Minister for Home Affairs v Benbrika

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2020 03527

MINISTER FOR HOME AFFAIRS	Plaintiff
and
ABDUL NACER BENBRIKA	Defendant

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 November; 1, 2, 3, 7, 8, 9 and 11 December 2020
DATE OF JUDGMENT:	24 December 2020
CASE MAY BE CITED AS:	Minister for Home Affairs v Benbrika
MEDIUM NEUTRAL CITATION:	[2020] VSC 888

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PUBLIC LAW – Application for a continuing detention order (‘CDO’) under Criminal Code Act 1995 (Cth) – Defendant sentenced to 15 years’ imprisonment for terrorism offences in 2009 – Sentence now concluded – Whether defendant de-radicalised – Whether unacceptable risk of committing serious Part 5.3 offence if released into community – Disputed expert evidence as to risk assessments – Whether any less restrictive measure that would be effective in preventing risk – Unacceptable risk established – No less restrictive measure that would be effective in preventing risk – CDO for 3 years – Criminal Code Act 1995 (Cth) ss 105A.1, 105A.3, 105A.7, 105A.8, 105A.13.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Orr QC with Mr A Berger QC, Ms A Lord and Ms R Avis	Australian Government Solicitor
For the Defendant	Mr B Walters QC with Mr S Moglia and Ms R Khan	Doogue + George Defence Lawyers

HIS HONOUR:

Introduction

By originating motion dated 4 September 2020, the plaintiff, the Minister for Home Affairs, seeks a continuing detention order (‘CDO’) in relation to the defendant, Abdul Nacer Benbrika, pursuant to s 105A.7(1) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth) (‘the Code’).

In circumstances on which I will later elaborate, the defendant received a total effective sentence of 15 years’ imprisonment for terrorism-related offences on 3 February 2009. Shortly before the expiration of his term of imprisonment, I made an interim detention order (‘IDO’) which commenced on 5 November 2020 on the expiry of the sentence. I later made a further IDO to come into effect on the expiry of the first IDO. Both orders were made without any opposition from the defendant. The current IDO is due to expire on 30 December 2020.

The making of the CDO sought by the plaintiff is opposed by the defendant.

The law

The power to make a CDO is contained within Division 105A of the Code. That Division was inserted into the Code by Schedule 1 of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) and came into operation on 7 June 2017. The object of the Division, as indicated in s 105A.1:

is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

A serious Part 5.3 offence means an offence against that Part for which the maximum penalty is 7 or more years of imprisonment.[1] This encompasses a very wide range of terrorism offences, including many of a much less serious nature than those of which the defendant was convicted in the past.
[1]s 105A.2 Criminal Code Act 1995 (Cth) (‘the Code’).

Section 105A.3 identifies classes of persons to whom a CDO may apply. As a person who has been convicted of a serious Part 5.3 offence and is subject to an IDO, the defendant is such a person.

Section 105A.7, which sets out the requirements for the making of a CDO, provides:

(1)A Supreme Court of a State or Territory may make a written order under this subsection if:
(a)an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and
(b)after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and
(c)the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1: An example of a less restrictive measure is a control order.
Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1)(b) of this section (see subsection 105A.8(3) and section 105A.13).

Section 105A.8 sets out the matters to which the Court must have regard in making a CDO as follows:

(1)In deciding whether the Court is satisfied as referred to in paragraph 105A.7(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 safety and protection of the community;
(b)any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender’s participation in the assessment by the expert;
(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 he or she 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 continuing detention order or interim detention 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;
(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.
(3)To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court’s consideration of the matters referred to in subsections (1) and (2) of this section.

Section 105A.13 provides:

(1)A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a continuing detention order proceeding.
(2)Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:
(a)the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and
(b)the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence.

Division 104 of the Act sets out the framework for the use of control orders to ensure the safety of the community from suspected terrorist offenders. The recent introduction of Division 105A seemingly reflects Parliament’s view that there may be cases where even with the extensive measures possible under the control order regime, the risk a convicted terrorist offender poses to the safety of the community is too great for the person to be released at this time.

The Court was informed that the present application is the first made since Division 105A came into effect three years ago.

Brief procedural history of index offending

The defendant was one of 13 men charged with terrorist offending committed in the period 1 July 2004 to 8 November 2005. One of the accused, Izzydeen Atik (‘Atik’), pleaded guilty and subsequently gave evidence in the trial. The trial of the other 12 accused commenced in February 2008 before Bongiorno J.

On the Crown case, the terrorist organisation to which these men belonged was an unincorporated body which was directly or indirectly engaged in preparing or fostering the doing of a terrorist act in that it was preparing or fostering an action or threat of action involving the use of explosives, incendiary devices or weapons intended to advance a religious cause, namely the pursuit of violent jihad in the advancement of Islam. The Crown alleged that this action or threat of action was intended to coerce or influence a government or governments and/or to intimidate the public or a section of the public. The defendant was alleged and found by the jury verdicts to be the director of the activities of the organisation.

On 15 and 16 December 2008, seven of the 12, including the defendant, were found guilty of knowingly being members of a terrorist organisation, and in some cases, other offences as well. The defendant was also convicted of directing the activities of a terrorist organisation, and of possession of a thing connected with preparation for a terrorist act. Four of the remaining accused were acquitted, and in the case of one, the jury could not reach a verdict.

The defendant was sentenced on 3 February 2009 to a total effective sentence of 15 years’ imprisonment with a non-parole period of 12 years.[2] He was sentenced to be imprisoned for seven years for being a member of a terrorist organisation, 15 years for directing the activities of a terrorist organisation, and five years for the possession charge. All sentences were concurrent.
[2]R v Benbrika and ors [2009] VSC 21 (‘Benbrika and ors’).

The co-accused received total effective sentences ranging from four years to eight years. All appealed against their convictions and sentences.[3] The defendant and one of his co-accused succeeded in their appeals against conviction in respect of the possession charge. A retrial was ordered in the case of the defendant. That matter did not, in the end, proceed. Otherwise, the appeals against conviction were dismissed. In respect of the appeals against sentence, all accused succeeded in their appeals. All other than the defendant were resentenced in a manner leading to a reduction in their total effective sentences. In the case of the defendant, his sentence on the membership charge was reduced, but the total effective sentence remained at 15 years’ imprisonment.

The facts of the defendant’s offending[4]

[3]Benbrika v R (2010) 29 VR 593.

[4]This account of the facts is largely based on the reasons for sentence of Bongiorno J in R v Benbrika and ors [2009] VSC 21.

The defendant was born in Algeria in 1960 and emigrated to Australia at the age of 29 in 1989. He left his home country at least in part because he perceived the observance of Islam to be becoming more difficult there. He was a qualified aviation engineer in Algeria and upon his arrival in Melbourne was able to bring his qualifications up to local acceptance. He never worked in that field in this country, however, and indeed, spent much of his time prior to his arrest unemployed. It seems that the defendant focused his attention upon advancing his knowledge and involvement in his religion. He became increasingly recognised as a learned person in the Islamic community. He taught at various mosques and Islamic organisations. His attitudes to Islam and its practise brought him into conflict with other Muslims to such an extent that, eventually, he was either excluded from or voluntarily desisted from some community activities, including involvement with the Preston mosque. From about 2002, he came to the attention of the Australian Security Intelligence Organisation (‘ASIO’), an organisation towards which he often expressed antipathy.

Some time prior to the indictment period, a number of young men including some of his co-accused, began to associate with the defendant and each other and to attend religious classes called ‘dars’ classes which he gave. The classes concerned Islamic theology, particularly focussing on the central concept of monotheism or ‘tawheed’.

Outside the dars classes, the defendant associated, formally and socially, with those who were to become his co-accused. At some indeterminate time, they, with him, formed a group, or in Arabic, a ‘jemaah’, of which he was the leader. The jemaah existed, under the direction of the defendant, for the purpose of engaging in violent jihad, something which was regarded by the defendant and the members of the jemaah as an integral part of their religious obligations. This was a matter constantly reinforced by the defendant’s teaching and discourse with his followers. He regarded the destruction of the ‘kuffar’ or ‘unbelievers’ as an essential aspect of Islam. It was intended by its members that the jemaah would achieve this by acts of what Bongiorno J called ‘terrible violence in this country, or perhaps elsewhere’.[5] The purpose of such acts of violence in this country would be to coerce the Australian Government to withdraw Australian forces from Iraq. The presence of such troops in that country was seen as being oppressive to Muslims and the Islamic religion.
[5]Benbrika and ors (n 2) [15].

The jemaah was not proven to have any formal structure by way of meetings, records or the like, but it did have a sandooq (or box) towards which members made contributions. The sandooq was kept by Ahmed Raad under the direction of the defendant. There was a dispute at trial as to what the sandooq was used for, but Bongiorno J sentenced those who were convicted on the basis that the sandooq was used or intended to be used to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Disbursed funds were used for various purposes of the jemaah, although there was no proof that any purchases of weapons or the like were made.

In discussing the facts of the case, Bongiorno J stated:

The evidence that the jemaah, led by Benbrika was engaged in preparing or fostering a terrorist act is largely contained in the 482 intercepted conversations which were before the jury. Some of those conversations were covertly recorded at Benbrika’s home and, occasionally, at other places, and some were recorded from intercepted telephone calls. In the former, Benbrika was almost always a participant, whereas the latter were often between other members of the group and sometimes included unidentified people. The nature and purpose of the organisation emerges from those conversations, and from the written and electronically recorded material found in the possession of some of the prisoners and discussed by them in a number of the conversations.
The term ‘jihad’ is used, particularly by Benbrika, in many of the intercepted conversations. Although it is an Arabic word which translates literally as ‘struggle’, it has acquired many different meanings in Islam, as Samir Mohtadi explained in his evidence. Many of those meanings are benign. It can mean the promotion of Islam by non-violent means; the seeking of perfection in one’s own moral life and relationships with Allah; the diligent attention to one’s religious and familial duties; and probably a number of similar things. However, it also means a violent struggle against the enemies of Islam: the kuffar. This was the meaning which Benbrika attributed to it, and he claimed that it was the only meaning of jihad authorised by the Koran. In a conversation with Sayadi and a man called Belhaj on 19 August 2005 he not only asserted that the only meaning of jihad was fighting the kuffar but also that it equated to what the kuffar called ‘terrorism’…
Whilst, as might be expected, the content of the 482 conversations heard by the jury was diverse, it included a great deal of discussion concerning the necessity for the jemaah to engage in jihad in the Islamic cause. This concept was explained more than once by Benbrika as involving violence towards those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Sharia law (which he referred to as Allah’s law) in this country. As he expressed it:
‘…I don’t believe in this country. I don’t believe in this law. Which all this believe, no Allah but Allah, no Allah no other law. This the meaning of no Allah but Allah’

Benbrika referred to Australia as a ‘land of war’, thus justifying the promotion of a violent Islamic response as being self-defence. He justified fraud and violence against the kuffar because, according to him, ‘the money and the blood of kuffar are lawful’. [6]

[6]Ibid [19]-[22].

The members of the jemaah considered themselves brothers and sometimes referred to themselves as ‘mujahideen’, Islamic warriors fighting in the cause of Allah. They frequently spoke of ‘doing something’, alleged by the prosecution to be a euphemism for the carrying out of a terrorist act. Evidence indicated that all or most of the co-accused gave the bayat, or oath of allegiance, to the defendant.

