Attorney-General v Hadashah Sa'adat Khan
[2022] VSC 507
•25 August 2022 (Reasons provided 31 August 2022)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2022 03216
| ATTORNEY-GENERAL | Plaintiff |
| v | |
| HADASHAH SA’ADAT KHAN | Defendant |
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JUDGE: | John Dixon J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2022 | |
DATE OF JUDGMENT: | 25 August 2022 (Reasons provided 31 August 2022) | |
CASE MAY BE CITED AS: | Attorney-General v Hadashah Sa’Adat Khan | |
MEDIUM NEUTRAL CITATION: | [2022] VSC 507 | 1st Revision: 26 February 2024 |
*This is a redacted version of the judgment that was previously published on 31 August 2022.
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PUBLIC LAW – Application for an interim supervision order (ISO) and extended supervision order (ESO) under Criminal Code Act 1995 (Cth) – Defendant sentenced to imprisonment for terrorism offences in 2022 – Sentence completed – Whether unacceptable risk of committing serious Part 5.3 offence if released into community unsupervised – Whether there are reasonable grounds for considering that an ESO will be made – Whether there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the ISO is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk – Criminal Code Act 1995 (Cth) ss 105A.1, 105A.5, 105A.6B, 105A.7A, 105A.9A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Ginsbourg with Ms A Lord and Ms R McEwen | Australian Government Solicitor |
| For the Defendant | Mr R Nathwani | Massi Ahmadzay & Associates |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Evidence............................................................................................................................................... 2
The offending..................................................................................................................................... 4
Interim supervision orders............................................................................................................... 6
Consideration of the plaintiff’s proof............................................................................................ 8
Construction of s 105A.9A(4)(c)&(d).......................................................................................... 9
Requirements for an ESO........................................................................................................... 11
Unacceptable risk........................................................................................................................ 12
The proposed conditions................................................................................................................ 17
Reasonably necessary, reasonably appropriate and adapted.............................................. 17
Assessment of conditions........................................................................................................... 19
Other matters.................................................................................................................................... 23
Undertakings............................................................................................................................... 23
Confidentiality and suppression.............................................................................................. 23
HIS HONOUR:
By an originating motion filed 19 August 2022, the Attorney-General for the Commonwealth of Australia sought post-sentence orders pursuant to Division 105A of the Criminal Code (Cth) (the Code),[1] in particular, an extended supervision order (ESO) pursuant to s 105A.7A and an interim supervision order (ISO) pursuant to s 105A.9A in relation to the defendant, Hadashah Sa’Adat Khan.[2]
[1]Schedule to the Criminal Code Act1995 (Cth) (Code).
[2]Section 105A.13 provides that the court must apply the rules of evidence and procedure for civil matters during a post sentence order proceeding.
On 25 August 2022, I made an ISO in respect of the defendant on certain conditions.
Section 105A.16 of the Code, consistently with the time honoured practice of the court, requires that I state the reasons for my decision and cause those reasons to be entered into the records of the court. These are my reasons.
Background
On 25 August 2022, the defendant was serving a sentence of imprisonment for an offence of providing support to a terrorist organisation contrary to s 102.7(1) of the Code (index offence). The defendant committed this offence in 2016 when she was aged 18. She was arrested and charged on 25 February 2020 and has been in custody since that date. She is now aged 24.
On 10 June 2022, the defendant was sentenced by a judge of the County Court for offences including the index offence to a total of 2 years and 6 months’ imprisonment with a non-parole period of one year and eleven months. Pre-sentence detention of 836 days was declared as time served and her sentence expired on 26 August 2022 requiring her release from custody, that is, on the day following the pronouncement of the court’s order.
To obtain an ESO the plaintiff must demonstrate, as s 105A.7A(1) requires, on the balance of probabilities, that the defendant poses an ‘unacceptable risk’ of committing a serious Part 5.3 offence. That application could not be determined in the available time and, pending its resolution, the plaintiff applied for an ISO to be made prior to the defendant’s release from custody on 26 August 2022. Section 105A.9A(4) permits the court to make an ISO if the plaintiff proves certain matters, as discussed below.
Evidence
The plaintiff tendered a considerable body of evidence by affidavit. The receipt of this evidence by the court for the purposes of determining the application for an ISO was not contested by the defendant. There was no cross-examination. That evidence was:
(a) Four affidavits of Evan Evagorou, Senior Executive Lawyer of the Australian Government Solicitor, sworn 10 August 2022, 17 August 2022, 19 August 2022 and 21 August 2022 that:
(i) addressed matters relevant to the statutory preconditions for the making of an ESO and an ISO; and
(ii) annexed the sentencing remarks, prosecution opening and defence plea submissions and materials relevant to Ms Sa’Adat Khan’s offending, and the transcript of the oral plea hearing.
(b) Two expert reports by Dr Chelsey Dewson (a forensic psychologist engaged in private practice), dated 21 July 2022 and 1 August 2022, which assessed the risk of Ms Sa’Adat Khan committing a terrorism offence to be low-moderate.
