inheritance because they are "sucking the life out of the country". He said the anti-terrorism unit had nothing on him and that in due course he would tell the journalists that everything was recorded but no one did anything to stop him. He also stated that during one of his interviews with the psychologist he had been told that his vision is of communist belief and very patriotic but he denied being communist.

Conclusions regarding the statements relied upon by the State

1. [88]

   I cannot discern in any of the defendant’s statements, either individually or in the whole of them taken together, any cluster or sequence or system of beliefs or ideas that could reasonably be characterised as an ideology or as the expression of a political cause or objective. In the defendant's depressed, disordered and delusional state, he has shown by his expression of hostile and at times violent sentiments that he is dissatisfied with many aspects of societal relations, inter-ethnic relations, government policies and the conduct of government institutions and agencies. However, he has expressed no alternative arrangement that he would like to bring into being. Nor has he expressed any desire to disrupt or to destroy the working of the whole of government without replacement.

2. [89]

   The defendant has expressly disavowed any desire to change the beliefs or behaviours of others, or to bring about change in anything that is being done by governments or by any section of the public. Despite his disgruntlement with so much, he espouses no cause, political, ideological or otherwise. He has no objective towards which he desires to coerce any government. The defendant has neither expressed nor implicitly revealed any wish to intimidate the public or any section of it for any purpose. He is just disgruntled, and if taken at his word, he is in a mood to express his disgruntlement by killing people.

3. [90]

   The defendant has stated a plan to kill a number of victims at random or alternatively to kill up to 15 indigenous adult males. That plan bears the character of a proposal for violent expression of personal grievance. I reject the submission of counsel for the State that it represents a one man "idiosyncratic ideology".

4. [91]

   I also find, as earlier stated, that there is no element of advocacy in the defendant’s statements. In the course of narrating them I have pointed out explicit disclaimers of advocacy or urging. Overall, there is absent from the statements any attempt to urge upon the listener, or upon anyone else to whom his thoughts might be conveyed, adherence to any particular point of view or to identify a cause that might be supported by voice or action. No message of persuasion could be inferred from these utterances to the psychologist.

5. [92]

   At its highest the defendant has stated what he individually thinks and proposes to do, without any apparent consideration for whether the listener or anyone to whom his thoughts might be passed on should agree or follow suit.

6. [93]

   Also the circumstances of the making of these statements are inconsistent with any element of advocacy. The statements were not made publicly or to fellow inmates or to persons to whom he might do harm. They were all made directly to people in authority, in a setting where those persons, particularly Ms Cruickshank, sought from him disclosure of his thoughts. That context and the purpose and nature of his disclosures is entirely against a construction of the things said having been a form of advocacy.

7. [94]

   With respect to s 10(1A), one could characterise the statements as the expression of threats, although not made in the sense of threatening harm to the persons spoken to but, rather, threatening harm to others. A threat may be made to A about harming B. However, the following part of sub-s (1A)(a)(iii) is not fulfilled:

8. [95]

   There is no evidence before the Court of the existence of any person, group, organisation or ideology who or which supports terrorist acts or violent extremism and makes threats to murder indigenous adult males on the basis of their race. I have no knowledge of the existence of any such people, groups et cetera. No such phenomenon is judicially noticeable.

Conclusion on s 10 and par (c)(iii) of s 20

1. [96]

   I conclude that the defendant is not a convicted NSW terrorism activity offender. Nor is he within any of the other class of terrorism offender referred to in s 20(c). The Act does not apply to him. The State's summons must be dismissed and the interim order made by Justice Campbell on 7 July 2023 must be discharged forthwith.

Assessment of risk under s 20(d)

1. [97]

   If I had formed the view that the defendant was a convicted NSW terrorism activity offender within s 10 of the Act I would nevertheless have dismissed the State’s summons because, on the evidence tendered, for the purposes of s 20(d) of the act I would not be:

2. [98]

   First, I do not consider that there is an unacceptable risk of the defendant committing any violence or damage to property that could constitute the physical element of a terrorist act as defined in s 100.1 of the Criminal Code. In that respect I reiterate that the defendant has never perpetrated any significant personal violence against any person in the 42 years of his life to date. His only act of significant property damage was the Bexley bathroom siege in 2015, which occurred during a floridly psychotic episode. The instances of the defendant threatening violence in conjunction with his robbery offences, by brandishing weapons, coupled with his minor prison assaults and the instances of damage to property in his cell, are not sufficient to indicate a significant risk of terrorist violence.