Bongiorno J continued:

There are numerous references in the conversations to the need for the members of the jemaah to be ready to destroy buildings and kill people for the cause of jihad. It was apparently considered by Benbrika that if such actions were carried out the Australian government would withdraw troops from Iraq or would leave the American alliance. The actions of those who engaged in the 11 September 2001 attacks in the United States and the train attacks in Madrid and London were discussed in terms of praise and admiration. The heavenly rewards said to be consequent upon dying in the Islamic cause were often spoken of. The necessity for fortitude in the face of opposition and even the inevitability, or at least the probability, of ultimate arrest and imprisonment were discussed as praiseworthy objects for the true ‘mujahid’, or ‘person who engages in jihad’, to pursue. On one occasion at least, Benbrika referred to his desire to continue the jemaah in gaol if ‘the brothers’ were arrested. He also expressed admiration for Osama bin Laden in conversations with members of the jemaah whilst criticising a Melbourne imam or cleric who expressed a view of bin Laden which was other than complimentary.[7]

[7]Ibid [24].

Evidence from the conversations and raids conducted on the homes of the respective accused indicated that hard and electronic copies of various extremist jihadi literature and media, were viewed and circulated amongst members of the jemaah. This material included combat manuals, publications which contained recipes for making explosives, and diagrams showing how to make a timer for a bomb. Much of the material originated from extremist Islamic websites, upon which could also be viewed such things as graphic footage showing the beheading of hostages captured by the mujahideen. Bongiorno J said of this material that as well as providing instruction for terrorist activity, it had the effect, or could have had the effect, of:

desensitising these young men to the brutal and barbaric means by which there were expected to carry out executions of other human beings – as mujahideen faithful to the Islamic cause as interpreted by Benbrika.[8]

[8]Ibid [45].

The evidence indicated that from time to time, members of the jemaah met together at various locations away from Melbourne, for the purpose of bonding, and on the prosecution case, to engage in training for the purpose of advancing violent jihad. The defendant seemingly considered training to be important, on one occasion on 21 September 2004 expressing the view that training in the use of knives for attacking the kuffar was necessary. He demonstrated to an unidentified male how a knife could be used to attack and kill a person, saying, ‘You have to learn it’. [9]
[9]Ibid [29].

In May 2004, an undercover Victoria Police member infiltrated the group pretending to be a Turkish Muslim who had experience with explosives and their use. He attended a number of dars and befriended members of the jemaah. In October 2004, he offered to show the defendant how an explosive could be made from a mixture of ammonium nitrate fertiliser and diesel oil. To that end, the defendant attended with the undercover operative at a remote bush location where a small quantity of explosive material was detonated by the latter. In subsequent discussions, the defendant enquired how much explosive would be required to destroy different targets such as buildings and houses and where and how such explosives could be obtained. He did not ask the undercover operative to obtain explosives, however.

At the plea hearing, counsel for the defendant asserted that it should be concluded, from matters including his failure to request the undercover operative to source explosives for the group, that he was not serious about wishing to gain knowledge about explosives. Bongiorno J considered another explanation for the apparent nonchalance of the defendant may have been caution on his part, in view of his awareness that ASIO was interested in him and his group and possible concerns about the bona fides of the covert operative. He went on to say:

If Benbrika was cautious in his dealings with SIO 39, this was in complete contrast to his open encouragement of the members of the group to engage in terrorism — almost always in conversations covertly recorded within his own home. For example, on 24 September 2004 he exhorted Merhi to not just kill a few people but to ‘do a big thing’, to which Merhi replied, ‘like Spain’ — an obvious reference to the terrorist attacks on the Madrid train system which had occurred on 11 March that year. In the same conversation, Benbrika referred to killing a thousand people so as to coerce the government into withdrawing Australian troops from Muslim countries. In a later recorded conversation with Atik, Benbrika referred to damaging buildings and blasting things.[10]

[10]Ibid [38].

The only evidence in the trial of the organisation having selected a target or targets for a terrorist act was given by Atik, who said that during a car trip in a motor vehicle with the defendant in August 2005, Benbrika told him that the group had intended to carry out a terrorist attack at the Melbourne Cricket Ground during the then forthcoming Australian Football League Grand Final, but the attack had been postponed for security reasons and due to funding difficulties. According to Atik, the defendant also mentioned other possible targets.

Bongiorno J strongly criticised the credit of Atik during the sentence, expressing the view that it was unlikely that the jury would have accepted him as a witness of truth. He stated that he would not accept him as such. As a result, he stated:

For sentencing purposes, no account will be taken against the prisoners of any of Atik’s evidence. Specifically, the prisoners will be sentenced on the basis that they were members of a terrorist organisation which, although it had encouraged them to perform a terrorist act or acts in the future and had taken steps towards that end, no target or targets had been selected and no explosives or other material had been obtained to carry out such an attack.[11]

[11]Ibid [43].

Whilst acknowledging that an acceptance of Atik’s evidence would have rendered the criminality of the defendant and his co-accused all the more serious, his Honour noted:

This is not to say that their criminality is to be regarded as trivial. The existence of the jemaah as a terrorist organisation constituted a significant threat that a terrorist act would be or would have, by now, been committed here in Melbourne. The absence of an imminent, let alone an actual, terrorist attack does not mean that condign punishment is not warranted in this case.[12]

[12]Ibid [47].

Bongiorno J went on to say, of the defendant:

The essence of Benbrika’s criminality, with respect to the Count of directing the activities of a terrorist organisation lies in his exercising an enormous influence over the young men who followed him, and imbuing, or seeking to imbue in them, a fanatical hatred of non-Muslims and, even, those vast majority of Muslims who abhor violence as much as anyone else. The degree of his criminality, both with respect to his membership and direction of the organisation, must be judged in light of the fact that the existence of that organisation and his leadership of it created a significant risk that a terrorist act would be committed in this community. Where and when such an act might have been committed, how devastating it would have been, or how many people would have been killed or injured as a result of it is impossible to say. It is the creation of the risk of such an event occurring that the legislation is aimed at. Accordingly, it will be for his part in the creation and maintenance of this risk that Benbrika will be punished.[13]

[13]Ibid [68].

On the question of the defendant’s position in respect of violent jihad at the time of sentence, his Honour stated:

There is no evidence before the Court that Benbrika has, in any way, renounced his commitment to violent jihad and hence to terrorism. On the contrary, on one occasion, which has already been noted, he said that if ‘the brothers’ were arrested, as he thought likely, the jemaah should continue in gaol. No submission was made on Benbrika’s behalf that he had resiled from his former position, nor was there any evidence upon which such a submission could have been based. Indeed, all of the evidence points inexorably to a conclusion that he maintains his position with respect to violent jihad which was demonstrated over and over in his own words on (sic) the intercepted conversations.[14]

[14]Ibid [77].

As well as being involved with the members of the jemaah over which he presided, the defendant also was involved with a number of members of a terrorist organisation operating in Sydney in the period in question. A number of individuals were convicted in the Supreme Court of New South Wales on 16 October 2009 of conspiring to do acts in preparation for a terrorist act (or acts). A number of participants in that conspiracy visited Melbourne and met with the defendant on several occasions. On one of those occasions in May 2005, the defendant participated in a conversation with some of the Sydney conspirators in relation to the ordering of laboratory equipment. The defendant and some of the members of the jemaah visited one of the conspirators, Khaled Sharrouf, in Sydney in 2004. The defendant had two further visits to the home of Sharrouf in 2005.[15]
[15]The contact between the defendant and the Sydney conspirators is summarised in the Statement of Agreed Facts.

Conduct, engagement and progress in custody

The defendant has been in custody since his arrest in November 2005. He has spent the bulk of his overall time and all of the period since the commencement of his sentence in various units of Barwon Prison. Throughout his sentence, the defendant was been subject to a maximum security classification. During the early stages of his incarceration, he did not work, preferring to focus on his trial and his religious studies. On the latter score, he told those present at a [redacted] on [redacted] that he learned the Koran off by heart in a matter of months. From 2012, he has maintained employment within the prison, and has been considered to be an excellent worker. The defendant received fines and loss of privileges for a number of incidents of which he was found guilty between 2006 and 2013, some of them involving assaults or aggression. In addition, there were further incidents which did not lead to any charges.

On 18 September 2014, the defendant was transferred from the Protection Unit (Hoya) to a High Security Unit (‘HSU’) (first Acacia then Olearia). The transfer occurred pending investigation into claims that he had been radicalising other prisoners. It was alleged that he had been engaging in preaching to other prisoners and on 21 August 2014, a CD containing extremist and graphic content was seized in his cell. At a meeting on 24 September 2014, the Sentence Management Panel (‘SMP’) explained to the defendant that his preaching had become problematic to the management of the Hoya Unit. The defendant disputed this, making reference to current events in Iraq and Syria and suggesting that the panel would not understand his point of view.

On 14 October 2014, Corrections Victoria (‘CV’) determined that the defendant would remain in the HSU as a long-term management prisoner. It was explained to him that his behaviour caused disruption with the Hoya Unit, and the extremist views expressed by him caused angst amongst other prisoners.

From 2014, CV placed restrictions on the defendant’s visitor list. From September 2014, his list of visitors was restricted to ten, it having been determined that a number of the 51 people who had previously visited him were not appropriate.

On 9 December 2016, the defendant was transferred from the HSU back to Hoya, subject to a Behaviour Management Plan designed to ensure he did not engage in any conduct encouraging violent extremism and to avoid him positioning himself as a religious leader within the unit. Notwithstanding the plan, intelligence suggested that he continued to lead prayer sessions and may have continued to radicalise other prisoners. He was also noted to continue to maintain strong ties with the Muslim community in custody and outside, often communicating with the assistance of his family members.

Clinical sessions, CISP involvement and parole refusals

The Community Integration Support Program (‘CISP’) (pronounced SISP) was launched in 2010 and is Australia’s first prison-based terrorist disengagement program. It was specifically designed to address Islamic extremism. It was expanded in 2015 to provide a community-based disengagement program for vulnerable individuals. Within a correctional environment, CISP is delivered by the Countering Violent Extremism Unit (‘CVEU’) of Victoria Police in partnership with CV and religious leaders. Between 2010 and 2017, the religious partnership was with the Islamic Council of Victoria (‘ICV’). Since October 2017, the partner has been the Board of Imams Victoria (‘BOIV’).

Participation in CISP is voluntary, but prisoners convicted of terrorism offences will not be considered for parole unless they have undertaken CISP. Convicted terrorists are referred to CISP automatically. Other referrals are made by the Major Offenders Unit (‘MOU’). Once a referral is made, the CVEU determines whether the candidate is suitable for inclusion in the program. [Redacted].[16]
[16][Redacted].

In February 2012, the CVEU referred the defendant to CISP. Between February 2012 and August 2013, he participated in [redacted] counselling sessions with [redacted]. In July-August 2013, the defendant ceased his interaction with the mentors and CISP, claiming that he had been engaged dishonestly and without full knowledge of the program and its purpose.

Between July 2015 and February 2016, the defendant participated in clinical sessions with Nicole Sakellaridis, a Senior Clinician with the MOU. Ms Sakellaridis prepared clinical file notes of these sessions. The initial purpose of the sessions was to address the defendant’s personal and treatment needs, including the concern raised by his legal representatives that he may be suffering from depression and would be open to engaging in rehabilitation and educational programs.

