State of New South Wales v BP (Preliminary)

[2019] NSWSC 699

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v BP (Preliminary) [2019] NSWSC 699

Hearing dates:

3 June 2019

Date of orders:

14 June 2019

Decision date:

14 June 2019

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) On the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be referred to in relation to the preliminary hearing in these proceedings only by the letters “BP” and his name is not to be published in relation to the preliminary hearing in these proceedings.

 

(2) Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017, the Court:
(a)   appoints a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
(b)   directs the defendant to attend those examinations.

 

(3)   Access to the Court’s file in this proceeding to a non-party is permitted only with the prior leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

 

(4)   The matter is to be listed for further oral submissions on what conditions should be imposed under an interim supervision order on 20 June 2019 at 10 am.

 

(5)   Liberty is granted to the parties to apply on one days’ notice if difficulties arise with the implementation of order 1.

 (6)   The Court directs the defendant to provide to the plaintiff a document setting out which of the conditions proposed by the plaintiff to be included in any supervision order he objects to and the basis for the objection by 12:00nn on 18 June 2019.

Catchwords:

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – threats of extreme violence against police and other officers – limited history of actual violent offending – potential political or ideological elements but extent unclear – orders for examination made – orders restricting access to the file without prior leave of the Court made

Legislation Cited:

Commonwealth Criminal Code
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health Act 2007 (NSW)
Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
Attorney General for New South Wales v Winters [2007] NSWSC 611
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6, [1952] HCA 32
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Cornwell v Attorney General of NSW [2007] NSWCA 374
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Misrachi v The Public Guardian [2019] NSWCA 67
NSW v Ceissman [2018] NSWSC 508
R v Alou (No. 4) [2018] NSWSC 221
State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008
State of New South Wales v Naaman (No 2) [2018] NSWCA 328
State of New South Wales v Sturgeon [2019] NSWSC 559
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
BP (Defendant)

Representation:

Counsel:
Ms K Richardson SC and Mr S Dametto (Plaintiff)
Mr S Prince SC and Ms F Graham (Defendant)

  Solicitors:
Ms S Tasneem (Plaintiff)
Ms R McMillian and Ms H Le (Defendant)

File Number(s):

2019/149123

Publication restriction:

On the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be referred to in relation to the preliminary hearing in these proceedings only by the letters “BP” and his name is not to be published in relation to the preliminary hearing in these proceedings.

Judgment

1. By a summons filed 13 May 2019, the plaintiff, the State of New South Wales, seeks an extended supervision order (ESO) under ss 20 and 25(1)(a) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act) against the defendant, orders for the examination of the defendant under s 24(5) of the THRO Act and the imposition of an interim supervision order (ISO) under s 27 for a period of 28 days, as well as an order restricting access to the file.

2. The preliminary hearing, as required by s 24(4) of the THRO Act, took place on 3 June 2019.

Pseudonym application

3. At the outset of the preliminary hearing, the defendant sought an order that his name not be published or broadcast in these proceedings and that he be referred to by a pseudonym. Initially, this application was put on the basis of s 162 of the Mental Health Act 2007 (NSW) (MH Act). After some discussion between counsel, Mr Prince of Senior Counsel, who appeared with Ms Graham for the defendant, indicated that he no longer relied upon s 162 but pressed the application on the basis of, among others, s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act). He also sought the opportunity to put on further submissions in writing and, in the meantime, an interim pseudonym order.

4. Ms Richardson of Senior Counsel, who appeared with Mr Dametto, for the State, very properly indicated that the State would consent to the making of an interim pseudonym order to allow submissions to be made and considered.

5. In these circumstances and in order to permit proper consideration of the basis for making a pseudonym order, on 3 June 2019 I made, with the consent of both parties, an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 that the defendant in this matter be referred to as “BP”, subject to revocation by the Court at any time. I also ordered that the order was to be effective until the application for a pseudonym order was determined.

6. Short further submissions were made by both parties. The State neither consented to nor opposed the making of an order that the defendant be referred to by a pseudonym. Nonetheless, it provided helpful submissions in order to assist the Court.

7. Section 162 of the MH Act does not, on its terms, empower this Court to make a pseudonym order. It is in the following terms:

“(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) to whom a matter before the Tribunal relates, or

(b) who appears as a witness before the Tribunal in any proceedings, or

(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990,

whether before or after the hearing is completed.

Maximum penalty:

(a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or

(b) in the case of a corporation—100 penalty units.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.”

8. Nor does that section prohibit this Court from publishing or broadcasting the name of a person to whom a matter in the Mental Health Review Tribunal (MHRT) relates. As Dixon CJ observed in a different, but not entirely unrelated context, “courts … would hardly be called persons”: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6, [1952] HCA 32.

9. In this case, the defendant is the subject of a forensic community treatment order made by the MHRT. Section 162 can be seen as evincing a legislative sensitivity to publication or broadcasting of the identity of persons to whom matters before the MHRT relate but it does not require an order prohibiting publication or broadcasting in relation to proceedings in this Court: applying by analogy the reasoning of Bell P and Emmett AJA in Misrachi v The Public Guardian [2019] NSWCA 67 (Misrachi) at [16] and [17].

10. Noting the legislative sensitivity evinced by s 162 of the MH Act, the defendant also raised s 8(1)(c) of the CSNPO Act as a basis for the making of the pseudonym order, submitting that the “safety” of the defendant included his mental well-being or safety, which was likely to be compromised by the publication of his name in connection with these proceedings. Section 8(1)(c) provides:

“A court may make a suppression order or non-publication order on one or more of the following grounds:

…

(c) the order is necessary to protect the safety of any person,

…”

11. In the context of the CSNOP Act, the principle of open justice is to be given effect to unless the “relatively onerous requirements” of s 8 are met: Misrachi at [11] and [13]. Consistently with this, “necessary” in s 8 is a concept that transcends that which is “convenient, reasonable or sensible”: Misrachi at [11]. Nonetheless, what is “necessary” in relation to a particular paragraph of that section may vary depending on the purpose to be served: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [46] (Basten JA, Bathurst CJ and Whealy JA agreeing); [2012] NSWCCA 125.

12. In relation to s 8(1)(c) the appropriate approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [56]-[58] (Hoeben CJ at CL, Price and Adamson JJ); [2019] NSWCCA 46.

13. In this case, there is evidence as to the instability or fragility of the defendant’s mental state, his recent diagnosis of schizoaffective disorder and how this may affect his sense of grievance with law enforcement and the legal system. I am satisfied that these have been, at least, some of the factors which have led to his offending in the past. Ms Terry, forensic psychiatrist, said that it is possible that his grievances are accentuated by his mental illness. In the circumstances, if publication of his name led to other persons taking action against, or commenting to, the defendant concerning his conduct, it could adversely affect his mental well-being to a significant extent. In addition, the defendant has made extremely offensive religious comments, which are referred to in more detail below, which could, if publicly associated with the defendant, attract retaliation or perceived retribution, and this would also have the potential very seriously to endanger the defendant’s physical safety.

14. The pseudonym order proposed in the present case is quite limited and would not involve any restriction other than not referring to the defendant by his name in the preliminary hearing and his name not being published in relation to the preliminary hearing. Whether a further pseudonym order should be made at a later stage of proceedings might be a matter that could be addressed in any reports by a psychiatrist or a psychologist if examination orders are made under s 24(5) of the THRO Act. The limited nature of the order is a matter that can be taken into account in assessing whether the particular order is necessary in all the circumstances.

15. Although it is finely balanced, I am satisfied that, at least for the purposes of the preliminary hearing, an order that the defendant in these proceedings be referred to only by the letters “BP” and that his name is not to be published in relation to these proceedings is necessary within s 8(1)(c) of the CSNPO Act.

Background

16. The defendant is a man in his thirties who is currently serving a term of imprisonment expiring on 7 July 2019. He was due to be released to statutory parole on 7 January 2019, but on 13 December 2018 his statutory parole order was revoked by the State Parole Authority.

17. The defendant has an extensive history of assaulting and intimidating Police officers and other officers in the execution of their duty as well as certain somewhat limited acts of violence. He also has a poor custodial history including threats of very serious violence towards Corrective Services officers, particularly female officers.

18. The defendant was diagnosed with schizoaffective disorder earlier this year.

19. In these circumstances, the State has brought the application for an ESO under the THRO Act. In order to permit a properly informed consideration of that application, orders have been sought under s 24(5) of the THRO Act for the appointment of a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations of the defendant and to provide reports to the Court on the results of those examinations and directing the defendant to attend the examinations. Further, to allow the examinations to be conducted and the reports to be provided while ensuring that the community is adequately protected from any unacceptable risk of the defendant committing a serious terrorism offence after his release on 7 July 2019, the imposition of ISO for a period of 28 days from 7 July 2019 has been sought, under s 27 of the THRO Act.

20. The purpose of the preliminary hearing on 3 June 2019 was to consider the State’s application for examination orders and an ISO. As to the order restricting access to the file, I did not understand that the making of this was opposed and it appears appropriate in the present case.