(c) The affidavit of Frank Dumic, Acting Assistant Commissioner, Security and Intelligence Division of Corrections Victoria, sworn 12 August 2022, which described and annexed records contained within Ms Sa’Adat Khan’s prison file.
(d) The affidavit of Jennifer Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 16 August 2020, which described and annexed records contained within Ms Sa’Adat Khan’s prison file.
(e) The affidavit of Timeka Kennedy, Detective Senior Constable of the Australian Federal Police, sworn 11 August 2022, which annexed a copy of the transcript of the record of interview with Ms Sa’Adat Khan dated 23 January 2018, correspondence between Ms Sa’Adat Khan and Ms Momena Shoma and a transcript of an intercepted telephone call between Ms Sa’Adat Khan and Mr Harun Causevic that took place on 23 January 2018.
(f) The affidavit of James Dalton, Senior Constable of the Australian Federal Police, sworn 19 August 2022, which annexed material, including messages through the ‘KiK’ messenger application, between Ms Maraym Bint Shafiq, an associate of Ms Sa’Adat Khan’s during the period of her offending, and Ms Sa’Adat Khan.
(g) The affidavit of Troy Kaizik, Director in the Australian Passport Office of the Department of Foreign Affairs, sworn 5 August 2022, which established that persons who have corresponded with Ms Sa’Adat Khan in prison have had their passports cancelled on the basis that if an Australian passport were issued to that person, they would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
(h) The affidavit of Simone O’Mahony, Detective Superintendent with the NSW Joint Counter Terrorism Team within the Australian Federal Police (AFP), affirmed 21 August 2022, which explained the role of Islamic State in Australia, how most of the proposed ESO conditions would be supervised or monitored by the AFP, and why those conditions are necessary, appropriate and adapted to the risk posed by Ms Sa’Adat Khan for the purpose of s 105A.7A(1)(c).
(i) The affidavit of Simon Newnham, Attorney-General’s Department, affirmed on 20 August 2022, which exhibited the proposed ESO conditions and explained how the remainder of the proposed ESO conditions would be supervised or monitored by a case manager within his Department, and why those conditions are necessary, appropriate and adapted to the risk posed by Ms Sa’Adat Khan for the purpose of s 105A.7A(1)(c).
The plaintiff also provided the court with:
(a) The material and statement of facts that the Minister is aware of that would reasonably be regarded as supporting a finding that the order should not be made, as required by s 105A.5(3)(aa) of the Code.
(b) A statement of any facts of which the plaintiff is aware relating to why the proposed ESO conditions should not be imposed on Ms Sa’Adat Khan, as required by s 105A.5(3)(d)(iii) of the Code.
(c) Three expert reports of registered psychologist Pamela Matthews, dated 7 September 2020, 28 February 20225 and 7 March 2022.
(d) Two expert reports of accredited social worker Peta Maree Lowe, dated 8 March 2022 and 13 March 2022, each of which assess the risk of Ms Sa’Adat Khan committing an act of violent extremism to be low/moderate.
The offending
The defendant pleaded guilty to providing support or resources to Islamic State, by facilitating the entry of an 18 year old man into Syria to join Islamic State, including advising the young man what he needed to do to enter Syria and to join Islamic State and by communicating with two other intermediaries to facilitate that outcome.
In summary, the material facts relied on for the purposes of sentencing, which were not disputed by Ms Sa’Adat Khan, were:[3]
[3]Summarised from the Prosecution Opening.
(a) By October 2014, Ms Sa’Adat Khan had become interested in Islamic State and the ideology of violent jihad. That interest continued to 24 February 2020, when her iPhone X was seized by police during a search of her family home.
(b) In 2015 [redacted], an American citizen, met Ms Sa’Adat Khan online through a Swedish woman originally from Afghanistan whom he knew as [redacted]. [redacted] had agreed to marry [redacted], and she was a friend of Ms Sa’Adat Khan. Ms Sa’Adat Khan told [redacted] that her name was Ziesha Khan. During their communications, Ms Sa’Adat Khan used a variety of different aliases including Ghuraba and variations of that name.
(c) Ms Sa’Adat Khan told [redacted] that she was ‘pro-dawla’, meaning that she was a supporter of Islamic State. In 2016, [redacted] wished to travel to Syria to fight on behalf of Islamic State. He attempted to contact [redacted], who he believed could assist him. Ms Sa’Adat Khan responded to his messages and told him that she and [redacted] were sharing an account.
(d) Ms Sa’Adat Khan provided support to Islamic State by, first, advising [redacted] concerning what he needed to do in order to enter Syria and join Islamic State and, second, by communicating with two persons, [redacted] and ‘User333’, to facilitate [redacted]’s entry to Syria and involvement with Islamic State.
(e) Ms Sa’Adat Khan told [redacted], when he expressed frustration, that he must ‘concentrate on going there and returning to Allah as a green bird, nothing else matter.’ This reference to returning to Allah as a ‘green bird’ was understood between them to be a reference to [redacted] achieving martyrdom by being killed while engaged in violent jihad. Ms Sa’Adat Khan also told [redacted] that she ‘Help people who wanna make hij [‘hijra’ – migration in the cause of Allah] and gain ajr [divine reward] and be a irhabi [terrorist]’.