In many of the clinical sessions, the defendant’s past and future involvement in CISP was discussed. The defendant indicated a willingness to be involved, but stated that the right religious mentor would need to be selected, implying that he himself was a knowledgeable scholar. It was concluded by Ms Sakellaridis that it was required that the defendant’s ideological views be challenged by a cleric with a detailed knowledge of the necessary cultural and religious issues. She raised this issue with the MOU.

In August 2015, the MOU referred the defendant again to CISP. The defendant was found unsuitable for participation in CISP, for reasons including the fact that a suitable Imam could not be identified.

In a session with Ms Sakellaridis on 6 October 2015, the defendant impugned the integrity of many Imams in the community, claiming that they were only interested in money and held Government-inspired views which had them scared to tell the truth. He suggested that all the Imams working with CISP fell into this category and were not respected in the community.

In February and March 2016, the defendant was re-assessed for his suitability for CISP. [Redacted]. He was assessed as being not ready to engage with CISP in a productive manner because he was considered to be unwilling and unable to engage in robust ideological discussions designed to challenge his beliefs. It was recommended that he receive clinical support from one-on-one sessions with CV staff for the purpose of preparing him for CISP by improving his engagement style and increasing his preparedness to submit to a mutually respectful religious mentoring scheme.

It was in those circumstances that he commenced working with Dr Kelly Mischel, Senior Psychologist with the MOU on 23 February 2016. He participated in clinical sessions with her until 28 September 2020. Her clinical file notes were amongst the material tendered in the hearing.

Dr Mischel discussed with the defendant his motivation for engaging in the clinical sessions. He told her that he believed that if he refused to do so CV would make a big issue of it. Attending these sessions would be beneficial for him in his parole application.

In 2016 and 2017, the defendant made a number of negative statements to Dr Mischel about CISP and the mentors. He claimed to be more learned than any of the Sheikhs and Imams from CISP. In a phone call to his son Bakr on 24 June 2017, the defendant asked Bakr to call a particular Sheikh known to them and tell him that all of the Imams and Sheiks connected with CISP were apostates. On 14 November 2017, the defendant told Dr Mischel that anyone doing a deradicalisation program was lying because you cannot ask someone to stop praying. The agencies involved were taking money for nothing, which was a sin.

On 20 September 2017, the Commonwealth Parole Office (‘CPO’) wrote to the defendant informing him that he would be eligible to be considered for parole on 5 November 2017, that CV and Victoria Police had recommended that parole be refused, and setting out adverse matters relevant to the Attorney-General’s assessment of the defendant’s parole, seeking his response.[17] The defendant was asked to comment on various matters, including whether he had continued to influence people in custody or in the community to hate non-Muslims or Muslims who do not support violent jihad or to pursue violent jihad, whether he was in contact with his co-offenders or other people convicted of terrorist offences, and whether he had renounced his commitment to violent jihad and terrorism. The CPO received no response to this letter.
[17]Annexure JAP-01 to first affidavit of Jennifer Perrin, Exhibit G.

On 1 November 2017, the Attorney-General declined to release the defendant on parole, and signed a parole refusal notice outlining the reasons for the refusal.[18] Those reasons included that the defendant had been assessed by the Australian Federal Police (‘AFP’) and Victoria Police as posing a risk to community safety because he had maintained extremist beliefs and had a history of influencing people to become involved in violent extremism, that he had continued to associate with people of national security interest, and that he had not participated in CISP. The parole refusal notice was provided to the defendant on 3 November 2017.
[18]Annexure JAP-02 to Exhibit G.

On 14 November 2017, the defendant had his first clinical session with Dr Mischel after the parole refusal. For the first time, he made the claim set out in the following section of the clinical notes:

Nacer explained that in 2014 he had found out some things that he needs help translating and to understand properly. He stated that he learnt that when a Muslim gets a visa or citizenship in another country they are required to protect the people of that country from harm. Therefore the country of his residence would be protected from any violence he would consider part of the ideology to inflict.[19]

[19]Annexure FD-137 to first affidavit of Frank Dumic, Exhibit M.

In the session, the defendant also claimed that his statements relied upon in his trial, particularly those about needing to do something, were just bravado, and he was not intending to harm anyone. He said he only had a 30 percent understanding of Islam at the time of his arrest and now had a much better understanding through further study in custody. He claimed that anyone doing a deradicalisation program was lying because you cannot ask someone to stop praying. He further stated that he could not denounce violent jihad ‘because that would be saying that he is a disbeliever and he can’t do that’. Dr Mischel noted:

‘Whilst he cannot denounce violent jihad he would like to speak to the Sheik (sic) and provide information to the Attorney General to explain why the people of Australia are safe and he could not harm them’.[20]

[20]Ibid.

In November 2017, the defendant was re-referred for engagement in CISP.

There were [redacted] initial [redacted] in [redacted] in which the defendant, Dr Mischel, and [redacted]. The purpose of [redacted] was for a consent form to be signed by the defendant. He indicated his willingness to commence and engage with any Imam chosen, but ‘did make one remark that in the past the Imams who saw him quoted religious scholars incorrectly and most of them “don’t know it”’.[21] Dr Mischel also wrote the following in her case note:

Nacer did fixate on a couple of topics included (sic) his letter from the Attorney General asking him to ‘denounce violent jihad’. He spoke about how ‘violent jihad’ was part of Islam and he could not deny this. As with many concepts, Nacer takes this quite literally and finds it difficult to understand what the AG is actually seeking to understand about his beliefs and risk.

[21]Annexure FD-141 to Exhibit M.

On 23 May 2018, the defendant provided the signed consent form and he was officially into the CISP program. At this time, a needs assessment and intervention plan was prepared for the defendant [redacted][22] which was done. Five specific needs were identified and specific goals were set. The first was to actively accept and promote that violence is not an acceptable form of dialogue or progressing an agenda. The second was to denounce violent extremism.
[22][Redacted].

From that time, the defendant has participated in regular [redacted].

On 15 June 2018, a parole assessment report interview of the defendant took place, conducted by an unnamed CV officer. A detailed case note of the interview appears in the tendered material.[23] During the interview, the defendant said that things were now very different. He said that he did not think that the risk posed by him would vary depending on where he lived upon release. He indicated that he felt a sense of responsibility to provide guidance to people who approached him asking for help. He mentioned a strategy discussed with Dr Mischel to send them to an Imam, but made the point that ‘people don’t trust Imams, they trust me’. When asked why people would come to him, he said, ‘Ask them’, and that his religion did not permit people to boast. He was concerned that if he turned people away they would take it the wrong way. He said, ‘I like to speak the truth and this is used against me, this is a villain’. He questioned whether he should be honest with the writer, or should lie. The defendant was asked whether there was any further information he would like to provide for the parole assessment. He said that he had spoken the truth in the past, and that after having been denied parole, he questioned why he was honest when it was used against him. He described it as a ‘war in myself’ as to whether he should be honest or not. When asked to discuss his current views, the defendant said that he had ‘found a window by reading’, and said that a Muslim living in Australia was not allowed to harm anyone. At the time of his offending, he did not know this. He had felt that it was his role to defend Muslims killed in Iraq. ‘Australia was an ally to help fight against Muslims, why is the Government fighting against Muslims? I have to defend, I have to harm them.’ That was the expectation of all Muslims. It was his duty. He agreed that in the past he saw it as his religious duty to cause harm to the Australian community because he felt that the Australian government was harming Muslims overseas.
[23]Annexure FD-176 to Exhibit M.

On the question of renouncing violent jihad, the defendant said jihad meant to fight for the sake of Allah, a holy war. He said he did not recognise the term ‘violent jihad’, and asked, ‘What do they want me to renounce?’ He spoke of two different meaning of jihad, one religious and one linguistic. He was not allowed to give up part of his religion. He would not be able to say that he renounced jihad as he will continue to fight for Allah and would not renounce his religion. He would continue to abide by Islamic law, not Australian law. He would continue to fight for Allah, although he would not use violence.

On 14 September 2018, the CPO again sent a letter to the defendant setting out adverse matters relevant to the Attorney-General’s assessment of the question of parole for the defendant. Again the defendant was notified of the opposition of CV and Victoria Police to a grant of parole, and matters requiring his response were listed. This time, the defendant did respond, in a letter dated 15 October 2018.[24] In the letter, the defendant stated that his religion continued to be important to him, and that he wanted to continue to worship with the guidance of spiritual teachers. He said that if released on parole, he would organise regular visits to the mosques of Sheiks with who he had developed ongoing relationships through CISP. In dealing with his former extremist ideology, he stated that he was motivated by a false understanding of his religious obligations. He stated that he knew that acts of violence against people and governments are criminal. He no longer held his previous views, and no longer condoned violence of any sort. He had deepened his understanding of his religious obligations. Through conversations with Imams and through studies of many religious texts, especially a named book by the scholar, Abdelkader Ibn Abdelaziz, he now understood that it is against the will of Allah to take up arms against a foreign government and against non-Muslims. His understanding of jihad had become more clear. The government and people of Australia had given him a home, and he was obliged by his religion to follow and show respect to the government and system of laws. He was not under an obligation in or outside Australia to fight jihad. He refuted that he was now being less vocal about his views of global terrorism because he was aware of the consequences of expressing his views. Rather, his views had changed. As for his past offending, he fully acknowledged that what he did was wrong and expressed his deep remorse. He said that he did not consider that he was the victim of injustice, or had been persecuted in any way by the Australian government, Victoria Police or CV.
[24]Annexure JAP-05 to Exhibit G.

On 26 October 2018, the Attorney-General declined a grant of parole, signing a refusal notice outlining the reasons for the refusal. In the notice, the Attorney-General acknowledged the defendant’s claim of having developed a reinterpretation of his ideology. He stated that ongoing engagement with CISP would be a necessary step in demonstrating that the risk he posed had reduced.

The defendant continued to engage in CISP after the second parole refusal.

On 13 June 2019, a further a parole assessment report interview of the defendant took place. A lengthy file note of the interview appears in the materials.[25] In opening the case to the Court, Ms Orr QC took me to several passages in the file note. A number of these were relied on as indicating that the defendant gave answers which he believed may appease the interviewer, that he showed continuing grandiose confidence that people would seek out his views in the community, that he displayed a disparaging attitude towards Imams, and that his sons were an emanation of him and a way of espousing his ideology. In claiming that people would come to see him rather than an Imam, he said, ‘I am best source’. He reiterated that there was no way that he could denounce jihad as this was a part of his religion. It would be like someone asking him to deny another part of his religion, such as prayer. He said his opinion regarding his ideology had changed, but not his religion. He did not consider that being in contact with a radicalised person would be a risk to him.
[25]Annexure FD-177 to Exhibit M.

On 28 August 2019, the CPO again wrote to the defendant setting out adverse matters relevant to the Attorney-General’s assessment of the defendant’s parole. Again, the defendant was asked to comment on a number of matters, including matters relating to his ideology, the relationship between Australian and Sharia law, his associations with people who have radical ideology, and the benefits he had obtained from participation in CISP. The defendant responded to that letter.[26] He again suggested that he now understood that there is an obligation on Muslims living in non-Muslim lands to follow the rules and laws of that land. Previously, this had been ‘obscure’ to him. He acknowledged that he had been in contact with some of his co-offenders and Khaled Sharrouf, but said this was of a harmless nature and had ceased in 2017. He said that he had received visits from people who wanted to fight overseas, some of whom ended up going there and dying in conflicts. He never encouraged them to fight overseas. They were adults and made their own decisions. At the time of the visits, he maintained his old ideology. If he had his time again, he would try to discourage them from going.
[26]Annexure JAP-08 to Exhibit G.