21. In order to address the issues that arise on this preliminary hearing, it is necessary to review the relevant statutory provisions of the THRO Act and the applicable principles.

Relevant statutory provisions

22. The THRO Act permits this Court to make orders either detaining or supervising certain offenders beyond the expiration of their sentence if they pose an unacceptable risk of committing a serious terrorism offence following their release. Although the legislative scheme is in some respects similar to the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act), there are also certain differences. Section 16 of the THRO Act explains some aspects of how that Act is intended to interact with the HRO Act.

23. The objects of the THRO Act are set in s 3 as follows:

“(1) The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage these offenders to undertake rehabilitation.”

24. Thus, the THRO Act is directed to protecting the community from serious terrorism offences and not other types of offending, no matter how serious.

Serious terrorism offences

25. Section 4 of the THRO Act defines “serious terrorism offence” as an offence against Pt 5.3 of the Commonwealth Criminal Code (the Code) for which a maximum penalty of seven or more years of imprisonment applies. Various terrorism offences are established in a number of sections of Divs 101, 102 and 103 of Pt 5.3 of the Code. These offences include, by way of example:

1. under s 101.1, engaging in a terrorist act, for which the maximum penalty is imprisonment for life;

2. under s101.6, doing any act in preparation for, or planning, a terrorist act, for which the maximum penalty is imprisonment for life.

26. A “terrorist act” includes not only action but also threating action. The expression is defined in s 100.1 of the Code as meaning:

“an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.”

27. Subsections (2) and (3) of s 100.1, which are referred to in the definition of “terrorist act”, are in the following terms:

“(2)  Action falls within this subsection if it:

(a)  causes serious harm that is physical harm to a person; or

(b)  causes serious damage to property; or

(c)  causes a person’s death; or

(d)  endangers a person’s life, other than the life of the person taking the action; or

(e)  creates a serious risk to the health or safety of the public or a section of the public; or

(f)  seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)  an information system; or

(ii)  a telecommunications system; or

(iii)  a financial system; or

(iv)  a system used for the delivery of essential government services; or

(v)  a system used for, or by, an essential public utility; or

(vi)  a system used for, or by, a transport system.

(3)  Action falls within this subsection if it:

(a)  is advocacy, protest, dissent or industrial action; and

(b)  is not intended:

(i)  to cause serious harm that is physical harm to a person; or

(ii)  to cause a person’s death; or

(iii)  to endanger the life of a person, other than the person taking the action; or

(iv)  to create a serious risk to the health or safety of the public or a section of the public.”

28. Although par (a) of the definition of “terrorist act”, and s 100.1(2) and (3), refer to “action” and not threats of action, those provisions are to be understood as defining the parameters of “action” whether actual or threatened: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [34]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44].

29. A “terrorist act”, referred to in various offences against Pt 5.3, has the “intention” elements specified in pars (b) and (c) of the definition in s 100.1. The Code relevantly explains “intention” for these purposes in s 5.2(3) as follows:

“A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

30. The THRO Act seeks to protect against the risk posed by an offender of committing a serious terrorism offence by two principal means: continuing detention orders or CDOs, and extended supervision orders or ESOs. ESOs and ISOs are dealt with in Pt 2 of the THRO Act. CDOs, and interim detention orders or IDOs, are governed by Pt 3 (ss 33-49).

31. The summons in the present proceedings does not seek a CDO or an IDO but only an ESO and an ISO. At the preliminary hearing, the Court is only considering the application for an ISO and examination orders. Consequently, attention can be focused upon the provisions in Pt 2 of the THRO Act, ss 19-32.

Extended and interim supervision orders and examination orders

32. Section 20 of the THRO Act provides that the Court may make an ESO in certain circumstances. Where an application for such an order is made, s 24(4) provides:

“A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.”

33. Following the preliminary hearing required under s 24(4) in proceedings for an ESO, orders for examination of a defendant by a psychiatrist and a psychologist and the provision of reports to the Court can be made under s 24(5). In addition, an ISO can be made under s 27 at the same time as the examination orders, if the requirements in s 27(a) and (b) are met.

34. Sections 24(5) and 27 contain, amongst other things, the same test which must be satisfied before the orders under those sections can be made, namely whether the making of an ESO would be justified, on the assumption that the matters alleged in the documents supporting the application have been proved.

33. Section 24(5) provides:

“If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the eligible offender to attend those examinations.”

36. It can be noted that, if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the making of the order for examinations and reports is mandatory. There is no discretion to refuse to make the orders. The situation concerning making an ISO is different. Under s 27, if the Court is satisfied of various matters, including that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court has a discretion whether or not to make an ISO.

37. Section 27 is in the following relevant terms:

“The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

38. As to the prerequisite in s 27(a) in the present case, if the defendant is to be examined by a psychiatrist and a psychologist and reports are to provided to the Court so that the application for an ESO can be determined on a properly informed basis, I am of the view that, given the likely time the examinations and provision of reports would take, the defendant’s custody, which comes to an end on 7 July 2019, would expire before the proceedings are determined. Thus, the requirement in s 27(a) would be satisfied in this case, if it were determined that examination orders should be made.

39. Consequently, the principal question that must be determined, under both ss 24(5) and 27(b), on this preliminary hearing, is whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO under s 20 of the THRO Act. Section 20 establishes four preconditions for making of an ESO. For the purposes of the present proceedings, s 20 provides:

“The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if:

(a) the offender is in custody …:

(i) while serving a sentence of imprisonment for a NSW indictable offence, or

…, and

(b) an application for the [extended supervision] order is made in accordance with this Part, and

(c) the Supreme Court is satisfied that the offender is any of the following:

…

(iii) a convicted NSW terrorism activity offender, and

(d) the Supreme 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.”

40. It was not in dispute that the statutory criteria in s 20(a) and (b) are satisfied. Accordingly in the present case, it is only necessary to consider the prerequisites in pars (c)(iii) and (d) of s 20.

Convicted NSW terrorism activity offender

41. Section 20(c)(iii) requires the Court to be satisfied that the defendant is a “convicted NSW terrorism activity offender”. That expression is defined relevantly for present purposes in s 10 as follows:

“(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender:

…

(c) the offender:

(i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or

…

(1A) Without limiting subsection (1)(c):

(a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following:

…

(iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and

…

(2) Subsection (1)(b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

...”

42. Section 7 of the THRO Act provides that an “eligible offender” is a person who is 18 years of age or older and serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a New South Wales indictable offence. I accept that the defendant in the present case is an “eligible offender”.

43. Although the expressions “violent extremism” and “ideology” may, in some cases, have a role to play in determining whether an eligible offender is a convicted NSW terrorism activity offender, those expressions are not defined or explained in the THRO Act. In this regard, it can also be noted that subs (1A) of s 10 provides an extended inclusive definition of “advocating support for a terrorist act or violent extremism” which may be relied upon to establish that a person is a “convicted NSW terrorism offender”.

44. Furthermore, in s 11 there is a list of matters that the Court may take into account in determining whether an eligible offender is a “convicted NSW terrorism activity offender”. The list is as follows:

“(a) the views of the sentencing court at the time the offender was sentenced for the offender’s offence, and

(b) the views of the sentencing court at the time a person other than the offender was sentenced for an offence if the person was a co-accused of the offender or was convicted of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit the offender’s offence, and

(c) evidence adduced in the proceedings for the offender’s offence or in proceedings against another person for an offence referred to in paragraph (b), and

(d) any relevant terrorism intelligence, and

(e) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in the State or elsewhere), and any pattern of offending behaviour disclosed by that history, and

(f) the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the offender’s history of behaviour (including any patterns in, or the progression of, that behaviour to date), and

(g) any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody), and

(h) any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender’s associates and affiliations, and

(i) information indicating that current or former associates of the offender have been or are involved in terrorism activities, and

(j) any other information that the Court considers relevant.”

45. If a Court is satisfied that an offender satisfies the prerequisites in s 20(a), (b) and (c), then it must also consider whether the test in s 20(d) has been met, before an ESO could be made.

The required satisfaction under s 20(d)

46. Section 20(d) requires the Court to be:

“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”.

47. When determining whether an ESO should be made, this test is to be applied bearing in mind not only that the paramount concern must be the safety of the community, by virtue of s 25(2), but also the factors set out in s 25(3)(a) to (m).

48. Section 21 of the THRO Act provides that, for the purposes of Part 2, the Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.

General principles concerning s 20(d)

49. While there have now been a number of decisions considering the THRO Act, there are also numerous decisions of this Court concerning the HRO Act and similar legislation. Where the same statutory language is used, guidance may be obtained from those decisions concerning other Acts but care must be taken to consider any relevant differences between the context, scope and purpose of the THRO Act and those of the other Acts.

50. The standard of proof required in s 20(d) of the THRO Act, by the words “high degree of probability”, is a higher standard than “more probably than not” but not as high as “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] and [55]-[58].

51. The expression “unacceptable risk” in s 20(d) of the THRO Act is not defined in the Act. It is to be given its everyday meaning in its context and having regard to the objects of the THRO Act (which have been set out above): Lynn at [58]. The test of whether an offender poses a relevant unacceptable risk is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82]. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].

