Booth v Thorne (No 2)
[2021] FCA 1349
•9 June 2021
FEDERAL COURT OF AUSTRALIA
Booth v Thorne (No 2) [2021] FCA 1349
File number: VID 76 of 2021 Judgment of: ANASTASSIOU J Date of judgment: 9 June 2021 Date of publication of reasons: 1 November 2021 Catchwords: CRIMINAL LAW – control orders – application for confirmation of interim control order – whether the obligations, prohibitions and restrictions imposed by control order are reasonably necessary and reasonably appropriate and adapted – duration of confirmed control order in dispute – interim control order confirmed for maximum duration of 12 months Legislation: Criminal Code Act 1995 (Cth), ss 104.4, 104.12, 104.12A, 104.14, 104.16 Cases cited: Booth v Thorne [2021] FCA 380 Division: General Division Registry: Victoria National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 20 Date of hearing: 9 June 2021 Counsel for the Applicant: Ms C. Fitzgerald Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The Respondent appeared in person ORDERS
VID 76 of 2021 BETWEEN: SANDRA BOOTH
Applicant
AND: SHAYDEN JAMIL THORNE
Respondent
ORDER MADE BY:
ANASTASSIOU J
DATE OF ORDER:
9 JUNE 2021
THE COURT NOTES THAT:
1.It is satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104(1)(c)(iv) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth)).
2.It is satisfied on the balance of probabilities that the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104(1)(c)(vii) of the Criminal Code).
3.It is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(a)protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code);
(b)preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and
(c)preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code).
THE COURT ORDERS THAT:
1.Pursuant to s 104.14(4) of the Criminal Code, the interim control order made in relation to the respondent on 5 March 2021 is confirmed in accordance with the Annexure to these Orders.
2.The confirmed control order is in force until and including 4 March 2022.
3.The respondent’s lawyer (if any) may attend the Australian Federal Police at 383 Latrobe Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE
1.Control 1
1.1.You are required to reside at <REDACTED> in the State of Western Australia (the specified premises) or other such other premises nominated by you in accordance with Control 1.2.
1.2.If you decide to permanently leave the specified premises, or stay at any premises other than the specified premises for more than 21 consecutive days, you are required to notify the AFP Superintendent of your new address or the address you will be staying at in writing three business days prior to departing the specified premises. If at the time of leaving the specified premises you did not foresee that you would be staying at any premises other than the specified premises for more than 21 consecutive days and did not notify the AFP Superintendent that you would be doing so, you are required to notify the AFP Superintendent as soon as you become aware that you will be staying at any premises other than the specified premises for more than 21 consecutive days.
2.Control 2
2.1.You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:
a.Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:
i. explosives, explosive devices, initiation systems, firing devices or conducted electrical weapons;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack
vii. bombing;
viii. terrorist attack;
ix. Islamic State;
x. propaganda and promotional material for a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and
xi. activities of, or associated with, a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),
unless that material is:
i. published by a ‘constituent body’ of the Australian Press Council;
ii. broadcast on Australian free to air television;
iii. broadcast on Australian pay television;
iv. shown in a commercial movie cinema;
v. broadcast on a free to air or paid streaming service; or
vi. served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
3.Control 3
3.1.You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:
a.Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:
i. explosives, explosive devices, initiation systems, firing devices or conducted electrical weapons;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. Islamic State;
x. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and
xi. activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
b. Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media, or directing any person to collate, edit, produce or distribute documents (including documents in electronic form) or electronic media, relating to:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. Islamic State;
x. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and
xi. activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
4.Control 4
4.1.You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
a.firearms or ammunition within the meaning of s 4 of the Firearms Act 1973 (WA);
b.a ‘prohibited weapon’ within the meaning of s 3 of the Weapons Act 1999 (WA);
c.any quantity of petrol exceeding 4 litres except petrol contained in the petrol tank of a vehicle;
d.any quantity of any chemical which is not consistent with reasonable domestic use;
e.an article or device, not being a firearm, capable of discharging by any means any irritant matter in liquid, powder, gas, chemical form, dense smoke or substance, which is intended by the person having possession of the article or device to injure or menace a person;
f.a detonator;
g.a fuse capable of use with an explosive or a detonator;
h.a knife, in a public place, without reasonable excuse; and
i.anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
5.Control 5
5.1.You are prohibited from communicating or voluntarily associating with:
a.Apart from your brother, Junaid Thorne, any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;
b.any of the following specified individuals:
–Abdul Nacer BENBRIKA (Date of birth: 17 February 1960);
–<REDACTED>, except for the sole purpose of discussing your child or facilitating contact with your child;
–<REDACTED>, except for the sole purpose of discussing your child or facilitating contact with your child;
–Robert CERANTONIO (Date of birth: 28 January 1985);
–Paul DACRE (Date of birth: 6 July 1985);
–Antonino GRANATA (Date of birth: 10 November 1990);
–Kadir KAYA (Date of birth: 13 July 1994);
–Murat KAYA (Date of birth: 14 February 1991)
6.Control 6
6.1.You are prohibited from accessing or using, any mobile telephone device and SIM card other than:
a.a single mobile telephone device and SIM card provided by the AFP; or
b.a single mobile telephone device and SIM card of your choice (the permitted mobile phone).