At a [redacted] on [redacted], the defendant, according to a note of the session, in the course of discussing the treaty to which he had earlier referred:

mentioned that he will think about proclaiming openly about his new view on not supporting violence, he says he needs time to think about it and how it will happen.[27]

[27][Redacted].

At a [redacted] on [redacted], the defendant was asked how he viewed the relationship between Islamic law and Australian law. He apparently found this question somewhat confronting, in that he was unsure as how best to answer the question without compromising his theological beliefs.

At a [redacted] on [redacted], [redacted] asked the defendant how he viewed ISIS. He indicated that he did not wish to answer the question directly, and offered an example from history. He said that he would need to read the publications of ISIS in order to be able to better evaluate them. He declined the request to answer some further questions in writing, saying that he had already written his responses to the Attorney-General.

On 17 October 2019, the Attorney-General declined to release the defendant on parole and signed a parole refusal notice outlining the reasons for the refusal. This was forwarded to the defendant on 24 October 2019.

At a [redacted] on [redacted], in a discussion about the commonality between religions, the defendant questioned the concept. He said there were commonalities between human beings and dogs, but that did not make human beings equivalent to dogs, or vice versa. He reiterated that he believes in dealing with non-Muslims with justice and respect as Allah had said in the Quran, but he believed it was important to have enmity towards them from a theological standpoint as they are a falsehood. In the same session, the mentor asked the defendant his thoughts regarding the death of Abu Bakr al-Baghdadi.[28] He said it was expected to happen, and did not wish to elaborate further.
[28]The leader of Islamic State until his death on 26 October 2019.

At some point in 2019,[29] a review of the defendant’s progress against the objectives in his intervention plan was conducted by a review panel comprising representatives of the CVEU, the BOIV, and CV.[30] In respect of the goal, ‘To actively accept and promote that violence is not an acceptable form of dialogue for progressing an agenda’, the panel stated, by way of summary, ‘Client has shown little change in this area and often appears resistant to change’. In respect of the goal ‘To denounce violent extremist groups and their supporters”, the conclusion was:

Client is unwilling to denounce extremist groups, citing that he cannot because he does not have materials to review and then justify his response. This is not typical of offenders who are mentored by members of the BOIV. Client appears to be unwilling to take things at ‘face value’ from qualified and educated Imams.

[29]The precise date is unclear.

[30]The results of the review appear as Annexure [redacted].

The review panel made a number of comments [redacted]. A number of them were as follows:

·     Client has been historical (sic) very open with his comments but is no longer happy to speak freely.
·     Initial mentoring went through a different approach according to [redacted] but it was decided that using chapters from literature were too time intensive and did not work ideally.
·     Second approach was related to his crimes and asks him direct questions and this was effective for a time.
·     Client now believes that there is no reason for him to answer questions because of [redacted]. [Redacted] will continue to ask questions directly to him.
·     Client tends to disagree with himself in regards to previous comments he has made. The main example is that sometimes he will state that his family is the most important thing to him but then will state that they are not compared to his release into the community.
·     Client tends to have issue (sic) with learned Imam’s (sic) stating things and his position being opposite. He believes they are illegitimate.
·     [Redacted] that there is no way that the program can achieve success with him in the time that is left before his release.
·     [Redacted] that his conviction is what he truly believes in and will read something once and make his decision essentially for life.
·     [Redacted] believe that he will continue to preach when he is released and that he has made this very clear.

[Redacted] continued into 2020. [Redacted], the defendant and [redacted] had a discussion regarding:

tafkir of the rulers as well as those who rule by man-made law. According to his comment, he believes that ruling by any other laws than the law of Allah is kufr akbar (greater disbelief)[31] and thus anyone who does so is a disbeliever outside of the fold of Islam.

[31]The concept of kus akbar is dealt with in the affidavit of Dr Adrian Gully, Exhibit R, at page 56.

At a [redacted] on [redacted], the defendant spoke about a problem he had with a question posed to him by CV. He was apparently asked if he saw his clinician Dr Mischel as kuffar. He answered in the affirmative. He said that he could not lie as this was part of his faith. He spoke further about the implications of her being kuffar, and made the point that he recognised that Muslims and non-Muslims can live peacefully. In a discussion about terrorism, the mentor asked how it can be deemed logical. The defendant said that there are different opinions regarding suicide bombing. The mentor asked his views about Australia. The defendant said that we need to weigh the harms and benefits before committing to action.

Sometime prior to 2 September 2020, the 2020 review of progress under CISP was carried out. In the written report of the review,[32] the summary of progress for the first stated goal ‘To actively accept and promote that violence is not an acceptable form of dialogue or progressing an agenda’, read, in part, ‘Client has shown little change in this area and often appears resistant to change and has even gone as far as reversing his opinion’. In respect of the goal ‘to denounce violent extremist groups and their supporters’, the summary of progress was the same as that contained in the review for the previous year.[33]
[32]Annexure [redacted] to [redacted].
[33]See [70].

The review panel notes at the conclusion of the document note, in part, as follows:

· Client declares that he is not a true Salafi and is actually in opposition of Saudi Arabian salafi movement.
· Mentor notes that client has attempted to persuade CISP and stakeholders in his moderation of beliefs. However, mentor states that he is unsure of client genuineness.

In a [redacted] on [redacted], the defendant made it clear to [redacted] that if he went to Court, he would not stand for the judge, as he believed it was not right from an Islamic perspective to do so. He maintained that position in spite of being challenged as to its correctness by the mentor.

In a [redacted] on [redacted], the defendant was [redacted] whether he would continue with CISP upon release. The defendant stated that he would not be released on parole, and as it would not be a condition that he continue in the program, he would not need to do so. When pushed further on the matter, the defendant said he would see what his options were, and decide upon his release.

The defendant’s visa status

On 20 November 2020, the Minister for Home Affairs made a determination under s 36D(1)[34] of the Australian Citizenship Act 2007 that the defendant ceased to be an Australian citizen. From the time of the determination, the defendant ceased to be an Australian citizen. He remains a citizen of Algeria. The defendant has a right to apply to the Minister to have the determination revoked. He could also seek judicial review of the determination, and any decision not to revoke the determination.
[34]Inserted into the Act on 17 September 2020.

Under s 35(3) of the Migration Act 1958, when his citizenship ceased, the defendant was taken to have been granted an ex-citizen visa, a permanent visa to remain in but not to re-enter Australia. Sections 501(2) and (3) of the Migration Act provide the Minister with a discretion by two different pathways to cancel the defendant’s ex-citizen visa on the basis of his not passing the character test. Because of the crimes of which he has been convicted, the defendant is unlikely to pass the character test as defined in s 501(6). The powers under ss 501(2) and (3) are broad discretionary powers and there is a range of reasons which may cause the Minister to choose not to exercise those discretionary powers.

If no decision was made to cancel his visa, unless a CDO was made the defendant would be free to remain in the Australian community. If the visa was cancelled, he would become an unlawful ex-citizen and become liable to immigration detention under s 189(1) of the Migration Act 1958.

There would be avenues for the defendant in those circumstances to challenge the cancellation of his visa. Alternatively, he could make a written request to be removed from Australia, and under s 198(1) of the Migration Act 1958 he would be required to be removed as soon as reasonably practicable.

The plaintiff’s evidence

The plaintiff’s case largely consists of affidavit material. In her opening before me, Ms Orr for the plaintiff took the Court through this material, indicating the subject matter of the various affidavits, reports and other items which were tendered in evidence, and highlighting objections taken by the defendant in respect of some or all of the contents of some affidavits and reports. There was no challenge to the admissibility of most of the affidavits and other documents, and insofar as material was contained in affidavits and not subject to objection, it was largely unchallenged.

The following affidavits, reports and other documents were tendered during Ms Orr’s opening, with the accompanying exhibit numbers:

A.     Affidavit of Lisa Telford affirmed 2 September 2020. Ms Telford is from Australian Border Force and annexed records of the international travel movements of 19 known or suspected foreign fighters associated with the defendant.
B.   Affidavit of Kelly Smith sworn 3 September 2020. Ms Smith is from the Federal Bureau of Investigation (‘FBI’) and annexed an FBI memorandum concerning an interview conducted with Jamil Choucair in Syria.
C.     Affidavit of Troy Kaizik sworn 1 September 2020. Mr Kaizik is from the Australian Passport Office, Department of Foreign Affairs and Trade, and his affidavit annexed correspondence sent to 12 individuals connected with the defendant concerning the cancellation or refusal of passports.
D.     Affidavit (redacted) of Scott Lee sworn 3 September 2020. Assistant Commissioner Lee is with the Counter Terrorism and Special Investigations Command of the Australian Federal Police (‘AFP’). The affidavit explains the ideology, aims and methods of Islamic State and the threat of domestic terrorism in Australia inspired by Islamic State. The affidavit also addresses the asserted lack of any effective, less restrictive measure in preventing risk.
E.   Affidavit of Scott Lee sworn 27 November 2020. This affidavit concerns an application by AFP for a control order against the defendant.
F.   Affidavit of Stephen Hildrew affirmed 3 September 2020. Mr Hildrew is an Australian Border Force officer within the Department of Home Affairs. His affidavit annexes documents in respect of Amer Haddara.
G.     Affidavit of Jennifer Perrin affirmed 1 September 2020. Ms Perrin is the Director of the Commonwealth Parole Office (‘CPO’). Her affidavit provides information concerning the defendant’s parole assessments in the years 2017 to 2020, annexing relevant documents.
H.    Affidavit of Jennifer Perrin affirmed 9 September 2020. This affidavit annexes the refusal of parole notice from 1 October 2020.
I.    …
J.    Affidavit of Jennifer Hosking sworn 3 September 2020. Ms Hosking, Assistant Commissioner (Sentence Management), Corrections Victoria, explains arrangements made for the detention of the defendant under a CDO.
K.     Affidavit of Peter Fogarty sworn 3 September 2020. The affidavit of Acting Superintendent Fogarty, AFP, annexes transcripts of listening device conversations received in evidence at the defendant’s trial.
L.   Affidavits of interpreters sworn and affirmed 3 or 4 September 2020. These affidavits annex English translations of defendant’s correspondence and telephone calls from prison.
M.   Affidavit of Frank Dumic sworn 4 September 2020. Mr Dumic, Acting Assistant Commissioner, Security and Intelligence Division, Corrections Victoria describes and annexes records contained within defendant’s prison file.
N.    Affidavit of Frank Dumic sworn 14 September 2020. This affidavit describes and annexes the defendant’s prison visitor logs, copies of correspondence and recordings of telephone calls made by the defendant.
O.     Affidavit of Frank Dumic sworn 1 October 2020. This affidavit annexes lists of telephone calls made by the defendant in period 2017 to 2020.
P.   Expert report of Charles Lister (redacted) dated 30 August 2020. Mr Lister, the director of the Countering Terrorism and Extremism in Syria programs in the Middle East Institute, Washington DC, describes the role of individuals who are radicalisers or influencers in Islamic extremist related terrorism.
Q.     Expert report of Adrian Gully (redacted) dated 2 September 2020. Dr Gully, an Arabic interpreter and academic experienced in Arabic and Islamic culture and history, describes Islamic scholars and concepts.
R.   Expert report of Adrian Gully dated 23 September 2020. In this supplementary report, Dr Gully provides information about further Islamic texts.
S.   [Redacted].
T.   [Redacted].
U.     Affidavit of Richard Feakes affirmed 4 September 2020. In this affidavit, Mr Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator, Department of Home Affairs addresses matters relevant to the statutory pre-conditions for making a CDO. He annexes the sentence passed upon the defendant by Bongiorno J in the Supreme Court of Victoria, documents relating to the refusal of the defendant’s parole applications, material about enquiries made about the existence of information that might reasonably be regarded as supporting a finding that a CCO should not be made. In addition, he annexes letters sent to Khaled Sharrouf and Majed Raad notifying them of the cessation of their Australian citizenship.

