State of New South Wales v Tabbah (Preliminary)

1. [1]

   On 3 December 2024, the State of New South Wales, the plaintiff, commenced proceedings against Salim Tabbah, the defendant, seeking an extended supervision order (“ESO”) of two years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The plaintiff also seeks interim orders for supervision, (“ISO”), for 28 days commencing on 5 March 2025, and the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court.

3. [3]

   This judgment deals only with the making of the interim orders.

4. [4]

   In light of the material tendered by the plaintiff, and the appropriate concessions made by the defendant’s counsel in the written submissions and at the hearing, I am satisfied that the orders sought by the State should be made.

5. [5]

   The only matter for debate was whether conditions 4 (abusive behaviour); 7, 8 and 9 (schedule of movements); 11 (curfew); 14 and 15 (visitors) and 27 (club membership) should be imposed, or should be imposed in the form argued for by the plaintiff.

6. [6]

   The resolution of that debate is set out in this judgment under the heading: “The contested conditions”. In this regard I was assisted by the helpful written and oral submissions of counsel for the defendant, Mr de Mars, and Mr Chapman, counsel for the plaintiff.

Relevant legal test

1. [7]

   The preliminary application is limited to an ISO of 28 days length. At this stage I am not engaged in the task of weighing up material contained in the evidence, or predicting the result of the plaintiff’s application at final hearing.

2. [8]

   What I am required to do is to consider whether the facts and matters contained in the documentation tendered by the plaintiff, would, if proved, justify the making of an ISO.

3. [9]

   The test is not a stringent one: see State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. It is necessary to have regard to the objects of the Act - safety and protection of the community being paramount - and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

Attitude of the defendant

1. [10]

   In his written submissions, Mr de Mars informed the Court that the defendant did not oppose the imposition of an ISO, including taking no opposition to the vast majority of the conditions proposed by the State.

2. [11]

   Express, (and appropriate), concessions were made for the purposes of this interlocutory application that:

Statutory considerations and the evidence tendered on the application

1. [12]

   In deciding whether I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not supervised, I must consider the evidence tendered addressing the matters set out in s 9(3) of the Act, namely:

2. [13]

   The plaintiff tendered the following affidavits:

3. [14]

   The defendant tendered an affidavit of Melissa Smith, solicitor, affirmed 29 January 2025 which annexed correspondence regarding the defendant’s attendance at programs in custody, and the Chaplain and psychologists’ entries in the case notes relevant to issues of insight, remorse, accommodation and family support. Also annexed was the Lebanese Muslin Association Prayer calendar, which outlines special times at which prayers need to be attended.

4. [15]

   A comprehensive Risk Assessment report by Mr Ardasinski, psychologist, dated 12 September 2024 informs considerations s 9(3)(c) and (d). Mr Ardasinski assessed the defendant as at a high risk of future violence when compared to other violent offenders, and that he will require a “high level of effort to prevent further violence”.

5. [16]

   Mr Ardasinski agreed with Ms Huynh (who was the author of his VOTP treatment report) that the “most likely” form of violence that the defendant risks perpetrating if released to the community unsupervised was “expressive violence in response to a perceived threat, provocation, or interpersonal conflict (most likely) or, if he reassociates with past antisocial peers, he may alternatively reoffend by engaging in instrumental violence on behalf of his criminal peers (least likely)”. (Emphasis added)

6. [17]

   Mr Ardasinski considered that the defendant met the diagnostic criteria for the following conditions:

7. [18]

   Mr Ardasinski explained that there is a degree of overlap between these conditions. He noted vulnerability to behavioural outbursts and that given his PTSD, the defendant can have marked alterations in arousal and reactivity and can be hypervigilant, with exaggerated startle response, particularly where he perceives officers are disrespecting him.

8. [19]

   Mr Ardasinski stated that he was impressed by the defendant's level of insight and the way he spoke about his situation and that he has more recently accepted full responsibility for his offending: (Report at par 25). Mr Ardasinski also noted that the defendant has shown remorse for and insight into his offending.

9. [20]

   Mr Ardasinski stated that:

10. [21]

    Mr Ardasinski explained some particular considerations relevant to the interrelationship of risk with the way the defendant is supervised and treated:

11. [22]

    An affidavit of Mr Banton informed amongst other matters, consideration s 9(3)(d1), and explained the supervision proposed under the ESO and the general rationale behind the various conditions that were sought.

12. [23]

    There is evidence that the defendant has participated in relevant programs in custody. He completed the Violent Offender Therapeutic Program (“VOTP”), directed to strategies and skills to manage difficult situations without using aggressive and violent behaviour. He completed the Explore, Question, Investigate, Practice, Succeed program (“EQUIPS”) which provides skills to address the risk of reoffending, as well as the Controlling Anger and Learning to Manage Program (“CALM”) completed in January 2025: (s 9(3)(c)).

13. [24]

    Some positive observations were made by staff about his engagement with the VOTP, as set out in the Joint Statement of Agreed Facts:

14. [25]

    The defendant also participated in psychological counselling with which he was said to be engaged to a satisfactory level: s 9(3)(c) and (e).