(f) Ms Sa’Adat Khan continued to communicate with [redacted] and with User333 on behalf of [redacted]. On 21 June 2016, [redacted] purchased a one way ticket to travel from New York to Morocco. He was arrested by FBI agents as he boarded a bus to New York.
(g) On 23 January 2018, police executed a warrant at Ms Sa’Adat Khan’s residence. They seized an iPhone 6S, an iPod Touch and an Acer Laptop. The data from these items contained evidence of Ms Sa’Adat Khan’s interest in Islamic State, her communications with [redacted], and her use of aliases. Ms Sa’Adat Khan was interviewed at this time but not charged.
(h) On 25 February 2020, police again arrested Ms Sa’Adat Khan and executed a warrant at her residence. The police had with them an order under s 3LA(2) of the Crimes Act 1914 (Cth) which required Ms Sa’Adat Khan to provide them with any information or assistance that she was able to access data on any device in her possession or control. Police told Ms Sa’Adat Khan about the order.
(i) Police seized Ms Sa’Adat Khan’s iPhone X during the search. Ms Sa’Adat Khan told the police it was her mother’s phone. Data later extracted from the phone showed that in fact it was Ms Sa’Adat Khan’s phone and that she had used it to communicate with [redacted]. Later that day, Ms Sa’Adat Khan was asked to provide the password to the phone. She refused to do so and repeated that it was her mother’s phone.
(j) Ms Sa’Adat Khan ultimately pleaded guilty to providing support to an organisation knowing it is a terrorist organisation, contrary to s 102.7(1) of the Code (in relation to her communications with [redacted] between 15 June 2016 and 20 June 2016) and to contravening a requirement of an order made under s 3LA(2) of the Crimes Act 1914 (Cth).
Interim supervision orders
For the immediate purpose of this application, the relevant statutory provisions are:
105A.9A Interim supervision orders
(1)The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim supervision order in relation to a terrorist offender if an application has been made to the Court for an extended supervision order in relation to the offender.
…
Making an interim supervision order
(4)The Court may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:
(a)either:
(i)an application is made in accordance with subsection (1) for an interim supervision order in relation to a terrorist offender; or
(ii)an application is made in accordance with section 105A.9 for an interim detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.9(2)(b); and
(b)the Court is satisfied that any of the following relating to the offender will end before the application for the continuing detention order or extended supervision order has been determined:
(i)a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a);
(ii)the period for which a post-sentence order or interim post-sentence order is in force;
(iii)the period for which the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) is in force; and
(c)the Court is satisfied that there are reasonable grounds for considering that an extended supervision order will be made in relation to the offender; and
(d)the Court is satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order under this subsection is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.
(5)For the purposes of paragraph (4)(d), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).
Effect of an interim supervision order
(6)The effect of an interim supervision order is to impose on the offender, for the period the order is in force, conditions contravention of which may be an offence.
Content of order
(7)The order must specify:
(a)that the Court is satisfied of the matters mentioned in paragraphs (4)(b) to (d); and
(b)the matters mentioned in paragraphs 105A.7A(4)(b), (c) and (e); and
(c)the period during which the order is in force, which must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the 105A.1 Object.
105A.1 Object
The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to:
(a) a continuing detention order; or
(b)an extended supervision order.
Consideration of the plaintiff’s proof
I am satisfied that the three preconditions specified in s 105A.9A(1) are established.
First, the plaintiff is ‘the AFP Minister’, being the minister administering the Australian Federal Police Act 1979 (Cth).[4]
[4]Code s 101.1.
Secondly, the defendant is a ‘terrorist offender’ by reference to three statutory criteria.[5]
[5]Code ss 105A.2, 105A.3(1).
(a) She has been convicted of a serious Part 5.3 offence - providing support to an organisation knowing it to be a terrorist organisation contrary to s 102.7(1) of the Code. This offence carries a maximum penalty of 25 years imprisonment and is a ‘serious Part 5.3 offence’ within the meaning of s 105A.2 of the Code.
(b) The defendant is detained in custody and serving a sentence of imprisonment for that offence. She is a person in relation to whom a post-sentence order may be made.[6] The defendant was, when I made the ISO, detained in custody in the Dame Phyllis Frost Centre.
(c) The defendant will be 24 years old when her sentence of imprisonment ends.[7]
[6]Code s 105A.3A(1)(b).
[7]Code s 105A.3(1)(c).
Thirdly, the plaintiff, as AFP Minister, has applied for an ESO in accordance with s 105A.5 of the Code. This application was made on 19 August 2022 within the period limited by s 105A.5(2)(a) of the Code. Section 105A.5(3) identifies matters to be included in the application and I am satisfied that each of the reports and documents required by the section are in evidence. The application was served on the defendant’s legal representative on 19 August 2022 and on the defendant personally on 22 August 2022.[8]
[8]Code s 105A.14A.