V.     Affidavit of Richard Feakes affirmed 14 September 2020. This affidavit addresses arrangements made for the defendant’s accommodation and management under a CDO.
W.   Affidavit of Richard Feakes affirmed 13 October 2020. This affidavit provides an update in relation to parole.
X.   Affidavit of Graeme Grosse sworn 25 November 2020. Mr Grosse, Commander of National Immigration Detention, Australian Border Force, explains certain matters in respect of immigration detention.
Y.   Passport applications provided by the Department of Foreign Affairs and Trade pursuant to subpoena.
Z.   Statement of Agreed Facts dated 6 November 2020.

In the context of the picture painted by the evidence contained in the affidavits, the plaintiff called two expert witnesses whose evidence was subject to strong challenge. These were Chelsey Dewson and Dr Kelly Mischel.

Chelsey Dewson

Ms Dewson is a forensic psychologist who was engaged by the plaintiff to carry out a psychological assessment and risk assessment of the defendant. Ms Dewson has a history since 2004 of working in various aspects of the justice sector including for some years as Centre Psychologist at Long Bay Correctional Centre in New South Wales (‘NSW’) and for six years in the Sex and Violent Offender Therapeutic Programs in the Custody Based Intensive Treatment Unit where she provided assessment and intervention to high-risk offenders. Since going into private practice in 2016, her work has largely revolved around providing expert advice to courts in NSW including for pre-sentence matters and those pertaining to high-risk offender legislation for sexual, violent and violent extremist offences. Ms Dewson carried out her assessment of the defendant in the knowledge that the plaintiff was contemplating an application under Division 105A of the Code for a CDO. She was engaged as an independent expert to conduct an assessment of the risk of him committing a serious Part 5.3 offence if he is released into the community upon expiration of his sentence. She was also asked to consider certain terms of reference to which I will later turn.

In circumstances of limitations on personal contact due to the COVID-19 pandemic, Ms Dewson interviewed the defendant via Webex between her office in NSW and his location in Barwon Prison on 30 July 2020. The interview lasted three hours and fifteen minutes. Present in the interview were an Algerian Arabic interpreter and the defendant’s legal representative, Ms Isabelle Skaburskis. A semi-structured interview and psychometric testing carried out by Ms Dewson form the basis of her assessment.

As a result of her assessment of the defendant, and a consideration of a vast volume of material from other sources relating to the defendant, Ms Dewson provided a report dated 7 August 2020.[35] In addition, she provided further reports dated 31 August 2020[36] and 11 November 2020.[37] She also gave sworn evidence before me on 2 December 2020.
[35]Exhibit AA.
[36]Exhibit BB.
[37]Exhibit CC.

Report of 7 August 2020

Notwithstanding the presence of an interpreter, the interview was conducted wholly in English, the interpreter being used for translation purposes on two occasions only. The defendant was advised at the commencement that the purpose of the assessment was to provide a report to the Minister for Home Affairs, and that what was disclosed in the interview would not remain confidential. The defendant gave his consent to participate in the assessment. Ms Dewson noted the defendant to be compliant, respectful and seemingly forthcoming with information. In the interview he was asked questions regarding his attitudes, beliefs and values. Ms Dewson considered his responses:

reflected an idiosyncratic communication style which appeared to veil his inner cognitive processes. Specifically, he was vague, tangential and tended to focus on religious principles rather that personal reflections. Acknowledging that for the most part, Mr Benbrika’s beliefs are intertwined with his religious views, this made it difficult to gain insight into his functioning.[38]

[38]Exhibit AA [8].

Ms Dewson set out the family and developmental history of the defendant. He was born and raised in Algiers in Algeria, the third youngest of ten children born to parents who remained together until his father died in 1986. His father had been a strict disciplinarian. His mother became blind as a result of a degenerative condition. It was a patriarchal family structure. Ms Dewson noted the defendant’s motivation for leaving Algeria rested in the civil unrest occurring in Algeria at the time, his belief that there would be no life for him there, and the fact that it had become difficult for him to practise his religion.

Having moved to Australia at the age of 29, he settled in Melbourne, initially feeling unsettled with the freedom apparent in the society. He became more reliant on religious principles to provide him direction. He did not integrate well into Australian life.

The defendant indicated that his wife and seven children, all born in Australia, have continue to support him in custody.

In respect of his religious development, the defendant described himself as being ‘driven by ideology’.[39] His birth-family members, with the exception of his younger brother, did not have strong religious views. In Australia, particularly after encountering barriers to working, the defendant used his free time to read religious texts and engage in religious practices. He described himself as being primarily self-taught in his religion, which is of the Sunni branch of Islam. He has engaged in much self-education, and made it a priority to give his advice to others and spread the knowledge he had acquired. He claimed to be trusted by members of his family and the Muslim community more generally as a source of religious knowledge. Ms Dewson stated:

It is evident that Mr Benbrika is highly confident within his perceived understanding of Islam, and although he conceded that he makes mistakes within other realms of his life, he denied this was occurring within his religious understanding (‘I make mistakes, but not when it comes to my religion’). This appears inconsistent with his assertions in relation to his offending behaviour, in that he mistakenly misinterpreted the information available to him. In my opinion, I would consider having realised that planning to commit a terrorist attack (in which innocent Australians may have been killed) was an incorrect interpretation of his religion would have been a significant mistake on Mr Benbrika’s behalf. In my mind, his apparent religious grandiosity appears to have limited the development of any insight into this. It is unclear how Mr Benbrika plans to reconcile this difference and one which he likely needs to be processed with an appropriate religious representative. It doesn’t appear that this has occurred to date.[40]

[39]Ibid [29].

[40]Ibid [31].

Ms Dewson set out the claim made to her by the defendant of his beliefs being challenged after reading a text by a scholar for whom he had great respect, Abdel Kader-Abdul Aziz in about 2014. The text indicated the defendant would be exempt from his religious obligation to avenge in Australia the perceived oppression of Muslims overseas because such actions would be contrary to the laws of this country. Ms Dewson stated that it was her impression that the defendant was condemning violence in Australia not as a result of any moral objection, but due to external constraints.

The defendant described his wife, whom he had married when he was 32, as being very religious, but denied that she had any knowledge in the past of his extreme views, and denied she harboured such beliefs herself. Ms Dewson opined that in view of the circumstances of his past offending when he had seemingly deceived her as to his offending, and the attitudes he held about gender roles, his wife, whatever her beliefs, would be unlikely to act as a protective factor to mitigate any offending in future.

Ms Dewson noted that in response to his intensifying extremist views in the lead up to the offending, the defendant became associated with people who harboured extremist views or tolerated his ideology, such connections being fostered in the local mosque. Information suggested that he had maintained contact with people considered unlikely to assist him to more moderate religious views. He did not take responsibility for the refusal of parole and showed a lack of insight into his risk and the potential impact of his behaviour upon others.

Ms Dewson expressed the view that the social connections of the defendant are highly significant to his risk of recidivism and should be a treatment target in future. In particular, he will need to challenge his belief that he is religiously obligated to provide support to people regardless of how concerning their beliefs are. She stated:

Given the entrenched beliefs in this regard, along with his desire to act as a nexus between youth at risk and religious leaders, this will likely require a significant shift to ameliorate any future risk.[41]

[41]Ibid [43].

Ms Dewson considered the account of the defendant to suggest a history of depression, particularly during his period of solitary confinement between 2014 and 2016. He was on antidepressants at the time of their conversation.

After the interview, Ms Dewson requested that the defendant complete a number of psychometric tests. Through no fault of his own, the defendant was not able to access these tests prior to the first report being finalised.

In respect of his personality, Ms Dewson noted the defendant to present with grandiose sense-of-self, specifically in relation to his religious achievements. He displayed rigid thinking and presented with what she described as ‘a pervasive pattern of maladaptive personality constructs, which appear to impact his functioning’.[42]
[42]Ibid [49].

Discussing the index offending in a matter-of-fact way, the defendant admitted his offending constituted a ‘very serious crime according to the laws of the land’, asserting that he had accessed the ‘right material’ but had formed a ‘wrong interpretation of appropriate studies’. His incarceration, he claimed, was noble, because he deserved it. He explained the rationale for his crimes. He felt aggrieved that Australian forces had been sent to Afghanistan to fight Muslims, and he believed he needed to do something about it. He said he felt compelled to:

avenge our brothers and punish the Government. And the people of Australia. They are part of them. They elect a government to act for them. And they then take soldiers into Iraq.[43]

[43]Ibid [55].

He confirmed that in the past, he had considered that the use of violence to influence political decisions was ‘OK’.[44]
[44]Ibid [55].

Ms Dewson saw no sign of remorse from the defendant, although some regret for the personal impact of his offending upon himself and his family. He described his offending as ‘just talking’,[45] and presented with a lack of insight into the financial and social cost of his behaviour to the community.
[45]Ibid [56].

Ms Dewson noted that the incarceration of the defendant had not been without incident, setting out a summary of his incidents in the custodial setting which have included some acts of verbal and physical aggression. The defendant had been classified as a ‘Major Concerns’ offender due to his interactions with other prisoners and concerns as to his ideology. She also noted the parole assessment report in 2017 which stated that:

the difficulties faced in monitoring this management plan in a custodial environment provides insight into challenges associated with monitoring conditions that could be placed on Mr Benbrika and influence he has over individuals in the community.[46]

[46]Parole Assessment Report – Commonwealth, 4 September 2017, p 4.

In the circumstances, Ms Dewson considered the defendant’s capacity to cooperate with supervision in the community to be untested and as a result, unknown.

Ms Dewson dealt with the defendant’s involvement with clinicians from the MOU from 22 February 2017 and his participation in CISP. In the circumstances, it is unnecessary to set out Ms Dewson’s summaries of these interactions, beyond what she had to say about the defendant’s progress in CISP in the 12 months preceding the report:

…there is insufficient information in which to state with any confidence that Mr Benbrika has made significant progress in the past 12 months. That is not to say that progress hasn’t been made, but rather that in my mind, any evidence of such hasn’t been clearly communicated to date. With the caveat around the information in mind, of interest within the case notes, is Mr Benbrika’s critical opinion of the United States and their Government, his criticism of the CISP consent form and conditions of participation, his general dismissal of the Australian Courts, his belief that Muslims living in a non-Muslim country is generally not permissible, and, that he has reportedly lost trust in many Sheikhs as a result of his incarceration and perceived treatment therein. Further, there is consistent information that Mr Benbrika plans to provide religious guidance to people upon release, which despite apparent feedback around this, appears to be dismissive of any risks associated with it.[47]

[47]Ibid [69] (citations omitted).