52. The evaluation of whether the risk is “unacceptable”:

1. is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: Lynn at [61];

2. involves balancing considerations of the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales vSimcock(Final) [2016] NSWSC 1805 at [71]; and

3. must take into account, under s 25(2), the safety of the community as the paramount concern and the factors in s 25(3)(a) to (m).

53. Deciding whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk does not involve determining the probability of the existence of the risk or the likelihood of its manifestation, but rather the probability that the offender poses such an unacceptable risk: NSW vCeissman [2018] NSWSC 508 (Ceissman) at [32] (Rothman J); Cornwell v Attorney General of NSW [2007] NSWCA 374 at [21].

Principles applicable to a preliminary hearing

54. As noted above, when an application for an ESO is made, a preliminary hearing is required to be conducted within 28 days after the filing of the application, unless an extension of time is granted: THRO Act s 24(4). From s 24(5), it appears that one function of the preliminary hearing is to enable the Court to obtain appropriate and recent psychiatric and psychological reports in respect of the defendant so that a properly informed decision can be made at the final hearing concerning whether to make an ESO. These reports are mandatory considerations to which the Court must have regard, under s 25(3) of the THRO Act, when determining whether to make an ESO.

55. Further by virtue of s 27(a), if it appears that the defendant’s current custody or supervision will expire before the application for an ESO can be determined, an ISO can be made, if the test in s 27(b) is met.

56. In the present case, the applications for examination orders and for an ISO were dealt with at the preliminary hearing, conducted in accordance with s 24(4). If orders for examinations and reports to be provided are made, the defendant’s current custody will expire before the application for the ESO can be determined. This circumstance is not uncommon and the provisions of ss 24 and 27 of the HRO Act appear to be designed to deal with it in a practical and efficient manner.

57. The nature of the preliminary hearing and the nature and purpose of examination orders and ISOs are important, as they provide a significant part of the context in which the provisions of those sections are to be construed. As has already been noted, the test in s 24(5) and 27(b) which must be satisfied before examination orders or an ISO can be made is whether the Court “is satisfied” or “it appears to the Court”:

“that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

58. The words “would … justify the making of an [ESO]” are capable of imposing a higher or a lower test to be met. They could require the Court to be satisfied that an ESO should actually be made, in the light of the matters alleged. Alternatively, those words might require satisfaction of a lesser standard, that the power to make an ESO could be enlivened, having regard to the matters alleged.

59. In my view, ss 24(5) and 27 should be construed so as to permit, so far as is reasonable, an application for an ESO to be properly prepared, with up to date and properly informed psychiatric and psychological assessments, and the community to be appropriately protected from the potential for unacceptable risk in the short-term, by an ISO, while the Court considers whether an ESO should be made. For this reason, and given the purposes of ss 24 and 27 and the context of the phrase, the words “would … justify” in ss 24(5) and 27(b) should be construed as requiring the Court to be satisfied that the making of an ESO would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming them to be proved. Whether such a conclusion would be reasonably open depends on the prerequisites in s 20(a), (b), (c) and (d) being arguably satisfied to such an extent that it is appropriate to require the offender in question to be examined by psychiatrists and/or psychologists to assess the nature and extent of any relevant risk posed by the offender.

60. If the Court reaches that required state of satisfaction for the making of examination orders after a preliminary hearing, there is also a discretion under s 27 that enables the Court to consider whether the protection of the public, which is the paramount consideration when determining to make an ESO, also requires the making of an ISO, while the examinations are conducted, the reports are provided to the Court, the State and the offender prepare their evidence and the application for the ESO is heard and determined.

61. The Court of Appeal has endorsed a construction of ss 24(5) and 27 that involves a “lower standard” in determining whether to grant interim orders compared to the standard that is to be applied when determining whether to make an ESO under s 20 of the THRO Act. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328, the Court said at [17]:

“Broadly speaking, the [THRO] Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order. There is no necessary inconsistency between the interim orders made in August and September 2018 and the dismissal of the State’s application for an extended supervision order following a final hearing by the primary judge.” (emphasis added)

62. That the test on a preliminary application under the THRO Act is a “low one” was also accepted by N Adams J in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44].

63. Substantially the same approach has been recently adopted in State of New South Wales v Sturgeon [2019] NSWSC 559, where Garling J was considering an application for an IDO and examination orders at a preliminary hearing under the HRO Act. At [6], it was held:

“The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. ...” (emphasis added)

64. This approach is also consistent with the principle that in considering whether to make interim orders, such as the ISO in the present case, it is appropriate to give weight to risk-avoidance: Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J).

65. Bearing in mind these provisions and principles, I turn to consider the principal issues for determination.

Principal issues

66. Adopting the approach referred to above and given that it is not in dispute that the requirements of s 20(a) and (b) are satisfied, the principal issues are whether, on the assumption that the matters alleged in the supporting documentation are proved, it is reasonably open for the Court to be satisfied:

1. that the defendant is a convicted NSW terrorism activity offender: s 20(c)(iii); and

2. to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order: s 20(d).

The evidence

67. The supporting documentation on which the State relied was:

1. the affidavit of Amay Tembe of 10 May 2019 together with exhibit AT – 1;

2. the affidavit of Craig Stockwell of 17 May 2019;

3. the affidavit of Shawana Tasneem of 22 May 2019 together with exhibit ST – 1;

4. a risk assessment report of Mr Ardasinski of 24 August 2018; and

5. a risk assessment report of Ms Terry of 8 April 2019.

68. The defendant relied on:

1. the affidavit of Hayley Le of 31 May 2019;

2. the affidavit of Todd Davis of 31 May 2019; and

3. the affidavit of the mother of BP of 31 May 2019.

69. The State objected to all of the defendant’s affidavits substantially on the basis that the material relevance on a preliminary application was limited to the supporting documentation of the State. While the Court is required to proceed in determining whether an ESO would be justified on the basis that the matters alleged in the supporting documentation are proved, it does not follow, in my view, that the defendant’s evidence is not relevant on other issues such as whether, in the exercise of the Court’s discretion, an ISO should or should not be made and what conditions should be imposed as part of any ISO. Consequently, the defendant’s affidavits were allowed to be read, but only for the purpose of consideration of:

1. the exercise of the discretion under s 27 of the THRO Act, if the power to make an ISO was enlivened, and

2. what conditions should be imposed as part of any ISO, if it was decided to make such an order.

70. The findings set out below concerning the defendant and whether the Court must or may make orders under ss 24(5) and 27, respectively, are based on the matters alleged in the State’s documentation supporting its application, on the assumption that they have been proved.

The defendant’s background and criminal history prior to the index offences

71. The defendant was born in 1984 and is of Fijian/Indian and Anglo-Australian heritage. He was raised in Sydney. He claims to have been the product of an extramarital relationship of his mother and to have been raised by her in a stable home, taking on his stepfather’s name as a child despite his stepfather having little to do with his upbringing. His parents separated when he was a teenager. The defendant formally changed his surname from that of his stepfather some years ago. He attended school until year 10 and has worked in various unskilled labouring roles. There is a history of binge drinking but no substantial history of other drug use.

72. His most relevant violent or threatening offending prior to the index offences can be summarised as follows:

1. In October and November 2006, stalking or intimidating with intent to cause fear of physical or mental harm, when the defendant was in a domestic relationship with the victim. Each time the victim tried to end the relationship she was subjected to death threats. For this offending, the defendant was fined.

2. In May 2007, intimidating and assaulting a Police officer in execution of duty without actual bodily harm, when the defendant, in the company of an associate who was stopped at a train station for a routine drug and dog search, hindered Police officers carrying out their duty, yelled obscenities at them and said “… You’re dead when you finish work tonight”. For these offences he was fined.

3. In June 2007, knowingly contravening a prohibition/restriction in an order, when the defendant went to his ex-girlfriend’s workplace and, when asked to leave, made threatening gestures towards the victim and threatened and punched one of the victim’s male colleagues. For this offending the defendant was subject to a s 9 bond for 12 months.

4. In October 2007, destroying or damaging property, intimidating Police officers in the execution of duty without actual bodily harm and hindering Police in the execution of their duty, when the defendant was arrested for breaking windows in a hair salon. He became extremely aggressive shouting obscenities and threatening the arresting Police, damaging property in the Police station, attempting to head-butt one officer and attempting to bite another as well as threatening to slice an officer’s throat and kill him and “butcher” another officer into “mince” by way of retribution. He said “I will plan [the killing] for 10 years if I have to do, I’ll slice your head off… I will make it my objective to kill you… I will kill you, I’ll plan it”. For these offences the defendant was ordered to perform 100 hours of community service, fined and placed on a s 9 bond for 18 months.