6.2.If you wish to access or use a mobile telephone device and SIM card provided by the AFP in accordance with Control 6.1a, your access or use is subject to the following conditions:
a.prior to using the permitted mobile phone an AFP Superintendent will provide you with the following information in writing: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected;
b.at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open;
c.you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card provided by the AFP, telecommunication service provider or phone number connected to the permitted mobile phone; and
d.if you change the password for the permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent’s direction, if you are requested to do so by an AFP Superintendent or that police officer.
6.3.If you wish to access or use a mobile telephone device and SIM card of your choice in accordance with Control 6.1b, your access or use is subject to the following conditions:
a.within 24 hours of accessing or using the mobile telephone device and SIM card for the first time, you must advise an AFP Superintendent of the following information: the International Mobile Equipment Identity, the Integrated Circuit Card Identifier for the SIM card you will use, the telecommunications service provider which you will use with the permitted mobile phone and the phone number to which the permitted mobile phone will be connected; and
b.if at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the mobile telephone device phone and SIM card for inspection and open any applications the AFP Superintendent or police officer directs you to open.
7.Control 7
7.1.You are required to consider in good faith participating in a countering violent extremism (CVE) program including counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes per week.
7.2.If you agree to participate in such counselling or education you must advise an AFP Superintendent in writing that you have commenced the counselling or education and provide an AFP Superintendent the name and qualifications of the professional you have engaged.
8.Exemptions requested by you
8.1.You may request that an AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 6.1.
8.2.To request an exemption, you must:
a.submit a written request to an AFP Superintendent which: (i) explains the extent to which you seek to be exempted from the Control and (ii) explains your reason(s) for seeking the exemption; and
b.provide any other information requested by, or on behalf of, an AFP Superintendent for the purposes of determining whether to approve the exemption.
8.3.The AFP Superintendent may grant an exemption subject to conditions specified in writing.
8.4.You must comply with all of the conditions specified in writing by an AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
8.5.A request for an exemption must be made before the material time and date.
8.6.If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
9.Exemption granted by the AFP with or without a request from you
9.1.An AFP Superintendent may grant an exemption to the requirements or prohibitions specified in the Controls with your consent.
9.2.The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.
9.3.You must comply with all the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for purposes) of no effect.
Interpretation
In this Interim Control Order:
a.AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism portfolio.
b.Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.
c.Material time and date means:
i. in relation to a request for an exemption to the requirements or prohibitions in Control 6.1 – the time and date at which you wish to access or use the mobile phone and SIM card.
d.Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
e.Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ or ‘special constable’ within the meaning of the Police Act 1892 (WA).
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)ANASTASSIOU J:
BACKGROUND
On 5 March 2021, I made an interim control order (ICO) in respect of the Respondent, Shayden Jamil Thorne, under s 104.4 of the Criminal Code Act 1995 (Cth): see Booth v Thorne [2021] FCA 380.
