Attorney-General v Temssah (No 2) - [2024] VSC 328

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GENERAL LIST

S ECI 2024 00807

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
KHALED TEMSSAH	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 April – 3 May 2024 and written submissions filed on 8 May 2024 and 11 June 2024
DATE OF JUDGMENT:	19 June 2024
CASE MAY BE CITED AS:	Attorney-General v Temssah (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 328*

*This is a redacted version of the judgment that was published to the parties on a confidential basis.

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PUBLIC LAW – Application for an extended supervision order (ESO) under the Criminal Code Act 1995 (Cth) – Defendant sentenced to imprisonment for terrorism offences in 2021 – Sentence completed – Whether unacceptable risk of committing serious pt 5.3 offence if released into community unsupervised – Whether the Court is satisfied that each of the conditions to be imposed on the offender by the ESO is reasonably necessary, and reasonably appropriate and adapted for the statutory purpose – ESO granted – Criminal Code Act 1995 (Cth), ss 105A.3, 105A.5, 105A.6B, 105A.7A, 105A.13, 105A.18D – Nigro v Secretary to the Department of Justice [2013] VSCA 213; New South Wales v BP (No 2) [2019] NSWSC 806; R v Ali [2020] VSC 316; Minister for Home Affairs v Benbrika (First review) [2022] VSC 169; Attorney-General v Hadashah Sa’Adat Khan [2022] VSC 507; Attorney-General v Hadashah Sa’adat Khan (No 2) [2022] VSC 687; Benbrika v A-G (Cth) [2024] VSC 265.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Bennett SC with Mr Minson and Ms O’Neil for the plaintiff	Australian Government Solicitor
For the Defendant	Mr Nathwani SC with Ms Clark and Ms Grant	Robinson Gill Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The offending..................................................................................................................................... 4

Legislative scheme: an overview..................................................................................................... 8

Unacceptable risk............................................................................................................................. 10

Legal principles........................................................................................................................... 10
Object of Division 105A: s 105A.6B(1)(a)................................................................................. 13
Assessment by relevant experts: s 105A.6B(1)(b)-(c)............................................................. 18
Dr Andrew Ellis................................................................................................................. 19
Dr Michael Davis............................................................................................................... 27
Discussion........................................................................................................................... 33

Management in the community: s 105A.6B(1)(d)................................................................... 39
Treatment and rehabilitation programs: s 105A.6B(1)(e)...................................................... 41
Community Integration Support Program (CISP)........................................................ 42
Other treatment and rehabilitation programs............................................................... 45

Compliance with ISOs: s 105A.6B(1)(f).................................................................................... 46
Prior convictions and the views of the sentencing court: s 105A.6B(1)(g)-(h)................... 47
Any other information as to risk: s 105A.6B(1)(i)................................................................... 47
Family support................................................................................................................... 47
Alleged counterproductive effects of an ESO............................................................... 48
Perceived grievances......................................................................................................... 51
Mr Temssah’s communication and relationships with other prisoners.................... 52
Content, tone and attitudes expressed by Mr Temssah in prison.............................. 55

Determination: unacceptable risk............................................................................................. 57

Proposed conditions: reasonably necessary, and reasonably appropriate and adapted.... 58

Principles...................................................................................................................................... 58
Proposed conditions................................................................................................................... 61
Duration........................................................................................................................................ 69

ANNEXURE A.................................................................................................................................. 73

HIS HONOUR:

Introduction

On 15 September 2021, Khaled Temssah pleaded guilty to one charge of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity (the offence)[1] contrary to s 119.4(1) of the schedule to the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 328
Decision Date: 19 June 2024

CaseChat Overview and Summary

The applicant, the Attorney-General, sought an extended supervision order (ESO) in relation to a defendant who had completed a sentence for terrorism offences. The defendant had been sentenced in 2021 and had served the full term of imprisonment. The Attorney-General sought an ESO on the basis that the defendant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community unsupervised. The application was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the defendant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community unsupervised, and whether each of the conditions proposed for the ESO was reasonably necessary and appropriate for the statutory purpose. The court considered the evidence presented, including expert assessments and submissions from both parties. It examined the defendant's history, the nature of the offences committed, and the likelihood of reoffending. The court also evaluated the necessity and appropriateness of the proposed conditions of the ESO.

The court found that the defendant indeed posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community unsupervised. It accepted the evidence that the defendant remained radicalised and continued to pose a threat to community safety. The court was satisfied that each of the conditions proposed for the ESO was reasonably necessary and appropriate for the statutory purpose, including restrictions on communication, residence, and associations. The court granted the ESO, emphasising the need to protect the community from potential harm.

The final orders included the imposition of an extended supervision order on the defendant, with specific conditions relating to communication, residence, and associations. The defendant was also subject to regular reporting requirements and monitoring by authorities. The court's decision underscored the importance of balancing the rights of the individual with the need to protect public safety.

Orders