5. In March 2008, intimidating Police in the execution of duty without actual bodily harm, resisting an officer in the execution of his duty, behaving in an offensive manner in or near a public place, when the defendant was driving and stopped and asked a person who was working on his car in front of his house whether he liked Indians. The defendant eventually said that he wanted to fight the person, who declined, having seen a knife in the defendant’s hand. The person called a friend, the victim, to help. The defendant drove his car at the victim mounting the curb and followed the victim as he ran away. The defendant made death threats to the victim, whom the defendant called “you dirty Arab”. He participated in an electronically recorded interview in which he indicated his antipathy towards “the Arab race”. For this offending the defendant was subject to a s 9 bond for three years and fined.

6. Later in March 2008, affray when the defendant was involved in a fight with two men at a shopping centre. For this offending the defendant was sentenced to 12 months’ imprisonment commencing on 19 March 2009.

7. In October 2008, destroying or damaging property to a value of less than $2000 and assault in a domestic violence context when the defendant was angry and caused substantial damage to the interior of the premises where he lived with his mother, smashed various items of furniture and threatened, on the telephone, to kill and to punch his mother, while he was intoxicated. For this offending the defendant was sentenced to 12 months’ imprisonment suspended on entering into a s 12 bond for 12 months.

8. In November 2008, intimidating a Police officer in the execution of duty without actual bodily harm and using offensive language when the defendant was ejected from a hotel and made death threats against the security guard and against the Police, while intoxicated. For this offending, the defendant was sentenced to imprisonment for 18 months commencing on 19 March 2009.

9. In November 2009, assaulting a Police officer in the execution of duty causing actual bodily harm, other assaults and behaving in an offensive manner when the defendant approached two women near a railway station and made obscene remarks. He was arrested but assaulted the arresting Police officer, threatened the plainclothes Police officers saying that they would never be safe on the street. For this offending the defendant was sentenced to 10 months’ imprisonment commencing on 27 January 2011.

10. In November 2011, assault occasioning actual bodily harm when the defendant was allowed to drive a female neighbour’s car, with her as passenger, to get takeaway food but when she refused to let him drive to Brighton Le Sands, the defendant punched her about the head in the car and subsequently punched a person who came to assist her. For this offending the defendant was sentenced to 9 months’ imprisonment.

11. In June 2012, assaulting a law officer not being a Police officer when the defendant was residing at Wollongong COSP centre and punched the manager in the back of the head, after being asked to leave. For this offending the defendant was sentenced to 20 months’ imprisonment commencing on 1 July 2012.

12. In August 2014, intimidating a Police officer in the execution of his duty without actual bodily harm when the defendant came to the attention of Police but was told he was free to go. He threatened Police that he would cut their head off, put a bullet through their head, come to their house with a machete and cut their heads off and that he would find out where they lived and kill or murder them. For this offending the defendant was placed on a s 9 bond for 18 months.

13. In September 2014, using an offensive weapon with intent to commit an indictable offence and affray when the defendant called out to a group of boys playing soccer in a park to fight him. He called them “terrorists” and “terrorist dogs”. After he was chased out of the park, the defendant returned with a short handled knife in his hand but the boys left in a bus. At the Police station the defendant abused Police and other persons calling them “Arab scum” and “terrorists”. For this offending the defendant was sentenced to 18 months’ imprisonment suspended on entering into a s 12 bond for 18 months.

14. In May 2015, intimidating of a Police officer in execution of duty without actual bodily harm when the defendant became irate, refusing to submit to a Police search. He threatened to come to an officer’s house to get retribution and “take [the officer] out”. He said “I’m not afraid to kill anyone”. For this offending the defendant was sentenced to 9 months’ imprisonment commencing on 12 October 2015.

15. In June 2015, common assault, intimidating with intention to cause fear of physical or mental harm and assault occasioning actual bodily harm when the defendant was in a restaurant and was asked to leave because the owner felt intimidated, the defendant pushed and punched the owner in the face. For this offending the defendant was sentenced to imprisonment for 18 months commencing on 25 October 2015.

16. In November 2016, destroying or damaging property behaving in an offensive manner and resisting an officer in the execution of his duty, when the defendant was at Circular Quay and was observed harassing various female members of the public. When Police arrested him for offensive behaviour, he yelled obscenities and threatened that he would kill them, come to their house and cut off their heads, come to the house and put a bullet in their heads, find out where there lived and kill them. He said, among other things, “I will find out where you live. I will kill you, I will kill your wife, and I will kill your kids. Give me your address. I’ll come at 3 am.” For this offending, the defendant was sentenced to 1 months’ imprisonment commencing on 4 November 2016.

17. In April 2017, intimidating and assaulting a Police officer in the execution of duty without actual bodily harm, when the defendant attended Merrylands Police station wanting to complain about two plainclothes Police officers who had dealt with him earlier that day. He was aggressive and threatened to assault them and was asked to leave. He complied. He returned half an hour later and was again asked to leave and again he complied, sitting on a bench across the road from the Police station. As the defendant appeared to be observing returning Police vehicles and officers on foot in order to locate the officers earlier referred to, he was arrested. He made offensive comments and threatened to kill one of the arresting officers, follow one officer home and “chop her up. You know, use a machete and chop her head off”. He suggested that violence was “the only way to get through” to Police. He also said “I have access to a gun. I will come shoot the bitch. I can get her address off the Internet in 45 minutes and organise a[n] ice junkie to do her house over.” For these offences he was sentenced to 14 months’ imprisonment commencing on 26 April 2017.

73. Some of the threats and occasional violence referred to in the preceding paragraphs occurred in a context where the defendant had made comments indicating that he was Indian and that he had some animosity towards Arabs, “White people”, Asians and females.

The index offences

74. The defendant was released to parole on 25 March 2018. At the relevant times, he was subject to a firearms and weapons prohibition order. The index offences occurred less than two weeks later while on conditional liberty.

75. At about 6:15 pm on 7 April 2018, the defendant was seen loitering at the front of Merrylands Police station, which was where the previous offending in 2017 had occurred. He appeared to be using his mobile telephone and was pacing near the steps that led to the foyer area. He was approached by Police in uniform and queried as to why he was at the location. He became aggressive and said “I do not target Police, I target individual officers.” He was searched and given a “move on” direction and left the area.

76. A short time later the defendant was observed to be in the foyer of the Police station in breach of the direction. He was arrested, cautioned and escorted to a nearby interview room. Once in the interview room, the defendant began lashing out towards officers and OC spray was used to subdue him. The defendant taunted the officers with racist comments concerning “white” and “slope headed” officers as well as violent comments including “I’m going to behead you” and “I will blow up the Police station”. Police commenced an electronic recording during which the defendant made offensive and racist comments and said “I do not target the uniform, I target the individuals” and he stated that he would kill two identified Police officers. The defendant was taken to Parramatta Police station.

77. At Parramatta Police station, a female constable attempting to provide the defendant with a cup of water approached the door of the cell where he was being detained. As she opened the door to hand the water to him, the defendant stood up and forced the door open. He pushed the constable with his left hand to her right shoulder forcing her backwards and enabling him to open the door completely. He then swung his closed fist towards the constable connecting with the left side of her jaw. She stumbled backwards and the defendant took up a fighting stance as other Police came to assist. He was eventually restrained after vigorously resisting. The defendant continued to yell racist and offensive remarks including that he would kill one of the officers and that “I will do it when he is off duty, in the middle of the street, I’ll creep up behind him and open his head up like a pumpkin with a hammer”.

78. As a consequence, the defendant was charged with:

1. assaulting a Police officer in the execution of her duty causing actual bodily harm;

2. refusing or failing to comply with a direction under Part 14;

3. two charges of intimidating a Police officer in the execution of duty without actual bodily harm; and

4. two charges of resisting an officer in the execution of duty.

79. The defendant pleaded guilty and was sentenced in the Parramatta Local Court on 1 May 2018. During the sentencing hearing, the defendant said “I’m not a junkie, I’m a righteous individual” and he indicated he was thinking of moving to Wollongong or even leaving the country and going overseas. The sentencing magistrate recounted the facts which have been summarised above, noted that the offences had occurred while the defendant was on conditional liberty, and that he had by that time “amassed 20 convictions for, collectively speaking, resist officer in the execution of duty; assault officer in the execution of duty; and intimidate officer in the execution of duty, in the last 11 years”. He was sentenced to an effective term of imprisonment of 12 months commencing on 8 April 2018 with a non-parole period of nine months.

Subsequent offending and other conduct in custody

80. While in custody, the defendant made numerous threats to Corrective Services officers, including in particular Ms V, who was an officer at Goulburn Correctional Facility where the defendant was housed.

81. Some of the threats were made using “knock up calls” which is a system by which inmates are able to make calls for assistance from their cells. These calls are intended to be used for medical purposes only and are all recorded by the Correctional Facility.

82. In one call in July 2018, the defendant said:

“… and another thing is there’s only two South Asians here, me and [another inmate] that’s two out of one thousand million of us. It would be very unwise for people to make us South Asians an enemy. … There is one thousand million of us and we are all different, some are tall some are short, some are fat, some are skinny, some are dark, some are light and so on, there is only 24 million people in Australia and of the 24 million, not all of them are white and yet, even though there isn’t that many white people … There is still all different types of people. … If I find out that one of your officers is making false allegations about me trying to put me to shame I don’t care if it’s female I’m gonna murder em. Thank you for your time”.

