Booth v Thorne

Case [2020] FCA 445

FEDERAL COURT OF AUSTRALIA

Booth v Thorne [2020] FCA 445

File number: VID 126 of 2020
Judge: ANASTASSIOU J
Date of judgment: 6 March 2020
Catchwords: CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether methodology for risk assessment reliable – whether controls reasonably necessary and reasonably appropriate and adapted – application granted
Legislation:

Criminal CodeAct 1995 (Cth), ss 11.2A, 104.1, 104.4, and 119.4

Federal Court of Australia Act 1976 (Cth), s 37AI

Federal Court Rules 2011, r 41.06
Cases cited:

Booth v Kaya [2020] FCA 25

Briginshaw v Briginshaw (1938) 60 CLR 336

McCartney v EB (2019) 263 FCR 170

R v Cerantonio & Ors [2019] VSC 284

Thomas v Mowbray (2007) 233 CLR 307

Wong v The Queen (2001) 207 CLR 584

Date of hearing: 4 and 6 March 2020
Registry: Victoria
Division: General Division
National Practice Area: Federal Crime and Related Proceedings
Category: Catchwords
Number of paragraphs: 20
Counsel for the Applicant: Ms C Fitzgerald
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr S Moglia
Solicitor for the Respondent: Doogue + George

ORDERS

VID 126 of 2020
BETWEEN:

SANDRA BOOTH

Applicant
AND:

SHAYDEN JAMIL THORNE

Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

6 MARCH 2020

THE COURT ORDERS THAT:

1.Pursuant to section 37AI of the Federal Court of Australia Act 1976 (Cth), until 4:15 pm on 13 March 2020, or until further order, certain personal information relating to:

(a)the address and/or whereabouts and contact details of the respondent; and

(b)the identity, address and/or whereabouts and contact details of other persons

referred to in Annexure A and Annexure B of the Schedule to these orders not be published or disclosed.

Interim control order

2.The Court makes an interim control order pursuant to s 104.4 of the Criminal Code (Cth) in the terms set out in the Schedule to these orders.

Confirmation hearing

3.The hearing of any application to confirm, vary or revoke these orders be fixed on 4 June 2020 at 10.15am.

Endorsement pursuant to Rule 41.06

To: Shayden Thorne

You will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or

(b)for an order that requires you not to do an act or thing - you disobey the order.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

VID 126 of 2020
BETWEEN:

SANDRA BOOTH

Applicant
AND:

SHAYDEN JAMIL THORNE

Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

10 MARCH 2020

THE COURT ORDERS THAT:

1.The schedule to the orders made on 6 March 2020 be amended pursuant to rule 39.05 of the Federal Court Rules by adding in respect of Control 3 the Annexures attached to this order.

2.The applicant personally serve this order…

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Details
AGLC
Booth v Thorne [2020] FCA 445
Case
[2020] FCA 445
Decision Date

CaseChat Overview and Summary

The case of Booth v Thorne involved an application for interim control orders under section 104.4 of the Criminal Code Act 1995 (Cth). The applicant sought the orders in relation to the respondent, who was about to be released from prison. The application was made on short notice, filed on 27 February 2020, due to the urgency caused by the respondent's imminent release. The background of the case includes the respondent being one of the co-offenders in a group that conspired to overthrow the government of the Southern Philippines by force or violence. The applicant argued that the respondent posed a risk of reoffending, necessitating the imposition of a control order to prevent further terrorist activities.

The primary legal issues before the court were whether the methodology used for the risk assessment was reliable and whether the proposed controls were reasonably necessary, reasonably appropriate, and adapted to achieve the objectives of the Act. The respondent argued that the risk assessment methodology was unreliable and that the risk posed by the respondent was insufficient to justify the imposition of a control order. The court needed to determine if the applicant had established a sufficient risk of reoffending based on the evidence presented.

The court found that the applicant's risk assessment, based on multiple factors including a Violent Extremism Risk Assessment and the applicant's extensive experience in counter-terrorism operations, provided a rational basis for concluding that the respondent posed a risk of reoffending. The court was satisfied that the terms of the control order were reasonably necessary, reasonably appropriate, and adapted to achieve the objectives of the Act. As a result, the court granted the application and imposed an interim control order on the respondent.

The final orders included amending the schedule of the orders made on 6 March 2020 to include additional annexures and requiring the applicant to personally serve the order on the respondent. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The schedule to the orders made on 6 March 2020 be amended pursuant to rule 39.05 of the Federal Court Rules by adding in respect of Control 3 the Annexures attached to this order.