Turning next to the requirements of s 105A.9A(4)(b), the plaintiff has demonstrated that the defendant’s sentence of imprisonment will end before the application for the ESO in relation to her can be determined. I accept that this follows as a consequence of the confluence of unusual circumstances. On the one hand, once pre-sentence detention was taken into account as time served, there was a relatively short period remaining when the defendant was no longer on remand for the plaintiff to prepare this application. Although the defendant was justifiably critical that the plaintiff was dilatory, I accepted the plaintiff’s explanation. The consequence for the defendant, as she accepted, was that she must be subject to an ISO to allow time for proper preparation for the contested hearing of the application for an ESO. For the same reasons why I consider an ISO to be appropriate in the circumstances, I was not persuaded that the defendant was subjected to any material prejudice in this respect. None was asserted. Moreover, the legal practitioners have agreed on a timetable and other matters to enable the determination of the application at a hearing to commence on 7 November 2022. I have listed the application for trial on that date.
For the reasons that follow, I am satisfied that there are reasonable grounds for considering that an ESO will be made in relation to the defendant. That being the key issue for resolution on this application, it is appropriate to begin by examining the statutory language expressing the applicable test.
Construction of s 105A.9A(4)(c)&(d)
The first requirement is the court must be ‘satisfied’. This requires that the applicant affirmatively persuade the court of the existence of reasonable grounds. The court is acting judicially, not administratively. A discretion is not being exercised. Rather, a state of affairs must exist, or preconditions be satisfied, to enliven the statutory jurisdiction to make an ESO. The court will be persuaded if it is more probable than not that the necessary state of affairs exists.
‘Reasonable grounds’ requires that the applicant prove sufficient facts to permit the court, on objective assessment, to ‘consider’ that something will happen. The court must be satisfied that there are reasonable grounds for that state of mind.[9] The test is wholly objective. The court must evaluate the evidence to determine whether the known facts, circumstances and considerations that may bear rationally on the issue in question permit the court to be of that state of mind.[10]
[9]George v Rockett (1990) 170 CLR 104, 112.
[10]Prior v Mole (2017) 261 CLR 265, 278 [27], 292 [73] and 298 [98].
What then is the state of mind of ‘considering’? To consider is to think carefully about something, usually before making a decision. It connotes the notion of taking something into account, usually referring to particular facts or circumstances relevant to the decision. Here it is used in the sense of having formed a view that a consequence (a decision) will follow on thinking carefully about the reasonable grounds. This state of mind can be likened to a belief.[11] It is a state of mind that need not be shown to be certain. What the High Court of Australia said in George v Rockett[12] in a related context is apposite. It is ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition.’ That state of mind may involve an element of ‘surmise or conjecture’.[13]
[11]ING Funds Management v ANZ Nominees (2009) 228 FLR 444, 461-2 [102].
[12](1990) 170 CLR 104.
[13]Ibid 116.
The court does not need to conclude that a decision can now be made effectively determining the application.[14] It is sufficient that the court is satisfied that, on the material before it, if remaining uncontradicted at trial, the court considers that the decision will be made. This is akin to forming a reasonable belief, after due consideration of the material, that the application can succeed.[15]
[14]Director of Public Prosecutions (WA) v Free [2010] WASC 255, [10].
[15]Ibid [10]-[13].
The decision under consideration is whether an ESO will be made. This requires that the court be satisfied that the facts and circumstances established on the evidence presently before the court are sufficient for a reasonable person to be inclined to accept, rather than reject, the proposition that an ESO will be made in relation to the defendant, notwithstanding that such evidence may later be challenged, contradicted, or otherwise contested. This question involves consideration of the statutory requirements for an ESO to be made.
Requirements for an ESO
Those requirements are set out in s 105A.7A.
Making an extended supervision order
(1)A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:
(a)any of the following applies:
(i)an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;
(ii)an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender, and the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) (or both);
(iii)the Court has reviewed under section 105A.12 a continuing detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.12(4)(a); and
(b)after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and
(c)the Court is satisfied on the balance of probabilities that:
(i)each of the conditions; and
(ii)the combined effect of all of the conditions;
to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.
As with an ISO, the statute provides in respect of an ESO that on the assessment of whether conditions imposed on the offender during the period of supervision meet the statutory requirement, the court must take into account, as a paramount consideration in all cases, the object of the Division (set out above).
Whether an ESO will be made in relation to the defendant will ultimately involve the court making an assessment of the evidence adduced by the plaintiff to determine whether he has discharged the onus of proving his entitlement to a post-sentence order that the defendant be subject to supervision.
The defendant did not take issue with the plaintiff’s submissions that reasonable grounds appear in the evidence tendered on this application, reserving her right to address all issues fully at the final hearing. Accordingly what follows is directed to the question of whether the uncontested evidence tendered by the plaintiff disclosed ‘reasonable grounds for considering’. The utility of these observations is necessarily limited to this application.