83. In a number of subsequent calls on the same day the defendant conveyed some or all of a statement that he had written out. The written version was found and was in the following terms:

“When I was at Silverwater the officers were talking sh*t about me, and when I got to Goulburn it followed me, because the officers all talk to one another and pass on information, now when I know a officer has made a false allegation trying to put me to shame, I am going to murder them preferably by blade, being a female is irrelevant, and actually worse due to mostly the females spreading rumours, to cover my self from some possible false claims, I state I am not gay, I am to tacticle to get caught masterbating my clitaireus, I am not phased by being in protection and so on.”

84. In another call approximately 4½ hours and 7 calls after the first call quoted above, he said, among other things:

“The thing is can you tell Miss [V], the f**kin putrid redneck f**kin bitch to keep her head down and all the other feral c**ts out there. If they wanna get cheeky, I’m gonna take this outside the Prison. Mr India will f**kin chop you into f**kin pieces in the middle of the f**kin street. … “

85. The defendant was charged with stalk/harass/intimidate a law officer (not a Police officer) and was sentenced to 12 months imprisonment commencing on 8 January 2019 with a non-parole period of six months. On appeal to the District Court, Hunt DCJ confirmed the sentence but adjusted the commencement date so that the 12 months commenced on 8 July 2018. As a result, the defendant’s current sentence expires on 7 July 2019.

86. In addition while in custody between April 2018 and January 2019, the defendant has made numerous and repeated threats to shoot Corrective Services officers, to rape a female officer and cut her throat, to kill any staff member who makes allegations about him or their children, to put a bullet in Ms V’s head, to cut the head off a female officer, to come back and shoot officers when he got out if he was continually treated in the way he was and to cut up a female officer at the Metropolitan Remand and Reception Centre.

87. During the same period, the defendant said that he had a 9 mm handgun stashed on the outside and he would use it to kill staff or their children. He also said “I’m going to shoot all of them when I get out” and “Who was that rude bitch, she doesn’t have to be rude to me. I’ll take this outside and I’ll find that bitch and cut her into a million pieces, I got a 9 mm and I’ll put one in her head”. At times he also referred to his impending release and that he had a weapon at home.

Potential elements of violent extremism or terrorism

88. The conduct and offending referred to above has, on numerous occasions, involved elements of racism and sexist abuse. He has described Police and Corrective Services officers as “white dog”, “white c**t”, “slope head”, “Arab scum” and ‘”ugly bitch” while threatening violence towards them. On other occasions, he has expressed particular animosity towards females and persons whom he perceived to be of Arab background, not limited to Police or other officers. As noted above, he has also referred to his South Asian or Indian background and the fact that there are one thousand million Indians.

89. He has also referred to “brothers” and his “brotherhood”, sometimes in the context of a violent extremist or terrorist act overseas.

1. In 2014, after being arrested for jaywalking in Parramatta, the defendant said: “What do we have to do? We will target you and use violence against you, to make you pay.” He referred to himself and a brother as part of the superior race. Additionally, he made continued reference to his “brotherhood” and that he and his brothers would come and that they would make “Australian people” pay, referring to Australians as “white scum” and “white dogs”. He also mentioned his “brother” killing “your soldiers in the streets of the UK”, which appeared to be a reference to the murder of British soldier Lee Rigby in London on 25 May 2013. He continued that they have power in England and they would gain the same here in Australia and that there were many of them and Australians did not know or understand. He said that he and his community would make Australians pay for their disrespect. He also said Australians or the Police had no idea who he was and that he was backed by 300 brothers and he would kill the officers who arrested him with his brothers and behead them. He also made comments that when he and his community had the power they would perform beheadings of “white scum”.

1. In April 2018 at Parramatta Police station, he told a Police officer: “my brothers in jail will be told that Police called the prophet Mohammed a faggot and they will want blood for what Police have done” and “the brothers for life will make Police pay and the station will be reduced to rubble”.

2. In October 2018, the defendant used the knock up system and stated that the female staff were disrespecting him at the Mid North Coast Correctional Centre by making lewd comments and that he was going “to get the brothers to stand up against them”.

90. The defendant has commented on terrorism. In 2016 he wrote a letter condemning terrorists, although the thread of the argument appeared to have stemmed from a deep-seated hatred of Middle Eastern people, or Arabs. The letter was entitled “The source of terrorism” and included:

“Physically destroying terrorist is only doing half the job. Phycologically destroying them also will finish the job. It is very simple, show them proof we are much greater than them. And the brainwashing retoric will run out of fuel.”

91. In addition, there is a Facebook page of which the defendant claimed to be the author and administrator, called “The Asian Century”. The Facebook page contained disjointed posts regarding India and China’s successes in technology, bodybuilding, nuclear warheads and chess. The defendant has said that that this page best represents his views regarding religion and culture. There were approximately 350 people who followed the Asian Century Facebook page.

92. The defendant’s attitude towards Islam appears confused and inconstant. In relation to the offending in September 2014, referred to above, he admitted during his interview with Police that he had goaded the youths at the park by yelling “Mohammed’s a paedophile” which he acknowledged was tremendously insulting. During this interview he also made statements about genetics playing a significant role in terrorism. The comments included:

“I know exactly how they are. Like I said to you before … genetics do play a, a major role in a person’s character and behaviour and so on. And um, Arabs are very troublesome people.”

93. In January 2018, the defendant made a knock up call and said:

“You tell your Governor that I’m going to deal with him outside these walls he has been talking sh*t about Mohammed, I’m Muslim I will kill him when I see him you let him know that, I’ll deal with your Governor my way”

When asked whether this was a threat he stated: “Oath it is, he’s not going to get away with this.”

94. When questioned in an interview in relation to that incident, however, the defendant confirmed that he did not consider himself Muslim.

95. In February 2018, while in custody at Wellington Correctional Centre, the defendant reiterated his offensive statement about the prophet Mohammed being a paedophile but attributed this to an officer and maintained that this was the source of the defendant’s grievance against the officer.

Disavowal by the defendant and absence of action on the threats

96. On occasion the defendant has indicated that he would not act on his threats. For example, before Magistrate Miszalski on 20 April 2017, the defendant said:

“Whilst I was arrested for no reason I’m left with the conclusion that the courts are not going to help me, my dignity has been taken away from me and I am probably gunna buy a gun to try to shoot dead the arresting officer.”

97. However, later during this same hearing after the Magistrate had indicated that she was going to make an order under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant denied that there was anything wrong with him and then said:

“Look, your Honour, I’m not going to kill the arresting officer, all right, but I’m upset, I’m upset that I was being arrested for no reason.”

98. Moreover, it can be observed that there has been no apparent follow through on the threats of extreme violence made prior to his present period in custody.

Psychologists’ risk assessment reports

99. The State relied upon two psychologists’ reports, provided for the purposes of s 23(3)(b) of the THRO Act. They were:

1. the report of 24 August 2018 by Mr Ardasinski, forensic psychologist; and

2. the report of 8 April 2019 by Ms Terry, forensic psychologist.

100. Mr Ardasinki first interviewed the defendant on 15 August 2018 and there was a follow-up interview on 21 August 2018. It is recorded that the defendant refused to sign the consent form because he felt the present application was unjustified. He stated to Mr Ardasinski:

“My criminal record proves I am not a high-risk offender and also do not have any terrorism related offences, thus am not a terrorist, which is what they are implying… I’m a logical person, I respect logic. And looking at it from a logical point of view, I do not have any terrorism related offences, thus I don’t meet the criteria…”

101. After reviewing the defendant’s background and offending history and related matters, Mr Ardasinski directed his attention to risk assessment. He noted that the process of risk assessment of violent extremism or politically motivated violence is comparatively new and that the sample size of people who actually engage in terrorist acts would never be large enough to allow the statistical power needed to determine the optimal quantitative combination of risk factor scores or to generate a final estimate of risk that does not rely in substantial part on clinical judgement. He applied the Violent Extremism Risk Assessment – version 2 Revised (VERA–2R), a structured professional judgement approach to the assessment of violent extremism risk. Mr Ardasinki’s conclusion was:

“[The defendant’s] overall risk profile for extremist or politically motivated violence according to a consideration of the risk factors identified in the VERA–2R structured professional judgement was assessed as being in the Low – Moderate range.”

102. In addition to the VERA–2R assessment in relation to violent extremism, Mr Ardasinski also assessed the defendant to be in the category of “high-risk” of violent reoffending using the Violence Risk Appraisal Guide – Revised (VRAG – R) and the Violence Risk Scale (VRS).

103. Mr Ardasinski noted that the defendant had not completed any programs to address his anger or violence at the time of his assessment. In addition it was his opinion that:

“the most recent episode of violence against Police presented evidence of escalation in the violence and a determination of [the defendant] to potentially follow through on his threats against Police”.