2. The applicant personally serve this order on the respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This application was brought on extremely short notice, having been filed only on 27 February 2020. Due to the urgency of this application caused by the lateness of the application having regard to the imminent release of the respondent I shall give short ex tempore reasons for the orders I propose to make. Background One of the respondent’s co-offenders was Mr Murat Kaya. The applicant applied for an interim control order in respect of Mr Kaya, whose sentence of imprisonment expired on 23 January 2020. On 22 January 2020 I made orders imposing an interim control order upon Mr Kaya. In Kaya at [7] I extracted the relevant statutory provisions which are also relevant to the present application. My summary at [4]-[6] of the group’s offending in Kaya is equally apposite in the present case: 4.The sentencing remarks of Croucher J provide a detailed narrative of the events and conduct of [Mr Kaya] and his co-offenders [including the respondent]: R v Cerantonio & Ors [2019] VSC 284. In summary, the Crown’s case was that between 22 October 2015 and 10 May 2016, [Mr Kaya] and his co-offenders joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement between [Mr Kaya] and his co-offenders was to enable the Southern Philippines ultimately to be governed by Islamic law, otherwise known as “Sharia law”. The hostile activity that [Mr Kaya] and his co-offenders intended was that one of them, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines.5.By 22 October 2015, neither [Mr Kaya] or any of his co-offenders were able to gain entry to a foreign country or to assist Mr Cerantonio to do so. At different times during 2015 and 2016, a number of the co-offenders, including [Mr Kaya], had sought to leave Australia but were refused departure by the authorities. Eventually, all six of the co-offenders had their Australian passports cancelled. In that context, they agreed to acquire a boat and other necessary equipment to leave Australia in a covert manner to facilitate ultimate entry to the Philippines. An element of their agreement was that only Mr Cerantonio was to be involved in actually encouraging others to attempt to overthrow the government of the Southern Philippines by force or violence. There was no formed plan by Mr Cerantonio as to how the encouragement of others in the Philippines was to occur. The means by which he was to encourage others, and who those others might be, were unknown.6. In the course of his sentencing remarks, Croucher J observed at [91]:First, as I have just intimated, the whole venture was poorly planned and, I fear, foredoomed to failure. Given the ill-suited vessel the group had purchased and their lack of serious boating experience, it is hard to imagine that they would have made it very far past the breakers off the far north of Queensland.The statutory scheme

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As is expressly noted in s 104.4(1)(d) the evidentiary standard the Court must be satisfied of is the balance of probabilities. Proceedings for an interim control order are interlocutory for “all purposes (including for the purpose of section 75 of the Evidence Act 1995)”: s 104.28A(1) of the Code, c.f. confirmation proceedings s 104.28A(2)(a). The applicant accepted that “in relation to the more serious allegations made against the Respondent” the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 apply.Consideration The respondent’s position was essentially that the applicant had not established on the evidence that the respondent presented a sufficient risk of further committing offences related to terrorism to provide a basis for the making of any control order. The respondent contended that the risk assessment methodology employed by the applicant was unreliable, and that when properly considered, the risk posed by the respondent was insufficient to justify the imposition of a control order. I disagree. Based upon the evidence given by the applicant in her affidavit, as well as her oral evidence, there is a rational basis in the evidence for the conclusion that the respondent poses a risk of re-offending that warrants the imposition of a control order to attain the objects of the Code specified in s 104.1. The applicant was challenged in cross-examination essentially as to the bases upon which she determined her risk assessment of the applicant. She gave evidence that her assessment was based upon a variety of factors or inputs, including material prepared by her relevant team, as well as an assessment prepared by Corrections Victoria described as a Violent Extremism Assessment and Recommendation Report. The report was prepared by a doctor applying a methodology entitled Violent Extremism Risk Assessment (VERA-2R). The applicant conceded that she is not directly involved in undertaking risk assessments using the VERA-2R methodology and was unable to give evidence concerning the scientific veracity of this model or its qualities relative to other potential assessment tools. However, from her own knowledge, the applicant was able to say that it is a methodology used in Victoria and other states of Australia and also in the United Kingdom. I am satisfied that for present purposes, insofar as the applicant relied upon the assessment by a doctor, it provides a rational foundation, amongst others, for the applicant’s risk assessment. The applicant’s evidence further indicated that there were a range of factors she took into account in arriving at her risk assessment, including importantly her experience of 20 years as a police officer and her extensive experience in the counter terrorism operations of the AFP. The applicant’s experience is extensive both within Australian as well as through liaison with counter terrorism agencies in other countries, including Indonesia. For these reasons I find that a control order should be made. As I have already noted, the Code requires the terms of the control order, that is to say, the particular constraints to be imposed by the order, must be reasonably necessary and reasonably appropriate and adapted having regard to the paramount objects of the Act set out in s 104.1. I am satisfied that the terms of the control order meet this requirement. I note further that the terms of the control order have been the subject to negotiations between the applicant and the respondent and as a result of those negotiations have effectively been agreed between them.