3. [99]

   The defendant’s statements to Corrective Services psychologists are some evidence that he poses a risk of carrying out an act of personal violence, but I consider that the risk is not elevated to the point of being “unacceptable … if he is not kept under supervision”. In reduction of the weight that I attribute to those statements I take into account not only the defendant’s psychotic derangement at the time they were spoken but also the fact that there is a clear element of the defendant ruminating obsessively about his concern at being released into the community.

4. [100]

   I recognise that the defendant has stated that he would use firearms in the offences proposed. In that regard, it is notable that there is no evidence of him having been in possession of firearms during any of his brief interludes of freedom over the past 14 years, since he committed the robberies in the Wollongong area in 2009. There is no evidence that he has criminal connections or any ready means by which he could obtain firearms. His assertions that he would gain such weapons appear to be part of his delusions. Similarly his concept that he would carry out multiple murders by avoiding apprehension, travelling through the countryside and outwitting police, appear to be a product of delusion. The defendant has exhibited no such capability at any time in his life, so far as the evidence shows.

5. [101]

   Secondly, s 20(d) is concerned not merely with the risk of commission of an act of personal violence or property damage but with the risk that such an act would be accompanied by the twin intentions prescribed in paragraphs (b) and (c) of the definition of “terrorist act” in s 100.1 of the Criminal Code , quoted at [48] above. I perceive negligible risk that if the defendant were to act violently towards people or property he would do so with either of those intentions. I have already said that I find his widely based dissatisfaction with the state of his country and world affairs devoid of any ideological cause that he wishes to advance and that he has not evinced any desire to coerce a government or intimidate any part of the community for any purpose.

6. [102]

   There is some degree of risk that the defendant’s mental disorder may dispose him to lash out violently or destructively on some occasion. That would be true of thousands of people at large in the community, who are not under a regime in the nature of an Extended Supervision Order, but who suffer psychotic illnesses or, from time to time, drug induced psychoses.

Urgency of assessment under the Mental Health Act 2007 (NSW)

1. [103]

   The risk with respect to the defendant is not unacceptable for the purposes of the Act. However, his circumstances plainly call for consideration by those who have responsibility under the Mental Health Act 2007 (NSW). Section 14 of that Act provides as follows:

2. [104]

   The defendant will likely remain in custody under his present remand until 12 September 2023. Against the likelihood that the Local Court, in dealing with the two charges of breach of the interim supervision order, will see fit not to impose any further term of imprisonment, the defendant should be urgently assessed by an authorised medical officer under s 14, to determine whether he should be detained in a mental health facility as an involuntary patient under s 12.

3. [105]

   Risk to the safety of the community falls to be assessed by a medical practitioner on psychiatric grounds, the terms of the Terrorism (High Risk Offenders) Act not being engaged on these facts.

Release of the defendant without supervision or support in the community

1. [106]

   It is regrettable that the defendant did not apply for release to parole. If he is not to be scheduled for involuntary psychiatric treatment, as Dr Smith has recommended in emphatic terms, then the defendant will shortly be released into the community without supervision by Community Corrections Officers, under parole conditions, and without any other support or supervision under statute. Such unsupported release has led to serious repeat offending by other persons in comparable circumstances in the past. I have urged the defendant's legal representatives to try to recruit a prisoner welfare charity or similar organisation to put in place support in the community for the defendant's re-integration.

2. [107]

   I am not sufficiently aware of the workings and protocols of the State Parole Authority to know how this type of situation has been dealt with in the past or whether a policy has been formulated with respect to offenders, such as this defendant, who do not apply to be released prior to expiry of their full term. The Authority may think it appropriate in some such cases to consider granting parole and discharging such prisoners on conditions of supervision, notwithstanding that they may wish to serve out their full terms – for the purpose of providing a window of opportunity for supported re-integration into the community.

Orders

1. [108]

   For these reasons orders were made on 1 September 2023 as follows:

   1. (1)

      The plaintiff’s summons is dismissed.

   2. (2)

      Orders 2 and 3 made by Campbell J on 7 July 2023, providing for interim supervision of the defendant and for compliance with conditions, are discharged with forthwith.

   3. (3)

      The plaintiff is to pay the defendant’s costs of the proceedings.