Pursuant to s 104.14 of the Criminal Code, I listed the matter for hearing on 9 June 2021 to determine whether the ICO should be confirmed (with or without variation), declared void or revoked (the confirmation hearing).
The application for confirmation of the ICO is supported by the following materials:
(1)an affidavit of Sandra Booth, member of the Australian Federal Police (AFP) holding the rank of Commander, Counter Terrorism Enduring Risk Investigations, sworn on 19 February 2021 (the First Booth Affidavit);
(2)an affidavit of Robert Garner, AFP Federal Agent, sworn on 18 March 2021 (the First Garner Affidavit);
(3)an affidavit of Sandra Booth sworn on 2 June 2021 (the Second Booth Affidavit);
(4)an affidavit of Robert Garner sworn on 4 June 2021 (the Second Garner Affidavit);
(5)written submissions in relation to the making of the ICO dated 26 February 2021; and
(6)written submissions in relation to the making of a confirmation order dated 4 June 2021.
The Respondent did not oppose the confirmation of the ICO. However, there is a dispute about the duration of the confirmed control order. On the one hand, the Applicant seeks that the confirmed control order be in force for a period of 12 months from the date the ICO was made, being 5 March 2021 to 4 March 2022, which is the maximum period available under s 104.16(1)(d) of the Criminal Code. Conversely, the Respondent contends the controls should be in place for six months from the date on which the ICO was made, being 5 March 2021 to 4 September 2021.
For the reasons that follow, I have concluded that I should confirm the ICO for the balance of the 12 month period sought by the Applicant. However, I would expect that any potential further application for control orders in respect of the Respondent will be supported by an updated and cogent risk assessment. If necessary, such assessment may be produced to the Court by way of confidential affidavit material.
PROCEDURAL REQUIREMENTS
Before considering the dispute about the duration of the confirmed control order, I must be satisfied on the balance of probabilities that the procedural requirements in ss 104.12 and 104.12A(2) have been complied with.
In respect of the requirements in s 104.12 of the Criminal Code, I am satisfied that:
(1)on 5 March 2021, a member of the AFP served the ICO personally on the Respondent in accordance with s 104.12(1)(a) of the Criminal Code; and
(2)on that same day, the AFP member informed the Respondent of the matters set out in ss 104.12(1)(b) and (c) of the Criminal Code by handing him a document titled ‘notification and explanation of an interim control order’ and by providing an opportunity for the Respondent to read, consider and ask any questions about the materials.
Further, in respect of the requirements in s 104.12A of the Criminal Code, I am satisfied that:
(1)on 22 March 2021, the Applicant notified the Respondent that she had elected to seek confirmation of the ICO; and
(2)on 4 June 2021, the Applicant personally served the Respondent with a copy of the documents referred to in s 104.12A(2)(a).
These documents enable the Respondent to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the control order.
For completeness, I am also satisfied of the matters with which I am required to have regard to in ss 104.4(1)(c) and (d): see s 104.16(1)(a).
CONSIDERATION
For reasons I have previously explained, I am satisfied that the terms of the ICO are reasonably necessary and appropriate and adapted to protecting the community: s 104.1 of the Criminal Code.