104. Nonetheless, Mr Ardasinski commented:

“However, whilst there may be threats made which could be inferred to occur in a terrorism context (i.e. threatening Police officers, threatening to behead an officer, allegedly threatening to bomb a Police station etc.), there is a lack of evidence that such threats are made with the intent of furthering a political goal or motivation; or to protect the rights of a minority-owned disadvantaged group. There is no clear evidence that [the defendant] holds an identifiable ideology which supports the use of extremist violence to justify a ‘larger’ cause. [The defendant’s] justification for his violence against Police is his own personal grievance against reportedly specific individuals. Since he possesses entrenched personality traits that are suggestive of paranoia and narcissism, he sees anyone who opposes him as ‘the enemy’, whether it be Police or CSNSW supervisors, and therefore deserving of his ‘retaliation’. Therefore, whilst [the defendant] may engage in directed violence towards Police, it is unlikely to be with the intent of furthering a greater social or political cause, as is the core intent behind terrorist activity.”

105. As to the defendant’s likely reaction to being subject to an ESO, Mr Ardasinski expressed the view that:

“… The more likely scenario for [the defendant], given his entrenched personality dysfunction and his anti-authority attitudes, is that he would not use the opportunities afforded by ongoing supervision to support his transition to a prosocial community existence – he would fight the ESO and be continually re-imprisoned for breaching it. He may commit acts of violence against his supervising officers due to his perception of the injustice of such an order as relates to him …”

106. Mr Ardasinski expressed concern that the defendant stated to him that:

“I’m a calculating person… If I’m going to do something serious, I won’t tell anyone. That’s just stupid – why would you want to give them a warning for?”

107. Finally, Mr Ardasinski noted that it was “possible” that the risks of the defendant could be mitigated through some other, less intrusive orders, such as an apprehended personal violence order with individual officers named as the protected persons. If no order was imposed, Mr Ardasinski thought that, given his prior history of violence and offending behaviour, it is likely that the defendant would encounter conflict with Police within a short time frame of release which would eventually result in re-incarceration.

108. Ms Terry conducted interviews, in person, with the defendant on 22, 26 and 29 March 2019. Her assessment, however, was based on file review only as she was of the view that the defendant remained unable to provide informed consent to participate in the assessment interviews. She also noted that the defendant had recently been diagnosed with schizoaffective disorder and was currently scheduled and being treated for that illness.

109. Ms Terry noted that there was a general paucity of information or coherence relating to the defendant’s political and/or religious beliefs. He did not appear to demonstrate a significant affiliation or commitment to any ideological cause through rational or sound reasoning but his offending appeared to reflect a consistent theme of interpersonal violence which was underpinned by shifting and at times conflicting attitudes, beliefs and grievances regarding race, gender, authority and religion. She also noted that, whilst these themes may change over time, the nature of the verbal and physical threats and aggressive outbursts have remained relatively consistent albeit escalating in frequency and severity.

110. She drew attention to the Facebook page, “The Asian Century”. She commented that it was difficult to ascertain who the “brothers” referred to on that page were and whether they related to potential extremist religious beliefs although it was observed that there were approximately 350 people who followed the Asian Century Facebook page. Ms Terry also noted the defendant’s apparently inconsistent views in relation to Islam, which have been referred to above.

111. Ms Terry also referred to the VERA-2R assessment but, due to the limited information available and the defendant’s inability to provide informed consent, she made no formal assessment using VERA-2R. Despite these limitations, Ms Terry was of the view that there remain some concerns regarding the defendant’s potential for engaging in extremist violence. In particular she said:

“Further assessment relating to [the defendant’s] views around his Facebook page ‘The Asian Century’ may reveal an overarching ideology, however it is likely that his varying grievances are at least in part attributable to or significantly influenced by his mental health symptoms.”

112. Ms Terry also noted that the defendant’s personal contact with violent extremists or persons affiliated with violent extremists/terrorist organisations was unknown. In her view:

“based on information available it is hypothesised that [the defendant] would have a greater propensity to engage in violent extremism as a lone actor, rather than being part of an organised group or cause.”

113. Ms Terry noted that the defendant appeared to have minimal protective factors, and a number of additional indicators which may exacerbate his risk of violent extremism. In her opinion and on the basis of the information available to her, the defendant’s risk “would remain commensurate with that noted within Mr Ardasinki’s report of being in the Low – Moderate risk range of engaging in extremist violence”.

114. Significantly, Ms Terry commented that “a thorough assessment of violent extremist risk factors following psychiatric stabilisation would be beneficial as there are noted gaps in the information available.”

115. Ms Terry also administered the Terrorist Radicalisation Assessment Protocol (TRAP – 18) which is a structured professional judgement assessment of persons considered to be at potential risk of lone actor or targeted extremist violence. Overall the defendant presented with some of the distal characteristics and there was some evidence of at least one proximal warning behaviour, which would suggest his case “warrants monitoring and intervention around those areas”.

116. Ms Terry noted that the defendant had completed two CSNSW programs relating to his substance abuse in 2012 and 2015.

117. As to the defendant’s mental health, Ms Terry stated:

“file information reflects concerns have been raised regarding [the defendant’s] mental health from approximately 2009, and with increasing frequency since 2015. Previous assessments have also queried the presence of narcissistic and paranoid personality traits. [The defendant] has recently been diagnosed with schizoaffective disorder and has commenced treatment. Stabilisation of [his] mental health may provide for a reduction in his risk of future acts of violence and/or extremist violence in the future and increases the likelihood of developing personal insight into his risk behaviour. However, a thorough assessment of these risks would need to be completed when he is psychiatrically stable to determine the extent to which this is the case. Given the lengthy history of interpersonal aggression and grievances towards others, it is possible that these predate the onset of his schizoaffective disorder or that his grievances are accentuated by his illness. It is also noted that individuals with chronic illnesses such as schizoaffective disorder show fluctuations in mental health in terms of treatment and trajectory over time. This is likely to be further complicated by the presence of difficult personality traits. Should [the defendant] cease contact with mental health and/or engage in substance abuse, it would be expected that his risks would increase.”

118. Ms Terry summarised her position by strongly recommending that “once [the defendant] is psychiatrically stable a comprehensive assessment should occur to further assess and define his risks of general violence and extremist violence, along with more general responsivity factors including personality and cognitive assessment.”

119. I turn now to consider the two principal issues on this application.

A convicted NSW terrorism activity offender

120. The first principal issue is whether it is open to find that the defendant is a “convicted NSW terrorism activity offender”, within s 20(c)(iii) of the THRO Act. The definition of that term in s 10 of that Act has been set out above.

121. The State contended that the defendant was an eligible offender serving a sentence of imprisonment for a New South Wales indictable offence who met the criteria in s 10(1)(c)(i), because he had previously made a statement advocating support for:

1. a “terrorist act”; and

2. “violent extremism”.

122. In further support of the contention that the defendant had advocated support for a terrorist act or extreme violence, the State also relied upon s 10(1A)(a)(iii) which provides that:

“advocating support for a terrorist act or violent extremism includes (but is not limited to) … making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism”.

123. It can be noted that s 10(1)(c) applies regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere): THRO Act, s 10(2).

124. The State submitted, at par 70 of its written submissions, that the nature of the defendant’s threats, and the language used by the defendant mean that his statements fall within the extended definition of “advocating support for … violent extremism” in s 10(1A)(a)(iii). This submission should be accepted.

125. It is certainly reasonably open to find that the type of violence which the defendant has threatened on many occasions, such as killing Police and other officers and their families, beheadings, slitting throats, using a machete or a blade to kill people, is the kind of violence promoted by persons, groups or organisations who support terrorist acts or violent extremism. Ms Terry (at par 61 of her report) gave evidence that threats such as beheadings, bombings, slitting throats and finding and killing family members are commonly associated with terrorist acts. In addition, Johnson J in R v Alou (No. 4) [2018] NSWSC 221 (Alou) at [2] and [3]; 330 FLR 402 accepted that killing a civilian employed by the New South Wales Police Force was a terrorist act promoted by a “fanatical terrorist organisation”. Mr Ardasinski noted that “threatening Police officers, threatening to behead an officer, allegedly threatening to bomb a Police station etc” could be inferred to occur “in a terrorism context”.

126. Thus, relying on the inclusive definition in s 10(1A)(a)(iii), it is reasonably open to find that the defendant has previously made statements advocating support for violent extremism, within s 10(1)(c)(i). Accordingly, it is unnecessary to consider the alternative submissions as to whether the defendant has previously made actual statements advocating support for a “terrorist act” or “violent extremism”. Nor is it necessary, when the inclusive definition in s 10(1A)(a)(iii) is satisfied, to consider in detail the factors identified in s 11 of the THRO Act.

127. Since he is also an eligible offender and is serving a sentence of imprisonment for a NSW indictable offence, it follows that it is at least open to find that the defendant is a convicted NSW terrorism activity offender.

128. Accordingly, I am satisfied that it is reasonably open to find that the requirement in s 20(c)(iii) of the THRO Act has been satisfied for the purposes of the preliminary hearing and the making of the examination orders and consideration of an ISO.