Unacceptable risk
The concept of unacceptable risk of committing a serious Part 5.3 offence is a flexible concept calibrated to the nature and degree of the risk and adaptive to the circumstances of each particular case.[16] The critical assessment is the combination of the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. The gravity of the consequences will ordinarily be the critical factor in the assessment.
[16]Minister for Home Affairs v Benbrika (No 2) [2020] VSC 888 (Benbrika (No 2)); Nigro v Secretary to the Department of Justice (2013) 41 VR 359.
The statutory text, in speaking of ‘a serious Part 5.3 offence’, does not link the concept of unacceptable risk to any specific individual offence. It is sufficient to identify the risk as that of committing one or more serious Part 5.3 offences.[17]
[17]Benbrika v Minister for Home Affairs [2021] VSCA 303, [79].
In this context, the evidence of Dr Dewson will be that the most likely manifestation of the defendant’s risk is of offending in a similar way to the index offending, namely by providing support to a terrorist organisation in contravention of s 102.7 of the Code.
The statute directs that in deciding whether the defendant poses an unacceptable risk of committing a serious Part 5.3 offence, the court must have regard to the matters set out in s 105A.6B. That section provides:
Matters a Court must have regard to in making a post-sentence order
(1)In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:
(a) the object of this Division;
(b)any report of an assessment received from a relevant expert, and the level of the offender’s participation in the assessment, under:
(i) section 105A.6; or
(ii) section 105A.18D;
(c)the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender’s participation in any such assessment;
(d)any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i)the relevant State or Territory corrective services; or
(ii)any other person or body who is competent to assess that extent;
(e)any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation in any such programs;
(f)the level of the offender’s compliance with any obligations to which the offender is or has been subject while:
(i)on release on parole for any offence referred to in paragraph 105A.3(1)(a); or
(ii)subject to a post-sentence order, interim post-sentence order or control order;
(g)the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);
(h)the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;
(ha)whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order;
(i)any other information as to the risk of the offender committing a serious Part 5.3 offence.
(2)Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
These matters are addressed by the plaintiff’s evidence. I do not propose to analyse this material in these reasons ahead of a contest. It is plain that the defendant has a case to answer and must challenge the plaintiff’s material and the interpretation of it. Having regard to the statutory context I am required to have regard to the assessment of Dr Dewson.[18] Dr Dewson’s report addresses the issues identified in s 105A.6(7).
[18]Code s 105A.6B(1)(b).
After describing the material with which she was instructed and the process that she adopted to prepare her reports, Dr Dewson concluded that the defendant’s risk of committing a terrorism offence was low-moderate. In particular she assessed the defendant as highly susceptible to influence, control and indoctrination in circumstances where there was little or no evidence of change or improvement in the factors that formed the basis for this assessment.
The most likely risk scenario, should the defendant reoffend, was in a support role for others wanting to engage in terrorism offences, not dissimilar to the index offence. The likelihood of the defendant personally engaging in an act of violence was low.
This assessment emphasised that ‘it will be important for her to be supported and supervised in the community’, and her assessment is that an ESO would allow the defendant to transition into the community with support from community corrections, whilst mitigating risks through community supervision, support and Community Integration Support Program (CISP) intervention. Dr Dewson observed that the defendant is yet to engage in criminogenic treatment and her mental health remains unmanaged. Relevantly, there were many ways in which the identified unacceptable risk can be mitigated.
The defendant’s risk of general recidivism was moderate, by reason of the barriers she has encountered with education and employment, family problems, and the fact that she is socially isolated with few prosocial peers.
While risk assessment is time sensitive, two earlier reports by other relevant experts can be noted. Ms Peta Lowe concluded that the defendant’s risk was in the low/moderate range while Ms Pamela Matthews reported that the defendant’s risk (of carrying out a lone act, a terrorist act) was low.
It may be significant that the expert assessment of risk is indisputably in the low to low/moderate range. It is possible that such an assessment may raise an issue whether an ESO is reasonably necessary. The defendant foreshadowed such a submission, but it was not developed and I note that the NSW Court of Appeal observed in NSW v Naaman (No 2)[19] that even if there is a slim probability of the offender committing a terrorist act, that risk may be unacceptable having regard to the consequence of such an act.[20] These are matters for careful assessment at the trial.
[19](2018) 276 A Crim R 30, 37-8 [29].
[20]Cited in Benbrika (No 2) [2020] VSC 888, [405]. See also Minister for Home Affairs v Benbrika (first review) [2022] VSC 169, [48]-[52]; New South Wales v Haidar [2020] NSWSC 38, [10]; New South Wales v Barez (Final) [2020] NSWSC 555, [236(11)]; New South Wales v Elmir (Final) [2019] NSWSC 1867, [151]; New South Wales v Barez (Preliminary) [2019] NSWSC 1589, [82]; New South Wales v Mathers (No 2) [2019] NSWSC 473, [47]; New South Wales v White [2018] NSWSC 1943, [150]; New South Wales v White [2018] NSWSC 1064, [30]; New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008, [26]; New South Wales v Ceissman [2018] NSWSC 508, [26]-[32].