In respect of his plans for release, the defendant expressed a desire to catch up with his children and provide for himself first. As for the prospect of a CDO, he disputed its utility, describing himself as a changed man. He said, ‘I want the Government to give me a chance. They can cut my wings. They can watch me. But give me a chance’. In that regard, Ms Dewson expressed her view that in light of the fact that the index offending occurred when the defendant knew himself to be under surveillance, little weight could be given to the protective capacity of the defendant being watched in moderating his behaviour and reducing risk.

In addition, Ms Dewson noted that in the interview, the defendant discussed his grievances against the Government and CV, the latter of whom had, according to him, treated him unfairly and engaged in subtle yet malicious acts against him.

Turning to her risk assessment of the defendant, Ms Dewson commenced by explaining the rationale of risk assessments generally, and the difference between static and dynamic factors. She sounded a note of caution about the practice of risk assessment. In particular, she noted that given the base rate of some offending is relatively low, the prediction of such behaviour is difficult. This is especially so in respect of violent extremism risk assessments, the base rates for such offending being ‘distinctly low’.[48] Ms Dewson stated that whilst research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such structured assessments is moderate only. Therefore, decisions about risk are best made with multiple sources of data available, with a formal risk assessment being only part of the available data.
[48]Ibid 76.

Ms Dewson used two instruments to measure risk in the case of the defendant. These were the Level of Service/Case Management Inventory (‘LS/CMI’) and the Violent Extremism Risk Assessment – Version 2 Revised (‘VERA-2R’). Ms Dewson has been trained and accredited in the use of both tools, and is experienced in their implementation. She has used both in respect of assessments carried out for matters under the NSW high-risk offender legislation relating to terrorism offending.

The first tool mentioned is designed to measure risk of general offending. The results of the use of the LS/CMI indicated the defendant’s risk rating for general offending is low.

As for the VERA-2R, Ms Dewson described it as a structured professional judgment protocol using relevant indicators for violent extremism. The indicators, she said, ‘are supported empirically by research, and it uses mostly dynamic indicators that correspond to the process of radicalisation to extreme violence’.[49] Assessments are time-sensitive, with ratings based on the current state of the individual.
[49]Ibid [81].

Ms Dewson set out summaries of the various indicators of the tool, along with the relevance of these to the situation of the defendant. Following her analysis of that material, she stated:

In considering all the information available to me, Mr Benbrika is assessed as a High risk of violent extremism. It is my opinion that Mr Benbrika continues to present a risk of violent extremism and that there is insufficient evidence to suggest that his treatment engagement and release plans are sufficient to ameliorate this recidivism risk. Specifically, these risks relate to his ongoing motivation to associate with people who hold extremist views and belief that supporting ‘at risk’ people as a religious obligation; grievances towards religious leaders within the community and the capacity for this to cause him to become religiously isolated; ongoing (if not increased) grievances towards Australian government (or sections of); continued rejection of parts of a democratic society; cognitive inflexibility; grandiose self-perception; and poor understanding and empathy for people outside of his group.[50]
Mr Benbrika is yet to progress through the classification system within custody, as a result of his aberrant behaviour and initial resistance for treatment engagement. He has consistently expressed confusion around his lack of progression, electing to externalise blame rather than self-reflecting and identifying his own shortcomings. This is likely caused by his understanding that all beliefs, behaviours and actions must be based on religious principles…
In the case that Mr Benbrika is released at this point, there are concerns that he will return to associating with people who hold extremist views, and in this context facilitate beliefs and attitudes that justify the use of violence…The primary concern for Mr Benbrika is his capacity to influence, indoctrinate and radicalise others who view him as a learned Islamic elder…Further, as it stands, it appears that his plans for release are much the same as the conditions in which he lived at the time of offending. Mr Benbrika has a history of fabricating/withholding information, which may make it difficult for his personal supports to identify and mitigate risk factors.[51]

[50]Ibid 106.

[51]Ibid [106]-[108].

In the section of her report entitled, ‘Conclusion and recommendations’, Ms Dewson opined:

Whilst Mr Benbrika formed religious views during childhood, his dedication to Islam intensified during adulthood and after moving to Australia at age 29. With time on his hands due to unemployment, he appears to have engaged in self-directed religious education, within which he began to adopt an extreme interpretation of his ideology. As a perceivably well-educated religious man, this appears to have facilitated a strong sense of entitlement and grandiosity, although it is possible that these personality characteristics were evident earlier in his history. Regardless, he appears to have drifted away from moderate Islam after having interpreted it his religious duty to avenge his brothers and punish the people and government of Australia. Through his study, he appears to have found sufficient religious evidence to support his interpretation of Islam, denouncing the beliefs of those who offer a differing opinion. In the absence of knowledge around contemporary Islam, it appears that he had difficulty reconciling these differences in interpretation, facilitating rigid beliefs.
Whilst Mr Benbrika has verbalised a commitment to abide by Australian laws in the future, motivation to abstain from offending is only one aspect of a complex puzzle that is criminal behaviour. He should be commended for the positive changes made thus far, although, in my opinion, continues to present with outstanding treatment needs, giving rise to his current risk rating.[52]

As the Court observed:

The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable. [170]

[170]Ibid [117].

The Court held:

Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[171]

[171]Nigro (n 153) [6].

The Court further stated:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[172]

[172]Ibid [130].

These observations have been adopted and applied by this Court in relation to the Serious Offenders Act 2018 (Vic).[173]
[173] See, for instance, Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722; MTE (No 2) [2020] VSC 356; Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707; Secretary to the Department of Justice and Community Safety v SS [2019] VSC 60.

In NSW v Naaman (No 2),[174] the NSW Court of Appeal said of the relevantly similar s 20(d) of the THRO Act (which provides that the Supreme Court may make an extended supervision order if, amongst other things, the Court is ‘satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order’) that it is ‘forward looking’ and that it will be ‘relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct’. The Court observed in relation to whether a risk is or is not ‘unacceptable’ that even if there is a slim probability of the offender committing a terrorist act, that risk may be unacceptable having regard to the consequences of such an act. Similar views have been expressed by a number of single judges of the Supreme Court of NSW considering cases under the THRO Act.
[174][2018] NSWCA 328.

In Ceissman (No 2),[175] Rothman J in discussing the meaning of ‘unacceptable risk’, stated:

A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm. The unacceptability of risk balances the likelihood of ‘the risk’ and the seriousness of the outcome of its realisation. Thus, as the seriousness of the harm which may eventuate increases, the required degree of likelihood of the risk manifesting required to overcome the threshold of ‘unacceptability’ decreases.
The Court is required to evaluate that equation and to be satisfied to a high degree of probability that the defendant poses an unacceptable risk: State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. The onerousness of the order on the defendant, if the order be onerous, or the interference with the liberty of the individual, is not a factor that is to be considered in determining whether there is an unacceptable risk.[176]

[175]Ceissman (No 2) (n 165).

[176]Ibid [33]-[34].

In Nigro, the Court of Appeal observed:

Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.[177]
[177]Nigro (n 153) [124] (citations omitted).

The safety and protection of the community; s 105A.8(1)(a)

The first matter outlined in s 105A.8(1) to which the Court is required to have regard is the safety and protection of the community, which is unsurprising bearing in mind the sole object of Division 105A set out in s 105A.1.

Mr Walters submitted that whilst this part refers to the community’s safety from the commission by the defendant of serious Part 5.3 offences, it is not so confined. The community is also made safer, and protected, by the rule of law and by the confidence the community holds in the rule of law. Weight should be given to the terms of the sentence imposed by the trial judge. The community is made safer, and protected, by adherence to the norms of international law, and by the common law presumption in favour of the liberty of the subject. Further to the above, Mr Walters submitted that the concept of rehabilitation is implicitly contained within the words of s 105A.7(1)(b) and encompassed in s 105A.8(1)(a).

Ms Orr emphasised that the current legislation does not expressly articulate a rehabilitative purpose, its sole express object being to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk. That stands in contrast to the legislation considered by the Court of Appeal in Nigro and to the NSW THRO legislation. Ms Orr submitted that this does not mean that rehabilitation of the offender is not relevant. In a number of respects,[178] the provisions do expressly contemplate the relevance of rehabilitation. As Ms Orr put it, Parliament clearly turned its mind to the role of rehabilitation in this scheme, giving it a very specific and identified role in respect of the assessment of unacceptable risk. It was implicit in Ms Orr’s submissions as I perceived them, however, that the pursuit or fostering of rehabilitation should play no role when the safety and protection of the community is being considered as one of the matters under s 105A.8(1).
[178]Sections 105A.8(1)(e), 105A.6(7)(d) and (e), 105A.4(2)(a) the Code.

I think Mr Walters read too many unwritten words into ss 105A.7(1)(b) and into s 105A.8(1)(a). The stated purpose of the legislation is clear, and the safety and protection of the community is to be achieved, where appropriate, by the continuing detention of terrorist offenders who pose an unacceptable risk of reoffending. The question of whether an offender has rehabilitated is clearly relevant to the overall question whether he or she will pose an unacceptable risk,[179] but the focus in s 105A.8(1)(a) is not on rehabilitation.
[179]Section 105A.8(1)(e) the Code.

The defendant’s prior terrorism offending; s 105A.8(1)(g)
The views of the sentencing court; s 105A.8(1)(h)

The considerable seriousness of the defendant’s prior offending is amply demonstrated, to my mind, by the reasonably lengthy summary of the offending and reasons for sentence of Bongiorno J set out in this judgment.

Mr Walters submitted on behalf of the defendant that although his offending was serious, as reflected by the sentence, the offending did not get very far, and that indeed, the defendant was at a fairly early stage of the continuum of offending. He described the offending as ‘inchoate’, in that no victim or target was identified or injured. He submitted that the offending was nowhere near as serious as would have been the case if some actual harm was done to someone. He submitted that the future risk posed by the defendant is informed by the fact that even after a period of 18 months of offending, the defendant, who engaged in a good deal of procrastination, did not get to the point of hurting anyone.

In my view, those submissions underplay the seriousness of the defendant’s past offending. When the ongoing offending of the defendant was interrupted by his arrest in November 2005, he was not at an early stage in the continuum of his offending, and nor would it be correct to say that he had not got very far in that offending. He had recruited, organised and indoctrinated a group of young men, imbuing or seeking to imbue in them a fanatical hatred of non-Muslims, and a willingness to contemplate shocking crimes aimed at the heart of the democracy which had been the defendant’s home for much of his adult life and in which all seven of his children had been born and raised. This was no momentary lapse. He had pursued his criminal aims for 18 months.

In sentencing the defendant, Bongiorno J considered that the conduct of the defendant had created a significant risk that a terrorist act would be committed in this community.

Insofar as Mr Walters submitted that the future risk posed by the defendant is informed by the fact that he did not physically hurt anyone by his offending, I do not believe that fortunate fact to be an appropriate measure by which to assess the risk the defendant would pose should he still harbour the malevolent beliefs which governed his conduct at the time of his offending. At the time of his offending, it is clear that the defendant represented a very real danger to the safety of the community. It was only the intervention of law enforcement authorities which prevented potential mayhem and tragedy.