Unacceptable risk

129. The fourth requirement, found in s 20(d) of the THRO Act, which must be satisfied to enliven the power to make an ESO is that the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

130. For the reasons set out above concerning the construction of the words “would … justify” in ss 24(5) and 27(b), for the purposes of the preliminary hearing and the applications for examination orders and an ISO the State is only required to establish that it is reasonably open for the Court to be satisfied to the requisite standard of the matters in s 20(d).

131. The relevant risk is the risk that the defendant poses of committing a serious terrorism offence. A serious terrorism offence, as explained above, includes engaging in a terrorist act in contravention of s 101.1(1) for which the maximum penalty is imprisonment for life.

Submissions

132. Relying on Mr Ardasinki’s and Ms Terry’s reports and the other supporting documentation, the State effectively put its case, in this regard, on the basis that the defendant posed a risk of committing a terrorist act, as defined in s 100.1, either by action, or threat of action, that causes serious physical harm to, or death of, a person, done or made with the intention of:

1. advancing a political, religious or ideological cause; and

2. coercing, or influencing by intimidation, the government of the State, which includes a part of the executive government such as the Police Force or Corrective Services NSW.

133. The defendant submitted that he has never been convicted of any terrorism offence and his relevant convictions were for offences against Police officers and Corrective Services officers committed in a reactionary manner either at about the time of his being apprehended or while in custody. It was contended that he had done nothing with the intention of advancing a political, religious or ideological cause or with the intention of coercing or influencing by intimidation a government. This was illustrated by reference to a number of examples from the matters alleged in the supporting documentation.

133. It was also emphasised, on the defendant’s behalf, that he has long-standing vulnerabilities as a result of poor mental health. It was submitted that the evidence did not support the conclusion that the defendant’s threats of violence predated the onset of his schizoaffective disorder. The defendant had a history of expressing fears in custody and seeking to be placed in protection. There were numerous indications of mental health issues from before 2018 and of deteriorating mental health during his current term of imprisonment since April 2018. He was referred for psychiatric assessment on 27 April, 17 August and 9 November 2018 especially in relation to threats to female staff. His paranoia appeared to continue to deteriorate after that time. The defendant was eventually diagnosed with schizoaffective disorder in late February 2019, when he was scheduled for involuntary treatment and began receiving medication for his condition. It was also noted that the defendant has not engaged in conduct of the kind relied upon by the State on this application since his condition has stabilised as a result of receiving treatment for his disorder. In May 2019, the MHRT made a forensic community treatment order in respect of the defendant to ensure that he complied with medication and had available safe and effective care.

134. In addition to the risk posed by the defendant abating with appropriate mental health treatment, the defendant also contended that he could be appropriately managed by the MHRT by way of a community treatment order (CTO) on release. This was submitted to be a preferable course because it would avoid any exacerbation of the risk posed by the defendant because of his likely adverse reaction to the imposition of an ISO or ESO.

Consideration

136. Both psychologists were of the opinion that the defendant was in the “Low – Moderate” risk range for engaging in extremist or politically motivated violence. It does not follow, however, that, simply because the defendant’s risk assessment for engaging in extremist or politically motivated violence is in the low-moderate range, that the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

137. Extremist or politically motivated violence is not necessarily the same as a “serious terrorism offence”, even though there may be some obvious overlap in the two concepts. It is necessary to have regard to what falls within the concept of a “serious terrorism offence”, the particular history and circumstances of the defendant and then to assess the nature of the risk posed by the defendant by reference to his past conduct, possible future conduct and its seriousness, and when the risk may come to fruition.

138. Nonetheless, the psychologists’ assessments do provide support for the conclusion there is a substantial risk of the defendant engaging in extremist or politically motivated violence in the future, if he is not supervised under an order. Further, given the nature of the threats he has made and his willingness to engage in violence, although this has only been relatively low level in the past (such as punching victims or driving after them), if his threats were acted upon, their consequences would be devastating for the persons concerned, their families, work colleagues and the organisations to which they belong. Further, Ms Terry observed that the defendant’s “outbursts have remained relatively consistent albeit escalating in frequency and severity”. In considering the nature and extent of the risk, I have also taken into account her comment concerning stabilisation of his mental health potentially reducing the risk, but noting:

“However, a thorough assessment of these risks would need to be completed when he is psychiatrically stable to determine the extent to which this is the case…Should [the defendant] cease contact with mental health and/or engage in substance abuse, it would be expected that his risks would increase.”

139. This approach is consistent with the matters relied upon in the defendant’s submissions concerning the effect of his treatment for schizoaffective disorder. Notwithstanding this, I accept, as Ms Terry opined, that a thorough assessment of the relevant risk is still required when the defendant is psychiatrically stable. This indicates the importance, in this matter, of examinations being carried out, as provided in s 24(5). As late as 28 January 2019, the defendant was assessed as displaying “no insight into his mental health and reported he does not have a mental illness…”. At that stage he was also non-compliant with medication as he stated “I don’t need medication”. As noted above, Ms Terry was of the view that the defendant remained unable to provide informed consent to participate in the assessment interviews when he was interviewed in late March 2019.

140. Furthermore, the defendant’s recent lack of insight not only into his mental illness but also his offending supports the conclusion that there is a very significant risk of his continuing to offend by making serious threats in the future and there is a lesser, but still not minimal, risk of his acting upon those threats. Whether he has gained some degree of insight is also something that would be addressed in examinations and reports, under s 24(5).

141. In the circumstances, I am satisfied that, if the defendant’s extremist or politically motivated threats or violence amounted to or included a “serious terrorism offence”, it would be open to the Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence if unsupervised.

142. As has been noted above, a “serious terrorism offence” includes engaging in a terrorist act in contravention of s 101.1(1) of the Code. As defined in s 100.1 of the Code, “a terrorist act” includes both action and threat of action. There is no doubt that the defendant’s threats in the past have involved, and there is a substantial risk that his threats or action in the future will involve, action that causes, and is intended to cause, serious physical harm or death to a person or persons. As a result, those actions and threats would fall within s 100.1(2) of the Code and not within s 100.1(3).

143. The question then is whether, on the matters alleged in the supporting documentation, it is open to find that the threats and actions, of which there is a substantial risk, would be done or made with the intentions required to satisfy the definition of “terrorist act” in s 100.1 of the Code. In other words, would they be done or made with the intention of:

1. advancing a political, religious or ideological cause; and

2. coercing, or influencing by intimidation, the government of the Commonwealth or New South Wales or intimidating the public or a section of the public?

144. This can only be judged on the present application by reference to what the defendant has said and done in the past and, having regard to the psychologists’ assessments of risk, what he is likely to do in the future. In this regard, in addition to the psychologists’ risk assessments and the very many serious threats made by the defendant and the other offending in which he has engaged, the following matters are also of particular significance:

1. The defendant made comments in 2014, referred to above, concerning his being part of a “superior race”, and he and his community making Australians pay for their disrespect. The words “What do we have to do? We will target you and use violence against you, to make you pay.” indicate an acceptance that violence could be used, either against Police officers in particular or Australians in general, to achieve a social objective based on perceived disrespect for, or victimisation of, the defendant and those of Indian heritage. He also referred to his “brotherhood” and that he and his brothers would come in number and that they would make “Australian people” pay, referring to Australians as “white scum” and “white dogs”.

2. In 2014, the defendant also linked his situation with that of his “brother” killing “your soldiers” in the UK, an apparent reference to the murder of British soldier Lee Rigby in London on 25 May 2013. He also made comments that when he and his community had the power they would perform beheadings of “white scum”.

3. In April and October 2018, the defendant included references to “brothers” in his threats of extreme violence to Corrective Services officers and has indicated a willingness to use, and the availability to him of, firearms.

4. The defendant has in September 2014, and more recently in custody in 2017 and 2018, presented a confused and inconstant attitude towards Islam. At times, he has used comments of an extremely offensive nature to taunt those he perceived to be of Arabic heritage. At other times, he has used similar extremely offensive comments allegedly made to him to make or justify his making threats of violence against persons because he was a Muslim.

5. On many occasions the defendant has expressed sexist and racist animosity using extremely derogatory language towards females and persons he perceived not to be of Indian heritage including “white” persons, Arabs and Asians.

6. In August 2018, the defendant explained to Mr Ardasinksi that:

“I’m a calculating person… If I’m going to do something serious, I won’t tell anyone. That’s just stupid – why would you want to give them a warning for?”.

145. There are elements of political, religious and ideological causes in these statements and beliefs as expressed by the defendant in the past. Ms Terry observed that “his offending appeared to reflect a consistent theme of interpersonal violence which was underpinned by shifting and at times conflicting attitudes, beliefs and grievances regarding race, gender, authority and religion”. Racism and sexism, including beliefs as to racial superiority and gender stereotyping, are both potentially political and, in some cases, ideological issues. The fact that the defendant did not appear “to demonstrate a significant affiliation or commitment to any ideological cause through rational or sound reasoning”, as Ms Terry observed, does not establish that there is no significant risk of the defendant making threats or taking action with the intention of advancing political, religious or ideological causes adumbrated in his statements made in the past. The absence of “rational or sound reasoning” may well be a significant factor that leads to his making threats with the intention of advancing those causes, as perceived by him.