15. [26]

    As submitted by Mr Chapman, it is difficult to assess with confidence whether the defendant will comply with supervision orders: (s 9(3)(e2) and (f)), in circumstances where he has been in custody for the last 13 years and has spent practically all of his adult life in custody. I consider that this requires an impressionistic assessment to be made by the Court based on the evidence currently available, with focus on his current cooperation with Corrective Services staff, and more recent assessments of his psychological health. Based on the material I have read, and in particular the recent observations of Mr Ardasinski about insight into the causes of his offending behaviour, I am satisfied the defendant will comply with supervision orders that are not unreasonable or unnecessarily prescriptive, and that are fair and respectful of his situation.

Background and outline of the offending: (s 9(13)(h) and (h1))

1. [27]

   The following summary has been taken from the Joint Statement of Agreed Facts helpfully provided by the parties. The Court was assisted by this document as a fair summary of essential matters:

Conclusion – s 5B(d) of the Act

1. [28]

   Having considered the evidence addressing the mandatory matters set out in s 9(3) of the Act, I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However a question mark remains over whether some of the proposed conditions are appropriate to impose.

Principles regarding the imposition of conditions

1. [29]

   Section 11 of the Act empowers the Court to impose conditions that it determines are appropriate, and contains an illustrative list of the types of conditions that might be imposed.

2. [30]

   The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 per Fagan J at [39]; State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 per Garling J at [103].

3. [31]

   Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of the Act. As stated by Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [129], the Court “will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kinds of conditions are likely to be effective”.

4. [32]

   I entirely agree with the remarks of Basten JA. A formulaic approach is not appropriate. To impose every available or conceivable condition, without properly considering their efficacy and appropriateness to address risk in the context of a particular offender’s situation, is not what the Act requires. The task requires an assessment of the interaction of conditions with each other, with attention paid to the role of a particular condition when considered as part of the whole regime of supervision. Imposing conditions that have the effect of criminalising minor behavioural matters is unfair and setting up an offender to fail. It does little, if anything, to “ensure the safety and protection of the community” in any real sense, and can be actively discouraging of efforts at rehabilitation by offenders.

The contested conditions

1. [33]

   The Crown sought a condition in this form:

2. [34]

   Mr de Mars submitted that the Court should be reluctant to criminalise otherwise non-criminal behaviour by imposing this condition in that form, citing the persuasive, (and undoubtedly correct) remarks of Fagan J in State of New South Wales v KW (Preliminary) [2023] NSWSC 397 (“KW”) at [14] to [15] and McNaughton J in State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479 (“Ayoub”) at [27] and [28].

3. [35]

   Mr Chapman submitted that those cases did not involve a defendant like this one who has a history of attacks on law enforcement and Correctives Services officers, and so his situation can be “distinguished” from those the subject of the remarks of Fagan J in KW, adopted and agreed with by McNaughton J in Ayoub.

4. [36]

   I do not agree. The statements of Fagan J in KW are not reactive ones but address a basic principle of justice that has a wider context and application:

5. [37]

   When I pointed out the particular practical difficulties created by the potential subjectivity entailed in the words “abusive behaviour”, Mr Chapman proposed the deletion of those words.

6. [38]

   This proposed redaction would leave condition 4 as creating a second line of criminality for behaviour already covered by the criminal law. There is no proper reason to do this. Despite the defendant’s history, I do not accept that there is a proper basis for imposing a condition in this form and so I decline to impose condition 4.

7. [39]

   The defendant has agreed to wear a monitoring ankle bracelet but opposes having to provide a schedule of movements to his DSO as the plaintiff has proposed:

8. [40]

   The defendant proposed this alternative wording should the Court considers that a schedule of movements should be required:

9. [41]

   Mr Chapman submitted that conditions 8 and 9 in the form proposed by the defendant would be acceptable, but that the DSO must know the order in which the proposed activities are to take place and so requires a timetable to be part of the schedule of movements, and proposed condition 7 must remain.

10. [42]

    Mr de Mars submitted that in circumstances where the author of the Risk Assessment report, Mr Ardasinski, counselled against “overly invasive supervisory conditions”, the Court should think carefully about the most suitable approach. The defendant is a person who is at a real risk of being permanently institutionalised. His transition into the community should be managed by conditions that manage risk, rather than impose unnecessary and excessive conditions that are invasive to the defendant’s decision-making and his taking responsibility for that decision-making. Mr de Mars argued that the Court may be imposing an unfair potential criminal sanction upon the simple exercise of basic freedoms and normal steps towards reintegrating into the community should the defendant, for example, enter a shop to get something to eat in a different order to that which he has told his DSO he will be doing that day.

11. [43]

    Mr de Mars emphasised the need for the defendant to establish a routine himself, and to exercise his basic autonomy as a member of the community in a responsible fashion. To impose an excessive level of supervision upon this developing skill, and to criminalise any departure from it, runs the risk of interfering with that process from the beginning. Criminalising a minor departure from a schedule of movements that has been documented to a DSO, can lead to criminal sanction and that would be counter-productive to rehabilitation and is in no way protective of the community.