A further submission made by Mr Walters, based on his analysis of the criminality of the defendant indicated above, was that the risk posed by the defendant now is less than that posed by him 15 years ago. There is a live issue in this case whether the defendant still harbours the extreme beliefs and thoughts which drove his actions in the past. If, in the end, a consideration of the evidence indicates that that question should be answered in the affirmative, then the mere passage of time since his original offending, and the fact of that offending having not led to an actual terrorist attack, would in no way justify Mr Walter’s submission.

Have the extremist beliefs and attitudes of the defendant changed?

Ms Orr submitted, correctly in my view, that the question of whether or not the defendant’s ideology has truly changed is at the heart of the risk posed by him, and therefore at the heart of the case itself.

That is not to say that the determination of this question will determine the case, because no matter what the current views of the defendant may be, the validity of the assessments of risk carried out by the plaintiff’s experts is very much in question, as is the matter of the availability of less restrictive measures than a CDO to prevent the risk.

An important starting point in contemplating this question is a consideration of the extreme and powerful nature of the beliefs which drove the criminal conduct of the defendant during his offending, and the circumstances in which these beliefs arose. The defendant was a mature person who, from the time of his arrival in this country many years earlier, had embraced his religion and pursued his study of it zealously and single-mindedly. As indicated above, his crimes were not the product of some moments of carelessness or lack of judgment. His was well-organised and executed conduct driven by very powerful feelings and beliefs which had him perfectly willing to perpetrate extreme and outrageous crimes in the name of his faith.

It is notable that by the time he was sentenced more than three years after his arrest, by which time he had had ample opportunity to reflect upon his conduct, he not only had taken no step to renounce his commitment to violent jihad, but had actively pondered the continuation of the jemaah in custody.

The evidence would well entitle the conclusion that until at least 2014, nine years after he was charged, when he claims that he first became aware of the treaty or rule which would absolve him of the obligation to wage jihad in this country, he had travelled no significant distance on the path to de-radicalisation.

In my view, a whiff of implausibility hangs around the claim later made by the defendant that in 2014, as a result of reading a particular work by an Islamic scholar, he realised the error of his thinking, and resolved to put aside his previously strong desire to pursue violence in the name of Allah.

First, it strikes me as highly unlikely that a person such as the defendant, with his narcissistic personality traits and well-developed sense of religious and intellectual superiority and infallibility, would have been moved, either instantaneously, or over time, to embrace the views of another which were so contrary to his own views which had so occupied his mind for many years.

Secondly, the failure by the defendant to reveal this critical change in his ideology for a period of three years after its asserted occurrence speaks strongly as to the falsity if his eventual claim. In the interim, the defendant had numerous opportunities to reveal the change. All along, he would have clearly realised the importance of doing so as soon as he could. He must have fully understood that his adherence to his past extremist ideology was concerning to the authorities and would be a roadblock to his future prospects of parole.

Thirdly, the timing of the defendant’s first proclamation of his changed ideology is itself very telling. It occurred a mere two weeks after parole had been refused for the first time. Seemingly out of the blue, and three years after his epiphany, this convenient claim was aired for the first time.

Fourthly, there is evidence which tends to establish that despite his claim, the defendant maintains his belief in violent jihad, and continues to reject the laws of Australia in a number of ways. As asserted by Ms Orr, many aspects of the evidence, including the notes of the clinical and [redacted], the parole assessment interviews, and the interviews conducted by Ms Dewson, Dr Mischel and Dr Davis, support this proposition. The defendant has refused to renounce jihad, and as asserted by Dr Davis, has engaged in a good deal of mental gymnastics to justify this. Furthermore, he has advanced a new meaning of jihad which entirely flies in the face of the meaning he attributed to the concept at the time of his offending.

Fifthly, there is, as Ms Orr submitted, ample evidence of the defendant’s willingness and inclination to be deceitful in order to meet his objectives.

Sixthly, the defendant’s claim as to his changed ideology and when and how it occurred conflicts with evidence showing his awareness of the so-called covenant or treaty during the period of the index offending. In spite of the submission of Mr Walters to the contrary, it is implausible that some different concept was being discussed in 2004 and 2005.

Ms Orr submitted during her opening to the Court that the defendant’s claim of changed ideology is not genuine and should be rejected, being no more than a convenient fiction created by the defendant shortly after he was first denied parole in an effort to persuade the authorities to release him.

I accept those submissions. I am satisfied that the defendant has not renounced or changed his previous beliefs which justified terrorist violence in the name of Allah.

I have reached that firm view without the need to have regard to the opinions of Ms Dewson, Dr Mischel, and to an extent, Dr Davis which would themselves lend some support to that conclusion. On my own analysis of the evidence, I am satisfied that the claimed change of heart by the defendant is a fabrication by him.

The problematic associations maintained by the defendant

Being satisfied, as I am, that the defendant to this day still harbours the extremist views which so governed his behaviour in the past, and bearing in mind the clear evidence pointing to his strong belief in his own infallibility and importance as a religious figure, and his willingness to impart his knowledge and beliefs to others, his continued contact over many years with persons of national security interest is unsurprising. Another matter which no doubt contributed to this is the status the defendant seemingly maintains in some segments of the Islamic community. He has often made it clear that he expects that were he to be released, people in the community would seek him out for guidance and wisdom. There are indications in the evidence which would tend to support the correctness of his view.

The steady stream of problematic individuals visiting the defendant in prison for many years after his incarceration, in some cases seemingly facilitated and aided by his two eldest sons, was only brought to a halt by the actions of the authorities.

To my mind, the continuing desire and willingness of the defendant to maintain these associations is an important matter pointing to the risk he may pose in future should he be released from custody.

The personality structure of the defendant

Another matter pointing to the degree and nature of the risk the defendant poses has already been touched upon. From the totality of the evidence, including the circumstances of the index offending, the way in which he has handled himself since his custody commenced, the things he has said to clinicians and to [redacted] over the years, the psychological testing carried out upon him, and the opinions of the three expert psychologists who examined him and gave evidence before the Court, it is apparent that the defendant has a personality structure and a view of himself and his place in the world and the community to which he would seek to return which raises real concerns as to the risk he may pose should he be permitted to do so.

Ms Dewson described the defendant’s apparent religious grandiosity and his grandiose sense of self, and noted his own description of himself as being driven by ideology. Dr Mischel noted his narcissistic personality style, ‘which includes grandiosity, inflated sense of self-importance’ and his need for excessive admiration. She remarked upon his apparent belief of being ideologically, religiously and morally superior to all others, with an obligation to guide and influence others to adopt his doctrine. She considered him to be motivated by religious and moral superiority. Dr Davis, too, noted the grandiosity displayed by the defendant. All of them noted the rigidity of his thinking, and his unwillingness to be swayed by others.

It seems to me that the personality structure of the defendant, insofar as the Court can understand it, coupled with his ongoing extremist beliefs, speaks volumes as to the risk posed by the defendant to the safety of the community. That is so without any reliance on the expert opinions before the court in which that risk has been assessed. I turn to that expert evidence now.

The expert evidence as to assessment of risk

In this case, two highly qualified and expert psychologists gave evidence to the Court of their assessment of the risk posed by the defendant. Ms Dewson found him to continue to pose a high risk of violent extremism. She assessed him as a high risk of committing a serious offence should he be released into the community. The primary risk the defendant poses, she considered, concerns his capacity to influence, indoctrinate and radicalise others. Dr Mischel found the defendant to fall within the high-risk category of committing a serious Part 5.3 offence. Again, in her case, she considered the risk posed by the defendant to relate to his ability to influence others as a religious leader within his Muslim community.

Both of these experts used the VERA-2R tool as part of their process of carrying out their risk assessments. Their use of that tool was at the heart of the attack launched upon their evidence by Mr Walters, supported by the strong view of the defendant’s expert witness, Dr Davis, that the tool is not appropriate for use in the assessment of risk of violent extremist offending.

I note at the outset, however, that there was a lot more to the evidence of Ms Dewson and Dr Mischel than mere blind reliance upon the VERA-2R.

In my view, there is no doubt that Ms Dewson and Dr Mischel are highly qualified and very experienced experts in the field of risk assessment for violent extremist offending. That there is such a field is clear enough, albeit that the particular field is a relatively new one.

The assertion of Mr Walters that Dr Davis is ‘a lot more expert than either Ms Dewson or Dr Mischel’ is difficult to accept in the circumstances, in light of their proven experience in the specific area of the carrying out of risk assessments in the violent extremist domain, and the fact that to this day, Dr Davis has never carried out such an assessment. That is not to diminish the considerable expertise of Dr Davis in the field of risk assessment more generally, which is well known to this Court.

Dr Davis in his evidence showed a distinct lack of regard, bordering on contempt, for the VERA-2R. For reasons he spelt out clearly, he does not believe this tool to be a legitimate one for use due to its lack of predictive validity as a result of the very low recidivism rate for extremist offending. In that respect, his opinions differ from those of Ms Dewson, Dr Mischel and other experts whose evidence in respect of the use of that very tool has been accepted for some years in the Supreme Court of NSW.

Furthermore, Dr Davis expressed the strong view that there is no valid way of assessing extremist risk. In the circumstances, I cannot accept that evidence. So to do would be to conclude that there could never be evidence meeting the description of the reports and evidence countenanced by s 105A.8(1)(b) and (c) of the Code. That cannot be so.

I am left with the impression, with all due respect to Dr Davis, that his misgivings about the VERA-2R may have clouded his view as to the impossibility of assessing extremist risk. Implicit in his evidence seemed to be the proposition that without an actuarial risk-assessment tool of the type he described, no form of risk-assessment in a particular field would be possible. That surely cannot be correct. It is possible to envisage many situations in which an appropriately qualified expert, equipped with all of the available evidence and data about an individual, and armed with the product of a long interview carried out with the subject, would be able to assess the magnitude of a particular risk posed by the subject without being able to rely on the results of an actuarial risk-assessment tool.

Indeed, looking logically at the evidence of Ms Dewson and Dr Mischel, it is apparent that quite aside from the results of the VERA-2R each of them administered, each had access to a vast array of material which, in their expert hands, would be capable of throwing real light on the question of the risk posed by the defendant of future extremist offending. As I said before, the results of the VERA-2R were only a part of the overall picture, a picture which to them, was a very clear one.

As I see it, the shortcomings of the VERA-2R, which were openly acknowledged by each of the plaintiff’s expert witnesses, do not mean that it is not a useful tool for use in an overall assessment of risk. Both Ms Dewson and Dr Mischel considered it to be so. It has been accepted as such by numerous judges of the Supreme Court of NSW. In the circumstances, I can see no reason why it was not appropriate for this tool to be used as part of the structured professional judgment which each of Ms Dewson and Dr Mischel considered they had carried out in this case.

Ms Orr submitted that each of the plaintiff’s expert witnesses approached the task of risk assessment in this case pragmatically, applying their clinical judgment and using an appropriate assessment tool. I accept that submission.