The issue that presently arises is the duration for which the ICO should be confirmed. In this respect, the Applicant submitted that it is necessary to confirm the control order for the maximum period of 12 months for the following reasons:
12.1. There is no evidence that the Respondent has renounced the extremist ideology that led to his criminal conviction. The Respondent has a long standing adherence to an extremist ideology and has ongoing risk factors;
12.2. The Respondent continues to pose a risk to the community of committing, supporting or facilitating a terrorist Act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in a foreign country;
12.3. The risk the Respondent poses to the community has endured, though reduced, since his release from custody on 7 March 2020;
12.4. It is not possible to calculate for how long that risk will endure;
12.5. The evidence of Commander Booth is that in her professional judgement the risk posed by the Respondent to the public will not resolve in less than the 12 month maximum period permitted for a control order;
12.6. The current ICO with reduced controls enables the AFP to assess the Respondent’s risk in an environment that is less strictly controlled. This less controlled environment has only been in existence since March 2021;
12.7. A confirmed control order for a period of 12 months is necessary to provide the AFP with an adequate opportunity to continue to assess the extent to which the Respondent has resiled from his adherence to Islamic extremist ideology and to further assess the risk the Respondent poses to the community, in an environment that is less strictly controlled;
12.8. A period of 12 months duration is necessary for the AFP’s consideration of whether a further control order is needed to protect the public from a terrorist act, prevent the provision of support for or the facilitation of a terrorist act, or prevent the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country;
12.9. The evidence of Commander Booth is that a shorter period than the maximum available would significantly impact the AFP’s ability to assess the risk that the Respondent poses to the community. While the legislation permits the AFP to seek another ICO at the end of the current ICO (whatever its duration), the process by which the AFP decides to make an application for a further control order is complex and will be hampered if there is less information available to the AFP.
[Footnotes omitted]
These matters are deposed to in the First Booth Affidavit and Second Booth Affidavit.
The essential contention of the Applicant is that the Respondent poses an ongoing risk to the community and the balance of the 12 month period is required in order to make a comprehensive assessment of the nature of the risk posed by the Respondent. However, the Applicant would likely concede – or at least should – that if the maximum period for which a control order could be confirmed were 18 months, for example, she would benefit from the unexpired period of 18 months in order to make the assessment. Equally, if the maximum period for which an ICO could be confirmed were six months, the Applicant would do the best in that six months to complete the task. That is to say no more than to recognise that the time required to complete a task has a tendency to expand to fill the time available within which to do it.
The ongoing need for a risk assessment of the Respondent is the critical basis for the Applicant’s contention that the order should be confirmed for the full period and I am prepared to accept that for the purpose of confirming the ICO in this instance. However, if there were a further period in respect of which control orders are sought to be imposed on the Respondent, I would not so readily accept the proposition that further time is required to make an assessment of the risk he poses to the community.
In my view, there is a danger inherent in accepting such reasoning on an ongoing basis, as the time said to be required to make such an assessment could lead to the control orders being sequentially and incrementally extended, without the assurance that the control orders are reasonably necessary and appropriate or adapted to the risk pertaining at the time of the application. Accordingly, while I am prepared to accept on this occasion that the Applicant requires further time to assess the extent to which the Respondent poses a risk to the community, I would be less inclined to do so in the future.
In reaching a view that the ICO should be confirmed until and including 4 March 2022, I have considered the matters which the Respondent regarded as intrusive or unduly burdensome in the control order. Those matters related to Controls 1 and 6 of the ICO.
More specifically, the Respondent submitted that his liberty was disproportionately restricted by the requirement in Control 1. The Respondent indicated that by reason of that control, he is required to seek permission from the AFP if he intends to reside other than at his current address for a period of greater than 21 days. However, as counsel for the Applicant explained, the Respondent is not required to seek permission from the AFP where he proposes to reside at a place other than his usual residence for a period of in excess of 21 days. Rather, he is simply required to give the AFP notice that he proposes to reside elsewhere (see Control 1.2 of the ICO). I do not regard that as an undue burden on the Respondent, notwithstanding that it may be of some inconvenience.
The Respondent also objected to Control 6 on the basis that it requires him to use a mobile phone and SIM card provided by the AFP. While I accept that may involve an intrusion into the Respondent’s privacy, that particular constraint is plainly targeted at the risk of the Respondent communicating in relation to potential terrorist activity. I am therefore satisfied that that is a necessary, reasonable and appropriately adapted control. Moreover, as counsel for the Applicant explained, the Respondent has an option to use his own mobile phone device, rather than a device issued by the AFP, and has elected not to do so (see Control 6.1 of ICO).
In those circumstances, I accept that while there is some degree of inconvenience to the Respondent, the intrusion on his liberty is not unduly burdensome.
DISPOSITION
For the reasons expressed above, I am satisfied that the ICO should be confirmed for the maximum period available of 12 months, being until 4 March 2022.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. Associate:
Dated: 1 November 2021
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