146. I have taken into account Mr Ardasinski’s comment that “there is a lack of evidence” that the defendant’s threats were made with the intent of furthering a political goal or to protect the rights of a minority-owned disadvantaged group, although this does not appear to be entirely consistent with the comments of the defendant in 2014, referred to above. I also note that Mr Ardasinki has stated that “[t]here is no clear evidence” that the defendant holds “an identifiable ideology which supports the use of extremist violence to justify a ‘larger’ cause”. In my view, given the defendant’s comments and the nature of the threats, Mr Ardasinki’s comments highlight the importance of having the defendant examined by psychiatrists and psychologists so as to establish whether there is evidence which confirms or disproves those matters that Mr Ardasinki referred to and to clarify the evidence, which Mr Ardasinki found was not clear. This is in the interests of both the community and the defendant. In this context, it should also be noted that Ms Terry hypothesised that the defendant had a greater propensity to engage in violent extremism as a lone actor, rather than being part of an organised group or cause. She also said that “a thorough assessment of violent extremist risk factors following psychiatric stabilisation would be beneficial as there are noted gaps in the information available”.

147. In addition, I have had regard to the matters referred to in s 25(3) to the extent possible at a preliminary hearing and in light of what has been made available in the supporting documentation. The most significant but not all of the matters that have been taken into account have been referred to above.

148. In the light of the matters alleged in the supporting documentation, I accept that it is open to conclude that the defendant poses a significant risk of taking action and making threats of serious physical harm and death with the intention of advancing political, religious or ideological causes to such an extent that his examination by psychiatrists and psychologists, under s 24(5) of the THRO Act, is appropriate and reasonably necessary.

149. Moreover, many of the defendant’s threats of serious violence in the past have been directed specifically at Police and Corrective Services officers whom he appears to believe treated him unjustly or victimised him. There is significant risk of his making similar threats in the future, and possibly acting upon those threats. The New South Wales Police Force and Corrective Services NSW are part of the executive government of the State. I accept that it is at least reasonably open to find that death threats and threats of extreme violence made in respect of particular Police and Corrective Services Officers are meant to coerce or influence, by intimidation, those and other officers in the execution of their duties as part of the executive government.

150. In addition, if it is necessary, for the purposes of subpar (c)(i) of the definition of “terrorist act” in s 100.1 of the Code, that the executive government generally, rather than a particular agency or its officers, be the subject of the intended coercion or intimidation, I am also satisfied that it is reasonably open to find that the defendant’s threats in the past were, and similar future threats or action would be, made with the intention of coercing the executive government generally. In my view, the fact that the shooting of the Police civilian employee, Mr Curtis Cheng, was admitted to be, and accepted by Johnson J in Alou at [2] and [3] as being, a “terrorist act” provides support for this conclusion.

151. For these reasons, I accept that it is reasonably open for the Court to conclude that the risk posed by the defendant includes his engaging in extreme or politically motivated threats of violence or violence that amount to a “serious terrorist act” if he is not the subject of a supervision order.

152. As explained above, even if the risk of the defendant committing a serious terrorism offence is low or low-moderate, the consequences for the persons concerned, their families, work colleagues and the organisations to which they belong would be devastating. In addition, I take into account that when determining whether to make an ESO, the Court would be required to treat as the paramount consideration the safety of the community.

153. For all of these reasons, I conclude that is it is reasonably open, on the assumption that the matters alleged in the supporting documentation are proved, to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not the subject of supervision under an order pursuant to the THRO Act.

What orders should be made on the preliminary hearing?

154. It follows from the conclusion in the preceding paragraph that:

1. orders for examination of the defendant must be made, in accordance with s 24(5) of the THRO Act; and

2. the Court has a discretion, under s 27, whether to make an ISO while the examinations are being conducted, the reports prepared and the matter is readied for final hearing.

155. As to whether an ISO should be made, the State submitted that the safety of the community would be best promoted if such an order was made in the circumstances. The defendant’s counsel submitted that making an ISO could be counterproductive, because it would:

1. derail the defendant’s progress on engaging with mental health treatment; and

2. lead to increased risk because it would bring the defendant into regular contact with authority figures, which is what has generally given rise to the threats and offending in the past. It was noted that Mr Ardasinki opined that it was likely that the defendant “would fight an ESO and be continually reimprisoned for breaching it. He may commit acts of violence against his supervising officers due to his perception of injustice such an Order as relates to him – since he categorically denied that he poses any risk of committing a serious terrorism offence”.

156. In addition, the defendant submitted that a CTO and apprehended violence orders (AVOs) would be sufficient to address any concerns for the safety of the community and particular Police and Corrective Services officers.

157. Having regard to the objects of the THRO Act and all of the circumstances of the present case, I am minded to make an ISO for 28 days commencing immediately upon the expiration of the defendant’s current term of imprisonment.

158. Such an order would serve to protect the community while the application for an ESO is prepared and determined and this must be an important consideration, in light of the policy expressed in s 25(2). Further, such an order would ensure that the defendant received the treatment he requires for his schizoaffective disorder which, if it assisted him to develop insight into his mental illness and his offending, would also reduce the risk posed by the defendant. As explained by Ms Terry, such psychiatric and psychological treatment may play an important role in managing and moderating to a significant extent in the future any risk of the defendant committing relevant offences if not under supervision.

159. It seems to me, that an ISO need not necessarily have the adverse consequences that the defendant submitted and Mr Ardasinki anticipated. The rehabilitation of the defendant is one of the objects of the THRO Act and any ISO should take account of that object. With appropriate conditions, an ISO could assist in that regard. As observed already, it would ensure that necessary medication and treatment were received. In addition, by demonstrating a willingness to comply with a supervision order, the defendant could establish that he was able to start to make the transition from custody to living in the community without there being an unacceptable risk of his committing a serious terrorism offence, initially with supervision and, if that were successful, without supervision.

160. However, until the Court has the benefit of the reports to be provided under s 24(5) as a result of the examination orders, it is too early to reach a properly informed conclusion as to whether a CTO supported by AVOs would be sufficient either to ensure the safety and protection of the community or to encourage the defendant to receive treatment and undertake rehabilitation.

161. If the defendant simply “fought” an ESO or ISO, as Mr Ardasinski anticipated, then, depending on the outcome of the psychiatric and psychological examinations, that might confirm the need for an ESO. It should also be noted that Mr Ardasinski’s report apparently predated the defendant’s diagnosis of schizoaffective disorder and it is uncertain whether he would adhere to that view now or whether he would agree with Ms Terry’s opinions at par 84 of her report, which have been touched upon above.

162. Whether the defendant “fought” or complied with an ESO or ISO would also be likely to depend on its terms being suitably adjusted to reflect the defendant’s condition and circumstances and his level of insight, at the relevant time. As a consequence, it appears to me that I should make the orders for examinations and related orders now but stand over the question of what conditions should be imposed as part of the ISO so that the parties can make further, short oral submissions in the light of these reasons and the evidence already before the Court. It may be the case that there should be more limited conditions imposed but subject to the qualification that if any of those conditions were breached, the conditions of the ISO would become those proposed in the schedule to the summons, subject to any appropriate adjustments.

156. Before making any orders, it is important to note that the Court is not finally deciding this matter at this stage. It has been considering primarily whether orders for the examination of the defendant by a psychiatrist and a psychologist and for an ISO should be made. These examination orders are designed to assist the Court to make a properly informed decision whether or not the defendant poses an unacceptable risk of committing a serious terrorism offence in the future if not kept under supervision under an extended supervision order. A final hearing concerning that issue, and other relevant issues, must take place within 3 months of 7 July 2019 because of the operation of s 28(7) of the THRO Act.

Conclusion and orders

164. In the circumstances, I am satisfied that the preconditions for the making of examination orders under s 24(5) of the THRO Act are satisfied in the present case. Consequently, those orders must be made.

165. It is also appropriate to list the matter for a short hearing concerning what conditions might be imposed under an ISO. Further, since the order restricting access to the file was not opposed, it can be made at this time. Finally, for the reasons given above, I also propose to make a limited pseudonym order.

166. Accordingly, the Court orders that:

1. On the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be referred to in relation to the preliminary hearing in these proceedings only by the letters “BP” and his name is not to be published in relation to the preliminary hearing in these proceedings.

2. Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017, the Court:

1. appoints a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. directs the defendant to attend those examinations.

3. Access to the Court’s file in this proceeding to a non-party is permitted only with the prior leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

4. The matter is to be listed for further oral submissions on what conditions should be imposed under an interim supervision order on 20 June 2019 at 10 am.

5. Liberty is granted to the parties to apply on one days’ notice if difficulties arise with the implementation of order 1.

6. The Court directs the defendant to provide to the plaintiff a document setting out which of the conditions proposed by the plaintiff to be included in any supervision order he objects to and the basis for the objection by 12:00nn on 18 June 2019.

**********

Decision last updated: 14 June 2019