In the case of Dr Mischel, I make the additional point, as was made by Ms Orr, that her extensive experience with the defendant over the years placed her in a strong position to know him and assess the risk he poses. I further consider that the particular position in which she found herself in carrying out the risk assessment of having been a long-standing clinician to the defendant, may have meant she was not independent, but did not impinge on her ability to provide an accurate risk assessment. Indeed, it would have enhanced it.

In the end, what was important in these risk assessments carried out by Ms Dewson and Dr Mischel were not the results spat out by an infallible tool, but the product of their expert clinical judgment upon the vast mass of material at their disposal, including the results of the VERA-2R.

I accept the evidence of Ms Dewson and Dr Mischel as to the risk assessments they conducted. I am required to take those assessments into account pursuant to s 105A.8(1) of the Code in deciding whether the defendant poses an unacceptable risk. I propose to do so.

I make the observation that the two experts called by the plaintiff reached their clear opinions as to the high risk posed by the defendant without relying on a concluded view as to the validity or truthfulness of his claimed change in ideology, although they did express some misgivings as to the legitimacy of his position. When I come to consider the question whether the plaintiff has satisfied me that the defendant poses an unacceptable risk, as well as being able to have resort to the strong opinions of the experts as to the risk posed, and all of the other evidence, I will contemplate the matter in the knowledge of my concluded view, expressed earlier, that the claimed change of ideology by the defendant is nothing more than a fiction.

As for the reports and evidence of Dr Davis, as he clearly conceded, he did not carry out an assessment of the risk of the defendant committing a serious Part 5.3 offence. In those circumstances, I would not be required to take his evidence into account pursuant to s 105A.8(1)(c). As acknowledged by Ms Orr, that does not mean that I would not have regard to the reports and evidence of Dr Davis. I would do so under s 105A.8(1)(i) to the extent that other relevant information is included.

There is a good deal of that. Dr Davis had a lot to say about the personality type and attitudes of the defendant which would be relevant to the risk he poses. His evidence would tend to confirm the extent to which the defendant places his own religious knowledge and standing above those of others. He considers himself to be a self-proclaimed Sheikh. He derives satisfaction from his status as a Sheikh, which according to Dr Davis, feeds his narcissism. Dr Davis indicated that the defendant informed him that the cessation of the visits he previously received from many people and the exchanges of mail between him and others, had come about as a result of the actions of CV, rather than through his own choice. The defendant apparently told Dr Davis that he is pretty good at getting people to do what he wants, which he can accomplish because, ‘word of God they trust’. The evidence of Dr Davis would tend to confirm the reality that the defendant still feels no remorse for his previous criminal actions, feeling that at the time he had simply been doing his job. Dr Davis indicated, also, that on his perception of it, the defendant was a ‘challenging’ participant in CISP, that he likely would be in future, and that his apparent unwillingness to engage in CISP in future is a potential concern, as is the continuing desire of the defendant to proselytise in the community. Dr Davis confirmed that the defendant still has a belief in the concept of 72 virgins waiting for him in paradise after his death. Dr Davis indicated that when he asked the defendant whether he would inform authorities if he learnt of a terrorist plot, the defendant replied that he would try to convince the actors to stop. It was the opinion of Dr Davis that the defendant ‘was trying to find a balance between his newfound ideology and following his previous rigid rule that he should never inform against fellow Muslims’. Dr Davis confirmed that in his conversations with him, the defendant stated that he could not renounce violent jihad. He indicated that the defendant’s narrative suggests that he ‘engages in considerable mental gymnastics in order to keep his various rules coherent’. Indeed, Dr Davis stated at one point during his evidence that the defendant ‘has got this weird thing where he believes in jihad but not being violent’. Importantly, Dr Davis made it clear that he was not saying that the defendant poses a low risk.

Touching on the evidence of the plaintiff’s experts, Dr Davis did not challenge the proposition that there was an association between the indicators used in the VERA-2R and violent extremist offending.

As already indicated, Dr Davis did not carry out a risk assessment of the defendant. He considered that the best that could be done in the case of the defendant was to refer to factors present in his life when he committed the index offences and seek guidance from these, in what he termed an ‘anamnestic’ approach. The features he highlighted would, he considered, provide a ‘speculative indication’ as to whether the risk of inciting others into extremist behaviour is imminent. Dr Davis made it clear that by imminent, he meant ‘within the very short-term…within the first couple of weeks of somebody being released’.[180]
[180]Transcript 636.

It should be noted that in no way is it the Court’s task to determine whether there is an unacceptable risk of the imminent commission by the defendant of a serious Part 5.3 offence if he released. There is no temporal requirement to the finding.

Dr Davis expressed the view that there would be no way of assessing the defendant’s risk of terrorist offending unless there was something so blatant that it could overcome the low recidivism rate, in which there would be a ‘common sense override’. Ms Orr criticised this common sense approach, but submitted that even if such an approach was taken in the case of the defendant, there is a blatant risk in his case of his committing a further terrorism offence.

I am not to be taken as suggesting that the decision of this Court would be made on such limited material, but it does seem to me that there are a number of features of the defendant’s presentation and circumstances which, taken in combination, would lend support to the assessments of risk made by Ms Dewson and Dr Mischel. Some may consider these features, in combination, to be blatant, in the sense in which that term was used by Dr Davis.

Fifteen years after his arrest for terrorism offending, the defendant exhibits no real signs of regret or remorse for his actions. He maintains the same extremist views which governed his offending and led to his incarceration, in spite of all efforts to shift them. He has developed an even more over-inflated sense of his worth and importance as a religious leader. He continues to feel an obligation to impart his knowledge and beliefs upon others, and harbours the strong desire and a clear willingness to do precisely that. After all these years of incarceration, the defendant still occupies an important place in the hearts and minds of a sector of his community, a matter of which he is acutely aware, and from which the narcissistic aspects of his personality obtain succour.

The defendant has a proven track-history of using his position of moral and religious authority or leadership in the community to form a dangerous organisation which had at its core a belief in the validity and desirability of wreaking violence in support of an extreme view of religion, no matter what the consequences. There is nothing to indicate that the personality features or extreme views which led to this occurring have changed or diminished. Indeed, there may be further risk factors which have arisen or been magnified by the passage of time and the experiences of the defendant during that long period. For one, he may have an even more negative view of the system and the government which he sees as responsible for his long incarceration.

Does the defendant pose an unacceptable risk?

In considering this question, I have had regard to all of the matters to which I am required to have regard under s 105A.8(1) of the Code. I have considered all of the evidence before the Court, and the submissions made. Importantly, I have taken into account the assessments of risk carried out by each of Ms Dewson and Dr Mischel. I have had regard to the statements of authority as to the practical meaning of unacceptable risk.

At the conclusion of her submissions to the Court, Ms Orr submitted:

The plaintiff's position is the defendant was at the time of his offending, and remains today committed to a violent extremist ideology, an ideology that justifies the use of violence in the name of religion. He was and is an influential leader who has no plans to stop teaching and proselytising his ideology. He has made no commitment to continue with the deradicalisation program in which he has participated in recent years if he is released into the community; a deradicalisation program of course in which he has failed to meet his treatment goals. The risk that he will, if released, radicalise others again or that he will guide and encourage people who are already radicalised to engage in acts of terrorism is real and extremely significant for the Australian community and we say it is clearly an unacceptable risk.[181]

[181]Ibid 811.

I accept those submissions. I am satisfied to a high degree of probability, on the basis of admissible evidence, that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community.

Is there any less restrictive measure that would be effective in preventing the unacceptable risk?

I have carefully considered the evidence and submissions touching on the question of whether or not the plaintiff has satisfied me that there is no other less restrictive measure that would be effective in preventing the unacceptable risk posed by the defendant.

Three possible measures were raised for consideration. One of them, the prospect of 24 hour surveillance being carried out by the police upon the defendant, would be so inadequate and unworkable as to not warrant the label of ‘measure’.

As to the other two, namely, the control order which would come into effect in interim form should I decline to make a CDO, and the third option, namely, the cancellation of the defendant’s non-citizen visa with the subsequent implications of that action, whilst each possesses some superficial attraction, when the overall circumstances of this case are considered, and the virtues and drawbacks of each of the proposed measures are weighed in the mix, it is apparent that neither measure would be effective in preventing the risk posed by the defendant.

Largely for the reasons advanced in detail by Ms Orr during the hearing, I am satisfied that there is no other less restrictive measure that would be effective in preventing the risk posed by the defendant in this case.

Should the Court exercise its discretion in favour of the making of a CDO?

I turn, finally, to the question of whether or not, having reached the above findings, I should proceed to make the CDO which the findings would entitle me to make.

As already indicated, Mr Walters relied upon the decision of the Minister for Home Affairs in making a determination to cancel the defendant’s citizenship on 20 November 2020 as being a matter which should lead the court to decline to make a CDO. It was submitted that an evidentiary vacuum exists as to the practical risk scenario should the defendant be deported to Algeria. This, so the submission went, was a situation of the plaintiff’s making, and the Court was now being asked to overlook the consequences of this. It would not be a proper exercise of the Court’s discretion to make the order sought by the plaintiff, so the submission went.

I do not accept those submissions. In my view, the considerations relied upon would not be a proper reason to decline to make a CDO in circumstances where I am satisfied of the matters contained in s 105A.7(1)(b) and (c).

No case was drawn to my attention in which a court has declined to make a CDO on discretionary grounds when the statutory criteria have been satisfied. I do not need to ponder the circumstances in which that might properly occur. Suffice to say, this is not such a case.

Before I conclude, I consider it appropriate to return to a submission made by Mr Walters at the end of his final submissions to me in this case, in which he emphasised the serious step constituted by the making of a CDO. He said:

The power should only be used in very clear, and we would say, indeed blatant cases, and we say that this case is an unsatisfactory amalgam of suppositions and suspicions. There's no sound scientific risk assessment, there's no expressed intention to commit any relevant crime. Mr Benbrika served his full sentence, including the non-parole period in accordance with the sentence imposed by Bongiorno J, and for the reasons that we've advanced, your Honour, he shouldn't be committed to prison further.[182]

[182]Ibid 726.

It follows from what I have said earlier in this judgment that I do consider this case to be a very clear one for the making of a CDO. I do not accept that the case can be characterised in the way advanced by Mr Walters. Nor do I consider that there is any deficiency in the evidence. To my mind, the evidence was comprehensive and compelling, pointing inescapably to the correct outcome of this case.

In my view, the plaintiff’s case has been clearly made out to the requisite standard. The only appropriate course is for the Court to make a CDO.

As for the duration of the CDO, the maximum period is 3 years. The evidence does not suggest that the unacceptable risk posed by the defendant will dissipate or be otherwise prevented at any particular point during this period. In the circumstances, the CDO will be for a period of 3 years, commencing today.

Conclusion

The Court orders that the defendant, Abdul Nacer Benbrika, be subject to a continuing detention order under s 105A.7(1)of the Criminal Code Act 1995 (Cth) (‘the Code’)

Pursuant to s 105A.7(4) of the Code, the continuing detention order will be in force for a period of 3 years commencing today, 24 December 2020, and concluding on 23 December 2023.

The effect of the order pursuant to s 105A.3(2) will be to commit the defendant to detention in a prison for the period the order is in force.

I note that by operation of law, the plaintiff will be required to apply to the Supreme Court for a review of the continuing detention order before 24 December 2021.[183]
[183]Section 105A.10(1A) and (1B) the Code.

[2020] VSC 888

24 December 2020