For present purposes, on the basis of the uncontested evidence before me, I accept the plaintiff’s submission that I should find the risk to be unacceptable, but I do so on the basis that the issue may be fully argued at trial.
The plaintiff’s material addressed other relevant matters.
The defendant can reasonably and practicably be managed in the community. Such management will not be under the control of Victorian Corrective Services. It will be managed and controlled by the plaintiff and the AFP.
The defendant in custody voluntary engaged with Corrections Victoria psychologists and participated in the CISP assessment. Presently, the material suggests that continued engagement with such services is critical to mitigating her risk.
The defendant has no history of prior convictions or findings of guilt.
I have considered the views of the sentencing court. The sentencing judge made a number of relevant findings. His Honour stated:
(a) There was evidence that the defendant had continued to adhere to Islamic State until August 2020.
(b) The defendant’s radicalisation appears to have originated during a period of relative isolation from her peers after leaving school, during which time the defendant found solace in relationships made online.
(c) The subject of the offence was inherently very serious.
(d) The defendant’s criminality fell towards the ‘low end of the scale’.
The sentencing judge was not able to find that the defendant was ‘genuinely remorseful’ but he accepted as significant her plea of guilty and as encouraging her expressions of contrition to Ms Matthews and Ms Lowe. He noted the risk assessment to which I have already referred. However, the sentencing judge found no evidence that would permit him to conclude the defendant had renounced her adherence to violent jihad and was well on the path to deradicalisation.
The plaintiff further submitted that there were a number of other matters relevant to the assessment of risk. There was evidence of the defendant’s continuing interests in extremist ideology from at least 2014 until 2020. Secondly, there was a relationship that the defendant developed with another inmate while they were both in custody that, he submitted, demonstrated both persistence in expressing support for extremist beliefs and the defendant’s continuing vulnerability to extremist influence. Thirdly, there was evidence that a number of adherents to extremist ideology, or persons about whom there are real security concerns, initiated contact with the defendant during her time in custody. These matters were relevant because the risk assessment established her susceptibility to influence, control, and indoctrination.
On the other hand, it is significant that the defendant’s reaction to a serious assault in prison on another prisoner by the inmate with whom she had interacted appeared to demonstrate an abhorrence of immediate and real physical violence.
The proposed conditions
I must also be satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.
Reasonably necessary, reasonably appropriate and adapted
I have discussed the requirement to be satisfied that there are ‘reasonable grounds for considering’, the first part of this statutory test. What must now be assessed is whether each condition is reasonably necessary. This question requires an evaluation of whether the condition needs to be imposed, whether it is essential for achieving the relevant purpose.
I must also determine whether there are reasonable grounds to consider each condition is reasonably appropriate and adapted for achieving the statutory purpose. This requires that each condition is, objectively assessed, suitable or proper in the circumstance to achieve the statutory purpose. The requirement that each condition be ‘adapted’ requires that I assess the specific mechanism by which the proposed condition is best fashioned or moulded to achieve the statutory purpose. The statutory assessment involves the synthesis of various incommensurable considerations in order to reach the required conclusion.
Although there is no judicial guidance on the application of this particular test, in Thomas v Mowbray,[21] the High Court considered a test framed in materially identical language in the context of assessing the constitutional validity of interim control orders under s 104.4 of the Code. Gleeson CJ stated that:
The court has to consider whether the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires.[22]
[21](2007) 233 CLR 307.
[22]Ibid 332 [22].
In the case of an ISO, the issue of reasonable protection of the public is framed in terms of the paramount consideration, the objective of protecting the community from an unacceptable risk that terrorist offenders may commit further serious Part 5.3 offences.
Gummow and Crennan JJ stated:
Judicial techniques must then be applied to each proposed obligation, prohibition and restriction. Section 104.4(1) requires in para (d) that each of these be measured against what is ‘reasonably necessary’ and also against what is ‘reasonably appropriate and adapted’ for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a ‘balancing exercise’ (s 104.4(2)).
The High Court in Vella v Commissioner of Police (NSW), described a similar requirement for balancing incommensurables when considering a serious crime prevention order[23] in these terms:
The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant’s liberty, including the scope of the order and the length of its term. In balancing these matters, if there was a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate.[24]
[23]Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 5(1).
[24](2019) 269 CLR 219, 244 [51] (Vella).
The High Court added that no relevant distinction could be drawn between the New South Wales legislation there being considered and the regime upheld in Thomas v Mowbray.[25]
[25]Ibid 258 [85].
The plaintiff submitted that I might be further assisted by authorities examining the imposition of condition to address the risk of future offending under the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism High Risk Offenders Act 2017 (NSW). In New South Wales v BP (No 2),[26] Wright J observed:
[26][2019] NSWSC 806.
In the context of cognate provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act), it has been held that the provision corresponding to s 29 of the THRO Act does not require there to be a specific demonstrated connection between the condition and the past offending which is the basis for the order. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which is the basis for the order. There may be a sufficient connection if, for example:
1.the condition addresses a means of controlling possible risk factors related to the type of offending in question;
2.the condition is designed to avoid situations where the offender’s rehabilitation or reintegration into the community might be compromised; or
3.the condition does not directly relate to the offender's risk but promotes the efficacy of the order containing other conditions which do.
This approach is equally appropriate when considering the imposition of conditions under the THRO Act. Similarly, I accept that conditions ought not be imposed under an ISO if they are unjustifiably onerous or simply punitive.[27]
[27]Ibid [11]-[12] (citations omitted).
In the context of the authorities, I am considerably assisted by the three factors identified by Wright J in the appropriate application of the statutory test under s 105A.9A and, with those factors in mind, I now turn to consider whether each of the conditions sought by the plaintiff is reasonably necessary and reasonably appropriate and adapted to the statutory protective purpose.
Assessment of conditions
The conditions of the ISO that I made may broadly be categorised as:
(a) conditions directed to therapeutic intervention; and
(b) conditions directed to limiting the opportunities for the defendant to be influenced by extremists and her ability to access or produce extremist materials.
In the former category, condition 1 facilitates case management directed to the defendant’s reintegration into the community. Condition 2 facilitates participation in psychological assessment and treatment to be paid for by the Commonwealth. Condition 3 requires the defendant to complete an assessment for participation in a tailored violent extremism disengagement and rehabilitation program. In this context, the defendant has already been assessed and referred to CISP for inclusion in its deradicalisation program. Condition 12 governs where the defendant must reside.
In his written submissions, the plaintiff addressed each of these conditions[28] and the defendant did not submit that these conditions were in any respect not reasonably necessary or not reasonably appropriate and adapted to achieving the statutory purpose in the context of an interim order. It is not necessary to set out all the references to the evidence in support of my conclusion that these conditions, considered individually, satisfy the statutory test. However, it is appropriate to record that the defendant explicitly indicated her willingness to comply with conditions 2 and 3 and took no objection to conditions 1 and 12. I am satisfied the defendant’s compliance with each of these conditions is likely to mitigate risk and each condition is both reasonably necessary and reasonably appropriate and adapted to achieving the statutory purpose.
[28]Save for condition 12 which was required by the court.
Conditions 4 - 11 inclusive fall in the latter category. They are directed to limiting the opportunities for the defendant to be influenced by extremists and limiting her ability to access or produce extremist materials. In this context, I accept the expert opinion that the defendant is susceptible to influence, control and indoctrination and that this susceptibility is a key risk factor.
Conditions 9 and 10 are, by reference to the evidence on this application, necessary for achieving the statutory purpose. Condition 9 requires that the defendant not produce, distribute, access, or possess prohibited documents with an extremist content. The condition is adapted to exclude inadvertent breach through interacting with mainstream media. It is clearly essential that the defendant not possess, produce or distribute violent extremist material.
Similarly, to mitigate risk it is necessary to preclude the defendant from associating with persons in the community who adhere to extremist views or produce extremist material, to which condition 10 is directed. The evidence on this application provides reasonable grounds for considering, particularly in the context of the defendant’s susceptibility to influence and indoctrination, that inappropriate associations with other persons, such as the one developed with a fellow inmate whilst in custody, might develop. This condition admits of the possibility that the AFP Superintendent may provide approval in writing to associations with nominated persons in certain circumstances, for example to enable the defendant to retain appropriate friendships made in custody or to contact relatives living in Afghanistan.
The purpose of the remaining conditions is to enable the defendant’s communications and online activities to be monitored. Condition 4 governs the supply, use and monitoring of a permitted mobile phone. Condition 5 controls access to computers, tablets and other devices. Condition 6 restricts access to internet services, Condition 7 restricts access to fixed or landline telephone services, public telephones and other communication devices. Condition 8 controls the circumstances in which computer programs and platforms may be accessed. Condition 11 governs email. It is only if appropriate and effective monitoring can be achieved that the court can be satisfied that the statutory purpose is being properly pursued. The defendant’s past offending utilised digital communications and online activity and I am in no doubt that enabling proper monitoring of the defendant’s activities in this context is necessary.
It is also clear that use of a mobile phone, internet services through a computer, tablet or other device and access to various applications or computer programs must be permitted to some extent. The conditions of the ISO enable the defendant to have access to such devices and to certain applications or programs. The expert evidence identified that the defendant’s rehabilitation or reintegration into the community is likely to be compromised by a wholesale ban on such access. These conditions will permit the defendant to engage in communication with others by the means commonly employed by her peers, to participate in educational and employment opportunities, and to communicate with health practitioners, therapists and her case manager. The conditions also enable strict inspection and monitoring of her use of these devices in an effective way.
Specifically, although the plaintiff sought to preclude access to all social media platforms such as WhatsApp, TikTok, Instagram and Facebook, I consider that these restrictions went beyond what was reasonably necessary and appropriate and adapted to address the risk. Having particular regard to the limited period of operation of this ISO, I am satisfied that the defendant should be permitted access to WhatsApp, TikTok and Instagram, should she choose to use such platforms. Such use will be subject to specific requirements to enable monitoring and supervision.
The conditions provide for the AFP Superintendent to give written consent to access additional platforms, for example Facebook, and such an application can be assessed objectively if and when made. It is not realistic to seek to achieve a goal of community reintegration for a young person in the circumstances of the defendant, while denying all access to social media. I am satisfied that a carefully controlled and supervised reintroduction to social media and digital communications is necessary and appropriately achievable under the conditions that I have approved. That is so because the plaintiff can monitor and supervise the defendant’s use of social media to instruct and empower proper access to an essential and unavoidable aspect of contemporary life.
Finally, having considered each of these conditions individually, I also had regard to the cumulative operation of the order as a collective set of conditions and from that perspective I remain satisfied that the ISO is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the defendant committing a serious Part 5.3 offence.
An ISO must specify the period during which it is enforced and that period cannot exceed 28 days. The parties are agreed that the plaintiff’s application for an ESO be listed for trial on 7 November 2022. Although that time is outside the period during which this ISO can operate, as it must end on 22 September 2022, further ISOs can be made, provided the total period spanned by ISOs does not exceed 3 months save in exceptional circumstances.[29]
[29]Code s 105A.9.A(8).
Other matters
Undertakings
Two further matters may be mentioned. Because breach of the conditions of an ISO may constitute a serious offence punishable by a term of up to 5 years imprisonment, I considered it important to ensure that the defendant understands what is expected of her and the consequences of non-compliance. I could not easily undertake that task over a AV link. I asked of the parties and each of them undertook to the court to explain the effect of the order and the conditions it imposes to the defendant.
Confidentiality and suppression
In the course of preparing this application, the plaintiff sought, and received, documents from Corrections Victoria from the file maintained about the defendant as a prisoner. Some of this information raised particular concerns and the information disclosed and the concerns were identified in the second affidavit of Jennifer Ann Hosking sworn 22 August 2022. It is not appropriate to describe the content of this information in these reasons. I will refer to it as the sensitive material.
The Secretary to the Department of Justice and Community Safety (the Secretary) gave notice that she would on the first return of the plaintiff’s summons seek a suppression order over the sensitive material. The notice, given on the day before the hearing, was short served.[30] I was satisfied that there was good reason for the notice not being given within the required time period. I was also satisfied that it was in the interests of justice that the court hear the application without proper notice having been given to relevant news media organisations because whether an ISO was to be made had to be determined before the defendant’s release from custody.
[30]Open Courts Act 2013 (Vic) s 10.
As noted earlier, there were a number of reasons why this application was not made at an earlier time. The defendant had substantially completed her sentence through time served on remand, and, as discussed above, I accept that there were other constraints that contributed to the plaintiff finding himself in unusual circumstances.
I determined to limit the operation of a suppression order until further order or the determination of the proceeding, enabling any aggrieved media organisation to exercise liberty to apply or to challenge the suppression order at the trial of the application on 7 November 2022. The Secretary intends to renew her application at that time.
The parties did not oppose, indeed supported, the making of a suppression order. They agreed with the Secretary that the extent of suppression necessary could be achieved by a process of redaction. That approach enables the essence of the application to be heard in open court and reported in the media.
Sensitive information collected by Corrections Victoria of the kind that was disclosed to the plaintiff is not ordinarily disclosed. I accept that it is likely to be highly distressing to the defendant and likely to undermine therapeutic and rehabilitative relationships to be established with or maintained by future clinicians if the confidentiality of consultations with Corrections Victoria clinicians is not maintained. More broadly, disclosure that negatively impacts on the rehabilitation prospects of a prisoner can be prejudicial to community safety. Further, the unexpected disclosure by Corrections Victoria of the sensitive material could be detrimental to the defendant’s relationships with others generally, including those on whom her rehabilitation may depend. Were it to become known that such information of this sort might be released by Corrections Victoria, it is reasonable to expect that other prisoners would be less inclined to share sensitive information and that such a reluctance could reduce the capacity for offence-specific treatment and risk assessment generally.
On the other hand, the gravamen of the issues and the evidence in support will be given in open court and be readily comprehendible, meaning there is little prospect of any material injury to the open justice principle. The balance of these considerations favoured making the order sought.
I concluded that suppression of the sensitive material was appropriate on the grounds identified in s 18(1)(a), (c), and (d) of the Open Courts Act 2013 (Vic) on the grounds more fully expressed in Ms Hockings’ affidavit.
It became clear during argument that the sensitive material had been distributed to a number of persons involved in this application, including expert witnesses, other police and legal practitioners. The extent of disclosure necessitated that suppression be defined by subject matter rather than particular passages in affidavits or documents to be redacted. For these reasons, I made an order in those terms and also directed that none of the affidavits or other material, noted earlier in these reasons, will be made available to any person, except the parties to this proceeding, until redactions have been made to ensure compliance with the suppression order.
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