12. [44]

    I accept Mr de Mars’s submissions. A schedule of movements can be an important matter for some ISOs and ESOs, for example where a paedophile defendant is dishonest and pursues furtive activities to groom children for further offending. In cases like that, schedules have a protective role to perform.

13. [45]

    The main risk factor for this defendant is sudden impulsive anger. This could arise anywhere, at any time, and is more likely to arise where he perceives he is being disrespected, overborne or where those in authority over him are acting unreasonably or offensively. Mr Ardasinski, a very experienced psychologist, says as much in his careful and considered report. I am not satisfied that the imposition of a requirement for a schedule of movements does anything at all to address that risk for this defendant. If anything, it is a millstone to rehabilitation without any real purpose to be served, despite the very general assertions by Mr Banton in his affidavit. I do not see imposing such a regime as appropriate in this case and see it as a potential source of conflict, misunderstandings and anxiety. If the defendant decides a cooperative optional process like this would be helpful to him - planning his time in consultation with his DSO, that option is always there and can be part of the wider supervision and support provided by the DSO. However I decline to impose conditions 7 to 9, or any condition that demands a schedule of movements be pre-provided to the DSO.

14. [46]

    Although the defendant opposed a curfew condition being imposed, in my view there is some stabilising role to be gained with the defendant establishing connection with a home-base by requiring him to be at home between 10:00pm and a suitable time in the early morning. This is to assist him to establish routines, and to have a base from which to attend work and/or other activities during the day. Whilst the Crown submitted that the curfew is necessary “so that the ESO team can monitor the defendant’s location” and the history of “offending with antisocial associates at night” (Mr Banton’s affidavit, par 72), I consider the reason I have given to be an important and persuasive one.

15. [47]

    It is essential, however, as submitted by Mr de Mars, that there is some flexibility for the defendant to be able to raise particular matters with his DSO and to be at liberty to attend particular religious occasions and times of prayer consistent with his religious obligations and observances as set out in the affidavit of Ms Smith.

16. [48]

    Mr Chapman maintained the position, on instructions from his clients, (a number of whom were present in Court), that the DSO should hold the approving hand about attendance at “any approved places of worship”, because of some vague reference to some places of worship being locations at which persons with criminal background may be present. Mr Chapman was not able to develop this submission with any specificity.

17. [49]

    I found this argument unpersuasive. The idea that a DSO should hold a supervisory role over a person’s religious observance and the location at which it should occur is a very unpalatable one, particularly in circumstances where an affidavit explaining the need for flexibility in this regard has been filed, served, and tendered.

18. [50]

    The defendant’s proposed wording of the curfew condition was appropriately practical, and directed to reasonable exceptions for religious observance and medical emergency.

19. [51]

    The form of curfew condition I impose is the wording proposed by the defendant.

20. [52]

    The plaintiff initially proposed a condition requiring the defendant to notify a DSO of any visitor entering and remaining at his approved address and not allowing any overnight visitors other than persons who ordinarily reside there, without prior approval of a DSO.

21. [53]

    This was modified by the plaintiff during argument to confine the condition to the defendant’s own room if the approved address is shared accommodation, and a notification to the DSO of visitors within 24 hours, but still no overnight visitors without prior DSO approval.

22. [54]

    This modification goes some way to improving the practicality of the condition in circumstances where the accommodation has not yet been identified.

23. [55]

    The defendant proposed a wider arrangement that allowed for 24 hours notification of visitors remaining and 7 days notification in respect of anyone else living there allowing a visitor to remain or stay.

24. [56]

    Conditions 14 and 15 were difficult to address in the abstract. Depending on the nature of the accommodation, it could be quite unfair and unrealistic to have a condition imposed by which a defendant undertakes to notify a DSO of any overnight guests of other residents.

25. [57]

    There is also no logical reason that a visitor “remaining”, potentially all day and a visitor “staying overnight” be treated differently. The focus of conditions is to address risk. The risk being addressed is criminal associations. That is the same whether it is day or night. The fact that the index offence occurred at night does not provide a basis to require the defendant to have to have night time visitors pre-approved.

26. [58]

    The management of this risk is addressed by the interrelationship between this condition and conditions 1, 3, 12, 13, 25 and 26. The approach to this condition proposed by the defendant, as well as limiting its operation to the area over which the defendant has actual control, is appropriate.

27. [59]

    Condition 27 in the form proposed by the plaintiff is appropriate. The defendant can visit any gym or boxing club he likes. It is not until he wishes to join or to regularly attend, that the condition will apply. There is nothing invasive about cross-checking with his DSO before joining a club, be it a gym or any other club. Accordingly, this condition is imposed in the form sought by the plaintiff. It is expected that permission to join a club would not be unreasonably withheld. The positive effects of exercise in an appropriately equipped environment, for mood management and fitness, would no doubt be borne in mind by any DSO.

Orders

1. [60]

   I make the following orders: