State of New South Wales v Dunn

[2019] NSWSC 426

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Dunn [2019] NSWSC 426
Hearing dates:	26 and 27 March 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to s 34(1), s 39(1)(b) and s 40(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is subject to a continuing detention order for a period of nine months from today; 2. Pursuant to s 49(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) a warrant is issued for the committal of the defendant to a correctional centre for the duration of the continuing detention referred to in order (1); 3. Pursuant to s 20, s 25(1)(a), s 26, s 39(1)(a) and s 69(2) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is to be subject to an extended supervision order for a period of 3 years to commence at the expiry of the order for continuing detention; 4. Pursuant to s 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is directed to comply with the conditions set out in the attached “Extended Supervision Order Schedule of Conditions” for the period of the Extended Supervision Order. 5. Access to the Court’s file is only permitted to a non-party with the 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.
Catchwords:	TERRORISM HIGH RISK OFFENDER – application for a continuing detention order and an extended supervision order – defendant affected by schizophrenia – question of basis of past dangerous conduct – whether defendant holds extreme beliefs or whether those beliefs are an expression of psychosis - need for medical treatment - question of whether threatening behaviour can be adequately managed by medical treatment – evidence capable of establishing that defendant poses a risk
Legislation Cited:	Community Protection Legislation Amendment Act 2018 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes Act 1900 (NSW) Criminal Code 1995 (Cth) Mental Health Act 2007 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) M Dunn (a pseudonym) (Defendant)
Representation:	Counsel: Mr J Agius SC with Mr P Aitken for the Plaintiff Mr M Johnston SC for the Defendant   Solicitors: Mr E Camporeale & Mr J Pallas of the Crown Solicitor’s Office for the Plaintiff Mr R Malouf of Malouf Criminal Law for the Defendant
File Number(s):	2018/00148703
Publication restriction:	None

Judgment

1. HER HONOUR: Mr Dunn – not his real name, a pseudonym order having been made on 18 May 2018 – has a long history of threatening acts of violence against police and others, generally in the context of his asserted loyalty to the terrorist group ISIS, or the so-called “Caliphate”, or otherwise “in the name of Allah”. The State of New South Wales contends that he poses a danger to the community, and should be detained.

2. A Further Amended Summons was filed on 27 March 2019, in which the State seeks orders pursuant to ss 34, 39(1)(b) and 40 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) to subject the defendant to a continuing detention order (“CDO”), followed by an extended supervision order (“ESO”) pursuant to ss 20, 25, and 26. The defendant opposes a CDO, and particularly, one of the duration sought by the State, that being for a period of 18 months. He contends that he is in need of medical treatment for a mental illness, and not incarceration.

3. Proceedings under the Act were commenced by the State on 11 May 2018 with a Summons filed on that date.

4. The matter came before N Adams J at a preliminary stage of the proceedings. Her Honour made orders on 19 June 2018 appointing two qualified psychiatrists to examine the defendant, and requiring him to attend the examinations. The defendant was made the subject of an interim detention order (“IDO”): State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008 (“Dunn 2018”).

5. Her Honour’s judgment makes for essential reading in fully understanding the background to these proceedings, and their history until June 2018, and I gratefully refer to it, containing as it does careful consideration of the relevant (and relatively new) legislation, and a detailed account of the evidence presented by the State to that point. It is not intended in this judgment to repeat in any detail all of the matters set out in Dunn 2018.

6. The legislative scheme under which these proceedings have been brought was discussed at [8]-[22] of Dunn 2018. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision and continuing detention of offenders who come within the parameters of the statute. A further object is to encourage such persons to undertake rehabilitation.

7. A CDO or ESO can be imposed upon an offender where the relevant statutory criteria are satisfied.

8. Here, there is no dispute that the defendant is an “eligible offender” as defined in s 7 of the Act, and a “detained offender” within the meaning of s 33 and for the purposes of s 34; or that an application has been made in accordance with Part 3 of the Act. Neither is there any issue that the evidence is capable of establishing that the defendant is a convicted “NSW terrorism activity offender”, as provided for by s 10 of the Act, as amended.

9. The recent amendments to the Act, and which post-date Dunn 2018, were made by the Community Protection Legislation Amendment Act 2018 (NSW), effective from 28 November 2018. In particular, s 10(1)(c)(i) was amended, and s 10(1A)(a) was inserted. Section 10 in its amended form provides,

10   Convicted NSW terrorism activity offender

(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:

(a)  the offender has at any time been subject to a control order,

(b)  the offender has at any time been a member of a terrorist organisation,

(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

(ii)  has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.

(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:

(i)  making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(ii)  using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(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

(b)  an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following:

(i)  networking or communicating with the person, group of persons or organisation,

(ii)  using social media sites or any other websites to communicate with the person, group of persons or organisation.

(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).

(3)  In this section:

terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.

10. The defendant does not dispute having made statements, including making threats of violence, of a kind that is promoted by a group that support terrorist acts or violent extremism. He does not dispute that it is open to the Court to conclude that the evidence establishes that his conduct brings him within the operation of s 10(1)(c)(i), bearing in mind s 10(1A)(a)(iii), and noting s 11 of the Act.

11. The matter in dispute for determination is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a “serious terrorism offence” (as defined by s 4(1) of the Act) if not detained.

12. The principles that apply generally to an application of this nature were considered at [23]-[27] of Dunn 2018. I adopt what her Honour there said. Subsequent to her Honour’s discussion of them, the Court of Appeal had cause to consider the operation of s 20(d) of the Act, that being the parallel provision to s 34(1)(d). The procedure in approaching the test for making an ESO was set out at [29] of State of New South Wales v Naaman (No 2) [2018] NSWCA 328, as follows:

First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction.

Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur.

Thirdly, par (d) requires the Court to be satisfied to a “high degree of probability” of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court’s state of satisfaction to be “to a high degree of probability”.

Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is “not kept under supervision under the order” which the State is seeking. On that premise, the Court is then required to determine the “risk of committing a serious terrorism offence”. It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct.

Fifthly, the Court is then to determine whether that risk is or is not “unacceptable”. It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not “unacceptable” is not otherwise defined in the Act.

Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.

The Evidence Adduced by the State

13. The Court has been provided with a significant amount of documentary evidence in the State’s case. Much of the documentary material was before the Court on the preliminary hearing, and is referred to in Dunn 2018 at [41]-[42]. At [47]-[121] of that decision N Adams J has provided a comprehensive summary of the evidence, which is not repeated here.

14. The additional evidence tendered at the final hearing on 26 and 27 March 2019 is: an affidavit of Christopher Butler of 18 December 2018 (producing Ex. CB3); an affidavit of Amanda Leek of 22 February 2019; the affidavit of Danielle Anderson of 26 February 2019; and affidavits of Vincenzo Camporeale of 26 February 2019 (producing Ex. VC1), and 11 March 2019. Also read on the application was an affidavit from Dr Sarah Jane Spencer of 25 March 2019; an affidavit of Mick Marshall of the same date; and affidavits from Josh Pallas of 22 March 2019, 25 March 2019 and 26 March 2019, the latter containing a transcript of a recorded telephone conversation of 2 March 2019 at 9.51am (the transcripts of two other telephone calls annexed to the affidavit having been excluded from evidence).

15. The Court also had the benefit of reports from the court-appointed experts, being a report of Dr Kerri Eagle of 15 February 2019 and a report of Dr Andrew Ellis of 20 February 2019. Further, reports were tendered from Professor Paul Mullen of 6 March 2019, and from Dr Rodger Shanahan of 18 March 2019.

16. Oral evidence was called from Mr Marshall, Dr Spencer, Dr Eagle, and Dr Ellis.

17. What follows is a discussion of the most significant parts of the further evidence in support of the State’s application, provided to the Court for the hearing on 26 and 27 March 2019, and relevant to those matters to which the Court must have regard, as mandated by s 39(3) of the Act.

The Documentary Evidence

Recent Criminal Matters

18. Some background is necessary to recent criminal conduct by the defendant, including referring to some matters that were before N Adams J last year.

19. When these proceedings were commenced in May 2018 the defendant was serving a sentence following his conviction for two offences, being intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and intimidating a police officer contrary to s 60 of the Crimes Act 1900 (NSW) (“the Crimes Act”). The former offence reflected the threat made by the defendant to his mother during a telephone call from the prison in which he was serving a sentence, to burn down her house and kill her. The latter offence occurred after the defendant’s release to parole when, en route to hospital for treatment, he threatened to “get your glocks and shoot you”, “fucking kill you all”, and “blow you all up cunts and rape your mothers and sisters […] in the name of Allah”, amongst other threats of very serious violence.

20. The defendant was sentenced on 21 June 2017 for these offences and another related offence of using a carriage service to menace contrary to s 474.17(i) of the Criminal Code 1995 (Cth), to imprisonment for 12 months for the State offences, and (on appeal) a 2 year recognizance for the Federal offence.

21. During the sentencing proceedings on 21 June 2017 the defendant made further threats, to blow up Holroyd Police Station and a particular police officer, and to blow up the City to Surf Fun Run, apparently in the name of the Caliphate. He said (in part),

As soon as I go back to gaol, I am knocking officer, bang, I am stomping on his head. I am going to the SuperMax, fuck this. You are just kidding yourself. Five, six months, you think I care about five, six months. As soon as I get a chance, you know, might as watch the news there, all youse carefully. As soon as I get the first chance in gaol, one big bomb on your officer, two steps from where it is. If it is the Aussie one, I will be very happy. Fuck youse and your country, punch it up your arse, and your Aussie pride. I bet youse, you are going to remember me in your history books. You never had someone talk like this in front of your judge, eh, you know.

22. On being taken to Fairfield Police Station after the sentence of 12 months imprisonment was imposed upon him, the defendant both assaulted and threatened two police officers, and threatened to blow up the Police Station. He was charged that day with assaulting a police officer occasioning actual bodily harm contrary to s 60(2) of the Crimes Act, one count of assaulting a police officer contrary to s 60(1) of that Act, and two counts of intimidating a police officer under the same provision. Five days later the defendant was charged with threatening sabotage contrary to s 203C(1) of the Crimes Act, reflecting the threat made on 21 June 2017 to blow up Holroyd Police Station.

23. The charges were finalised on 26 September 2018. The threaten sabotage charge was withdrawn, and the defendant entered pleas of guilty to, and was convicted of,    assault police, assault police occasioning actual bodily harm, and two counts of intimidating police. An aggregate sentence of 2 years imprisonment was imposed upon him, to date from 20 April 2018, expiring on 19 April 2020, with a 12 month non-parole period expiring on 19 April 2019.

24. Whilst in custody awaiting the finalisation of those charges, the defendant destroyed property in his cell at Lithgow Gaol, receiving a short term of imprisonment, now expired.

25. The defendant continues to serve the sentence imposed upon him on 26 September 2018. In that the sentence is one of less than 3 years, ordinarily the defendant would be automatically admitted to parole on 19 April 2019 by operation of statute: s 158(1) of the Crimes (Administration of Sentences) Act 1999 (NSW).

26. The defendant has, most recently, been issued with a Future Court Attendance Notice for common assault contrary to s 61 of the Crimes Act. He is to answer that charge on 9 May 2019 when the matter is listed before the Local Court. The plea to be entered, or the course that proceedings for that offence will take, is not presently known.

Intelligence Reports – Corrective Services NSW

27. A number of intelligence reports held by Corrective Services NSW and relating to the defendant were before the Court. Not all of them are touched upon here.

28. A report of 26 April 2015 recorded the defendant’s violent and threatening behaviour in custody, namely “shoulder charg[ing]” his cell door and consequently injuring an officer. He was subsequently escorted to segregation, during which time he made threats of violence and sexual assault to officers and their relatives. He was particularly threatening towards the senior officer present at the time. The defendant also made threats towards Australia and the general Australian public who had to “‘pay’”.

29. Analysis of the incident characterised the defendant as a “real and present danger”. He was described as an individual who does not have any consideration for the consequences of his actions. It was noted that although “most of his threatening behaviour is directed towards staff and persons of authority”, it was unknown whether his threats to harm staff and the wider community were real or not. Reference was made to unsubstantiated information that the defendant considered that his mission was to “‘destroy Australia’ from the inside”, and believed that “Muslims [are] superior”.

30. The day after that report was made the defendant was interviewed by a Senior Assistant Superintendent at the Metropolitan Remand and Reception Centre (“MRRC”). The defendant was recorded as constituting a threat to national security, with a potential motivation in “religious extremism”. There was a record of unsubstantiated intelligence from at least May 2013 as to the extremist views the defendant held, including his stated belief that Muslims are superior to non-Muslims, his wish to carry out terrorist acts in Australia, and his belief that his mission is to destroy Australia. Report was made of the defendant’s threats to locate Corrections officers’ “personal addresses, sexually assault the families of staff members, and “chop off” an officers head.

27. Although the defendant’s access to the resources necessary to commit the threatened acts was questioned, the connections of the defendant’s family to persons engaged with Middle Eastern Organised Crime was noted. The assessment concluded that although the defendant had not physically hurt staff, his impulsive behaviour was concerning. It was suggested that the defendant undertake the Individual Violent Offenders – Intervention Programme and the Extreme Threat Inmate Programme, when those programmes became available.

28. Conduct of the nature outlined has been repeated from time to time.

29. A more recent report prepared on 26 February 2019 indicated that the defendant’s “threatening and non-compliant behaviour” escalated when returning to Lithgow Correctional Centre, with the defendant threatening to rape and behead Corrections staff and the families of officers. He was also noted to have claimed to be a member of ISIS, although the truth of the claim was not verified. The report further noted the defendant’s drug use, suggesting that his mental state is often affected by it. Reference was also made to the defendant’s “substantial behavioural issues”, inclusive of his antisocial personality disorder and schizophrenia. The defendant was non-compliant with his prescribed medications at the time. Despite that, the analysis concluded with an assessment that, although the defendant may be capable of being violent, he had not demonstrated actual violence to staff. It was predicted that it was unlikely that he would attempt acts of violence as threatened.

Risk Assessment – the Report of Naomi Prince

34. An initial Risk Assessment Report of the defendant was prepared in April 2018 by Naomi Prince, a Clinical and Forensic Psychologist. Ms Prince has since prepared a supplementary Risk Assessment Report dated 6 March 2019. The report was written with all relevant information to the matter, including the most recent psychiatric reports of Drs Eagle and Ellis.

35. Ms Prince identified the defendant as a 29 year old male with both Australian and Pakistani citizenship. She characterised his criminal history as both violent and non-violent, pointing to “over 150 police events recorded…over 40 charges [and] various intelligence holdings”.

36. She noted the defendant’s mistrust of authority figures, and his threats to behead, kill and rape officers and their relatives. Ms Prince also recorded the defendant’s “threat[s] to shoot police officers; organise a drive by shooting of a police station; petrol bomb police cars; blow up a police station; bomb public events and travel overseas to fight with his “‘Muslim brothers’”. She also commented on the defendant’s expressed support for Islamic terrorist organisations.

37. Since the initial Risk Assessment Report, Ms Prince noted that the defendant had been subjected to an Interim Continuing Detention Order. Other changes are that he had been referred to a local Mental Health Nurse for review and prescriptions; he had agreed to participate in the EQUIPS Aggression programme, although he refused to consent to a referral to the Violent Offender Treatment Programme (“VOTP”). The defendant commenced, but did not complete, the EQUIPS Aggression programme. He was additionally referred to EQUIPS Addiction but did not complete this course, due to placement in segregation [for misconduct]. The defendant also requested opioid substitution therapy but was unable to commence it due to his segregation placement.

38. The defendant has faced 13 new institutional charges and a number of segregation orders since the initial Risk Assessment Report. Corrective Services notes recorded since that time document the defendant’s continuing threats towards Corrections officers, his desire to renounce his Australian citizenship and return to Pakistan and join the Taliban, and his claim to have “‘urinated’” on the graves of Australian soldiers and posted photographs of his actions on social media sites. He was also recorded as having claimed to have raped the daughter of a particular Corrective Services officer in exchange for drugs.

39. Further notes referred to by Ms Prince recorded that in December 2018, the defendant threatened to “‘do something to the boys in blue’” if he is given another custodial sentence. In January 2019, he continued to make abusive statements towards staff referring to them as “‘…white dog[s]’”, “‘rednecks’”, and “‘sluts’”, stating that he refused to “‘respect anyone’”. He was verbally abusive to female officers and female relatives of officers. He threatened to throw urine on staff, assault staff, and set fire to his cell. At the time of these later threats, the defendant had illicit buprenorphine in his system.

40. When transferred to Long Bay Hospital on 18 January 2019, the defendant was noted to be paranoid, and believed that officers were “‘playing games’”. Ms Prince noted the defendant’s ongoing illicit use of buprenorphine, Xanax and other drugs in custody.

41. In February 2019, the defendant again claimed to want to go to Supermax so he could associate with his terrorist “‘friends’”.

42. Ms Prince opined that these events, since the time of the defendant’s initial assessment, are consistent with his “‘chronic aggressive and anti-authoritarian behaviour’”. Although Ms Prince was positive about the defendant’s willingness to participate in the EQUIPS programmes and the Proactive Integrated Support Model (“PRISM”) programme, she predicted that his institutional misconduct is a significant barrier to therapy of that nature.

43. Ms Prince concluded that there is no change in risk from the initial assessment, with the defendant still posing a moderate to high risk for general offending; a high risk for violent offending; and a moderate to high risk for extremist violence, politically motivated violence, or terror activity. To successfully treat the defendant, the initial Risk Assessment Report recommended using VOTP, case coordination, and individualised intervention through the PRISM programme as the primary intervention pathway. Had the defendant been willing to undertake it, the VOTP would have functioned to assist him to “increase his insight into personal factors, develop strategies to mitigate such risks and challenge his acceptance of violence”.

44. However, Ms Prince thought that programmes such as this, or the partially completed EQUIPS programmes, may be insufficient to treat the defendant, and function only as a preliminary step to treatment. Ms Prince emphasised that intervention is needed to assist the defendant to address his violence although she agreed with Drs Eagle and Ellis that his psychiatric stabilisation needs to be prioritised.

45. Overall, Ms Prince suggested an integrated plan with “intensive intervention” delivered in a “non-linear manner”, focusing on behaviour management, supervised medication and regular drug testing. It would need to adjust according to the defendant’s resistance to treatment, behavioural misconduct, relapse into substance use, and cognitive and psychiatric functioning.

46. Ms Prince noted the difficulty in estimating a timeline for intervention and treatment in custody of the defendant, due to the need to first address his psychiatric stability and abstinence from substances. She estimated that a period of six months would be sufficient, with ongoing monitoring of medication and substance use, as well as further assessment and motivational engagement. Ms Prince suggested that CD, the defendant’s wife, may function as a positive support network for the defendant to encourage engagement with treatment providers and community reintegration planning prior to release.

47. If the defendant were to be subjected to an ESO, Ms Prince was pessimistic about his capacity to comply with conditions. She stated that his psychiatric stability should be paramount, and suggested potential hospitalisation to stabilise his mental health upon release. Ms Prince recommended a “coordinated approach” of intervention and supervision. She predicted that the defendant will likely resist persons with authority and become aggressive towards them, particularly if substance use continues.

48. In the community, Ms Prince suggested a range of monitoring techniques including electronic monitoring, providing weekly schedule of movements, monitoring social contacts, mobile phone and online activity, and so on. She thought it likely that the defendant would have difficulty in adjusting to supervision of this nature, probably resisting it. Psychological intervention may be of benefit in this regard.

49. To monitor the defendant’s religious and cultural views outside of custody, Ms Prince suggested arranging support and mentoring from a Muslim community or religious leader to assist the defendant to challenge his extremist views and to tie him to a local community.

Risk Management - Report of Mick Marshall

50. Mr Marshall is the Acting Director of the Extended Supervision Order team within Corrective Services New South Wales. He prepared a report dated 7 March 2019.

51. Mr Marshall gave an overview of the defendant’s interactions with Community Corrections (“CC”). He noted that the defendant first became known to CC in 2009 via a Pre-Release Report that advised on case management strategies for him upon release on parole, namely an Anger Management Programme and individual counselling sessions, both of which the defendant ultimately failed to engage with.

52. In May 2010, supervision of the defendant was transferred to the Community Compliance Group (“CCG”) and the defendant was seen to successfully comply with home visits and drug testing. He nevertheless remained abusive and aggressive towards the CCG staff.

53. The defendant returned to custody in January 2011 for a driving offence, and was re-released on parole in January 2012. He did not offend for his remaining six weeks of parole.

54. He was again released on parole in February 2014 after being incarcerated for domestic violence offences. The defendant secured suitable, but temporary, accommodation at a hostel, but he was returned to custody after 10 days of conditional liberty for breaching his parole conditions.

55. In April 2016, after two years in custody, the defendant was again released on parole, with his mental health being noted as a concern. He was taken to Cumberland Hospital by police soon after his release after a psychotic outburst during an argument with a neighbour. The defendant was released from hospital without diagnosis or treatment. In August of that year the defendant tested positive for methamphetamines and his parole was revoked.

56. Next, he served a sentence for damaging or destroying property, being released to parole in June 2017, to reside with his wife’s family and to report to a nearby CC office. The defendant breached both conditions. After only two days at liberty he was taken to Westmead Hospital due to a drug induced psychotic episode.

57. Parole was again revoked and the defendant was returned to custody, where he was noted to have been “abusive, aggressive and threatening” to officers. Mr Marshall noted that the defendant has incurred 15 internal misconduct charges since this time and was categorised as a “National Security Inmate”.

58. In making an assessment and proposing an intervention plan, Mr Marshall relied upon Ms Prince’s Risk Assessment Report and the reports of Drs Eagle and Ellis.

59. Mr Marshall noted Ms Prince’s conclusion that the defendant’s risk of violence is high on the Violence Risk Scale. He also referred to the failure to address the defendant’s violent conduct in either custody or the community. He observed that the defendant continues to be “abusive, aggressive and…assaultive” towards officers in custody, noting “abusive tirades” against custodial staff. Mr Marshall regarded it as “essential” that the defendant participate in intervention that focusses on his risk of violence.

60. Mr Marshall also considered that, once the defendant’s mental health has been stabilised, he should undergo drug rehabilitation.

61. In the community, Mr Marshall noted that the defendant’s support networks are unknown. His relationship with his wife has been troubled in the past, and there is no information as to his connection to any family members.

62. Mr Marshall suggested a proposed management plan if the defendant was to be subjected to a CDO. He thought transfer to and assessment within the Mental Health Screening Unit (“MHSU”) was indicated, recommending consideration be given to seeking a Forensic Community Treatment Order (“FCTO”) [obtained since his report was written]. Mr Marshall considered that, once the defendant’s mental health is stabilised, intervention for violent behaviour and substance use could commence.

63. If subject to an ESO, Mr Marshall predicted that the effectiveness of any order would depend upon the stability of the defendant’s mental health, and compliance with medication and intervention. Mr Marshall suggested strategies to supervise the defendant under an ESO including weekly face-to-face interviews, liaising with a mental health provider, scheduled and unannounced home visits, covert and overt field surveillance, personal and environmental searches, weekly schedule of proposed movements, a list of proposed associates, drug testing, electronic monitoring, monitoring of online activity, property searches for relevant material or weapons, a prohibition on possessing, accessing, promoting or distributing extremist material, and monitoring of financial transactions.

64. Once implemented, any risk management plan should be regularly reviewed.

Mr Mick Marshall

65. Mr Marshall also swore an affidavit of 25 March 2019, in which he considered the accommodation that might be available to the defendant upon release from prison. The defendant spoke with a Corrections officer on 22 March 2019 about this issue, telling the officer that he could live with his wife in suburban Sydney upon release.

66. That same day, a Corrections officer spoke with the defendant’s wife, CD, who confirmed that the defendant can live with her. She is aware of his mental illness, and the need for him to take prescribed medication. CD asked the officer to ensure that, upon release, the defendant was prevented from contacting ex-prisoners, and was required to undertake a drug rehabilitation programme.

67. Mr Marshall noted that, due to the defendant’s history of violence and threats of violence to Corrective Services staff and others, he was not suitable for accommodation through the Community Offender Support Programme.

The Evidence of Dr Kerri Eagle

68. Dr Eagle was appointed by the Court to assess the defendant. Her report is Ex. 2.31. The doctor conducted a 3 hour face-to-face psychiatric assessment of him at the Long Bay Correctional Centre on 25 January 2019.

69. Dr Eagle reported that, despite appearing well groomed, the defendant demonstrated increased levels of psychomotor agitation during the first hour of the interview, pacing, yelling and demonstrating hostility toward authority figures. His speech was loud and pressured and at times difficult to understand. Towards the end of the interview he was able to engage and cooperate with her assessment.

70. Dr Eagle took a history from the defendant, recording that he grew up as one among eight children in a Muslim family. He was born in Pakistan, and migrated to Australia in 2000 at the age of 11, in the care of his older brothers. It was in his brothers’ care that he was physically abused as a child, on one occasion being hospitalised for a number of days.

71. The defendant’s brothers were convicted of serious gang related sexual assaults in 2001 and 2002 and gaoled. Another brother died, an event witnessed by the defendant. His father returned to Australia, and in 2005 his mother and younger sibling migrated here.

72. The defendant lived with his parents during his adolescence. He claimed to have been “good at school”, but got “involved with the wrong people” in high school. He told Dr Eagle that he was expelled in year 10 for selling ecstasy pills. At the time, he began using the drug himself. He subsequently worked in scaffolding, and telemarketing and telecommunications jobs.

73. His father died in 2006.

74. The defendant told the doctor that he began using alcohol and cannabis at about age 14 and used MDMA and cocaine from age 15 or 16. He said that he began buying heroin when he got out of custody in 2008 and became addicted. On returning to custody he began smoking buprenorphine, at times mixed with alprazolam.

75. The defendant claimed not to have used heroin since 2011, taking up methamphetamines in 2013. Even after entering custody, the defendant continued to use the drug regularly. The defendant was still using methamphetamines, and buprenorphine, in gaol in 2018.

76. The defendant emphasised the normality of violence in Pakistan, where he grew up. He said that he incites violence and makes violent threats because he “‘can’t control it’”. His mother and younger siblings have fallen victim to his violent nature in the past.

77. Dr Eagle noted that the defendant was first criminally charged in 2003, at age 13, when he was involved in a “‘fight’” at a social gathering. Soon after he was charged with an assault upon his sister and later, his younger brother. His offences to date have spanned “assaults, use of offensive language, driving charges, intimidation, obtaining money by deception, robbery in company, stalk/intimidate, break and enter, assault law officer, possess mobile phone, destroy or damage property and use carriage service to menace / harass”.

78. The doctor referred to the view of psychologist Dr Katie Seidler’s that the defendant experienced a “‘disturbed and dysfunctional’” childhood where he was “‘exposed to cultural trauma and violence, the pressures of migration and cultural dislocation and the risks associated with an ostensibly lawless, hedonistic and abusive home environment’”. A brother has been treated for a psychotic disorder.

79. Using a Millon Clinical Multiaxial Inventory tool Dr Seidler had concluded that the defendant was “‘socially isolated’”, emotionally estranged, and suspicious of others. His behaviour could be “‘odd or eccentric”, and he might appear aloof to others. The defendant repeatedly told Dr Eagle that he believed that he was cursed with black magic and that authority figures and organisations, namely ASIO, are “‘involved with spirits’”. He referred to seeing an “‘illuminati’” doctor, receiving “‘intel from spirits’” and having auditory hallucinations.

80. Dr Eagle thought that the defendant was aware of his psychosis and understood that certain experiences, such as hearing voices, were an effect of his mental illness, but he continued to assert that black magic was real. The doctor observed that manifestations of psychotic behaviour are reported across a range of documentary material, spanning 2013 to 2018, which note his belief that he is cursed with black magic and is being watched, and his feelings of hatred towards Australians (his desire to “‘behead’” them, to “‘blow up Australia’”, and to kill and “‘rape’” law officers and their relatives).

81. Dr Eagle noted a number of past reports of apparent mental illness, principally from Corrective Services documents, summarising salient information.

82. On 1 April 2014, Dr Dhansay assessed the defendant, who was “talking to himself, agitated and not slept for two days”. Psychiatrist Dr Simonelli, who assessed him three days later, reported “ongoing paranoid phenomena” and potential development of schizophrenia.

83. The following month the defendant told Corrective Services officers that he was brought to Australia to “‘sell drugs and kill all non-Muslims’” because he believed Australians were doing the equivalent in Pakistan.

84. Throughout 2015 and until the time of Dr Eagle’s assessment, the defendant made threats to law officers about killing them, blowing them up or beheading them, as well as killing and raping their families.

85. In July 2015, he claimed that he would renounce his Australian citizenship and move overseas to fight for ISIS. At times, he has said that he was an “‘active member of ISIS’”. He was regarded by Corrective Services as “‘totally out of control’”.

68. In March 2016, the defendant told Community Corrections that he had been radicalised in the past but now believed that extremist Muslims “‘take the religion to extremes’”, something he said he did not agree with.

69. In May 2016 when on parole the defendant was briefly admitted to Cumberland Hospital after a psychotic episode during an argument with a neighbour. Psychosis was not, however, diagnosed, with his presentation attributed to substance abuse. On returning to Cumberland the following week, a diagnosis of schizophrenia was considered.

70. In July 2016, the defendant said that he was being watched by people, from MI5 and MI6. He repeated those claims in August 2016, at a time when he was noted to be using methamphetamines. On entering custody the following month, he continued to claim he was under surveillance.

71. In January 2017, the defendant told his treating psychologist that he had been cursed with “black magic” and could not sleep. He subsequently set fire to his mattress. In the same month, Dr Malik reviewed the defendant, who insisted that black magic “‘controls all technology’”. Aripiprazole was prescribed for “‘low grade paranoia’”.

72. In May 2017, the defendant claimed to be “‘the next Curtis Chan’” [a reference to the police accountant, Mr Cheng, shot dead in a terrorist attack in Sydney in October 2015].

73. On 17 June 2017, the defendant was released to parole but quickly admitted to hospital after suffering from a drug induced psychosis. He was returned to custody on 21 June 2017 after having been recorded declaring that the City to Surf “‘would be a good spot to blow up’”. He also claimed that he wanted to behead Australians for being “‘disbelievers”, “‘infidels’” and “‘dogs’”, and that he had “‘the biggest party’” to celebrate the recent terror attacks in [Melbourne].

74. By June 2017, the defendant was regarded by staff at Corrective Services as “‘psychotic – delusional in the context of cultural beliefs’”, bearing antisocial traits and “‘manipulating the system’”. He was consequently admitted to a pod in the MHSU. However, forensic psychiatrist Dr Adams evaluated the defendant as having “overvalued ideas that were culturally appropriate”, rather than having psychotic traits. On that basis, he was discharged from the MHSU in August 2017. The discharge summary recorded a diagnosis of “substance induced psychosis and antisocial personality disorder”.

75. On 26 August 2017 the defendant threatened police officers and claimed that he “‘[couldn’t] wait for them [terrorists] to blow up something in Australia’”; and that he was “‘going to do extra prays’” to ensure that it occurred. The basis for this was said to be revenge for how the “‘Australian Army, the putrid dogs kill [Muslims] overseas’”.

76. On 31 August 2017, the defendant stated that “‘[his] risk of reoffending is high’”. He claimed not to be taking his medication and “‘using drugs every day in gaol’”. He was frequently non-compliant with medication.

77. On 2 March 2018 the defendant recommenced treatment for schizophrenia, although remaining mentally unstable. He requested to be placed in SuperMax so he could “learn to become a terrorist”.

78. In April 2018, the defendant was assessed as having low average cognitive ability on the Wechsler Abbreviated Scale of Intelligence. He refused to participate in a risk assessment at this time, and did not appear to be mentally well.

79. In April 2018, the defendant was again prescribed anti-psychotic medications Aripiprazole and Olanzapine. (The defendant told Dr Eagle that he is still on these medications at present day; that they “stop the thoughts” but “make [him] tired”).

80. At this time his wife CD asserted that he “‘needed hospital, not gaol, it doesn’t help him’”.

81. In June 2018 the defendant was reviewed by Dr Simonelli, who reported that he was “‘adamant the psychotic symptoms are no longer there’”.

82. In August 2018 the defendant refused his morning medications. A Health Problem Notification Form warned that the defendant was guarded, “acting suspicious; accusing people of doing things that [were] not being done; isolative and/or withdrawn behaviours; and appearing to be responding to person/s that no-one else can see”.

83. On the basis of the frequent threats uttered by the defendant over time to “behead” and kill a number of law officers, “‘blow up’” Australia, and join ISIS, and his claims to an association with a National Security Interest inmate, Greg Ceissman, and would-be Syrian-fighter Osman Haouchar, the defendant was identified by Corrective Services as an “‘extreme threat inmate’” in October 2017.

84. To some extent that history is reflected by the defendant’s institutional record, which notes that he has been placed into segregation on “at least 18 separation occasions”, often for several months at a time. He has also received 70 disciplinary charges in custody, from drug offences to assaults, to disobeying directions.

85. The defendant proposed to Dr Eagle that he was willing to complete the VOTP [which he has formerly refused to participate in] and has applied for the PRISM programme while in custody. He has also completed EQUIPS aggression training and is interested in completing a drug rehabilitation programme. When asked about his future plans and goals, he reported to Dr Eagle that he would like to enter a “buprenorphine programme” upon release to address his substance abuse. He also wanted to see mental health consultants and perhaps take gabapentin to maintain his mood. He said that his intention was to work as a labourer upon release, believing that it would be “‘easy’” for him to gain employment with his experience and qualifications. He also wanted to live with his wife and avoid Islamic extremist associations.

86. Dr Eagle noted that the defendant’s support mechanisms in the community included his wife, despite a complex history between them of domestic violence. However, she did not think the defendant was “particularly influenced” by his support networks.

87. Having assessed the defendant and reviewed the voluminous documentary record, Dr Eagle concluded that it is likely that the defendant is schizophrenic, and has suffered from relapses of psychosis “characterised by bizarre persecutory delusions, referential beliefs and auditory hallucinations”. Dr Eagle also concluded that the defendant has a severe substance use disorder, spanning a variety of non-prescribed, prescribed, and illicit substances, both in and out of custody. The defendant’s mental illness is exacerbated by substance abuse.

88. Dr Eagle expressed the opinion that the defendant’s mental illness has been “overlooked, minimised and untreated”. She regarded his illness as a driving force behind his “grievances, distorting the perception of events, impairing his judgment and reducing his levels of self-control”.

89. Dr Eagle also noted the defendant’s “severe and prolonged childhood trauma”, with few to no prosocial role models, in an environment where violence was accepted, and in which he did not learn “any healthy psychological coping strategies”. She diagnosed an antisocial personality disorder manifesting as “a pervasive pattern of disregard for and violation of the right of others since 15 years old”, with its likely origins in his “traumatic, dysfunctional and fragmented childhood”. The defendant demonstrated “repeated offending behaviours; deceitfulness; impulsivity; aggressiveness; reckless disregard for the safety of others; consistent [ir]responsibility and lack of remorse”. Dr Eagle added that the defendant’s identified psychotic illness is accompanied by psychological vulnerabilities.

90. As to the risk the defendant poses to others, noting the significant limitations of risk assessment tools in measuring the likelihood of acts of violent extremism, Dr Eagle concluded that the defendant does pose a high risk of committing such acts.

91. The background to that assessment is the defendant’s traumatic childhood and dysfunctional upbringing; the severe mental illness that stops him from making a rational interpretation of certain circumstances; his preoccupation with violence, his lack of remorse, a pro-criminal attitude, and a disregard for the law.

92. Relevant to the Terrorist Radicalisation Assessment Protocol 18 (“TRAP”) assessment tool, Dr Eagle noted a variety of relevant research in the field of mental illness and terrorism, some of which suggests that there is a greater prevalence of mental illness among lone actor terrorists than in the general population. Further, those suffering from mental illness are more likely to become lone attackers rather than join a terrorist group. Dr Eagle noted that “personal, social and political grievances increase susceptibility to extremist ideology and… justify violence”.

93. Using the Violence Extremism Risk Assessment - Version 2 revised (“VERA”) assessment tool, Dr Eagle identified the defendant as having demonstrated numerous features associated with a high risk of violent extremism. These include:

1. The defendant’s beliefs, attitudes and ideology: including his “commitment to an ideology that justifies violence”, his “perceived grievances” as an individual and as a member of the Muslim faith, his dehumanisation of Australians as “‘dogs’”, his “rejection of democratic society and values”, his “anger, moral outrage and hatred in response to perceived injustices”, his hostility towards Australia and Australians and his “lack of empathy and understanding for those outside [his] own group”;

2. The defendant’s social context and intention: including the defendant’s “personal contact with violent extremists” in custody, his “expressed intention to commit acts of violence extremism”, his “expressed willingness…to die for [his beliefs]”, his “susceptibility to influence, control [and] indoctrination”;

3. The defendant’s history: including his “early exposure” to violence as a child and his previous violent criminal past; and

4. The defendant’s commitment and motivation: including his motivation driven by “criminal opportunism”, “group belonging”, “moral obligation [and] superiority” and “acquisition of status”.

112. Other indications of risk highlighted by Dr Eagle include the defendant’s “Juvenile Justice System contact”, his “non-compliance with conditions or supervisions”, “violence in [his] family”, his “problematic upbringing”, “problems with school and work”, his “personality disorder” and “psychotic and schizophrenic disorder” and finally, his “substance use disorder”.

113. Dr Eagle concluded that individuals will be at a significant risk if the defendant is released from custody without a risk management strategy. She noted, however, that traditional risk management such as monitoring will not be effective until the defendant’s mental illness and substance use issues are overcome.

114. Dr Eagle opined that the defendant would need to engage in treatment and intervention for at least 1-2 years at a minimum and perhaps up to 5 years before his assessed level of risk of committing a serious terrorism offence can be reduced. She recommended that the defendant have interaction with a local mental health service, with a dedicated case manager and a multidisciplinary team with the requisite experience. Regular forensic psychiatric review would be necessary, together with the imposition of a Community Treatment Order (“CTO”). Dr Eagle thought the use of injectable antipsychotic medication was necessary, with supervision of daily oral medications.

115. The doctor also recommended drug rehabilitation, but warned that the defendant may not be accepted into a programme due to his aggression issues. She suggested alternative group or individual outpatient interventions for his first year of abstinence, coupled with individual psychological therapy to address psychological vulnerabilities, the impact of his prior trauma and prosocial cognitions.

116. Also important in the doctor’s opinion will be suitable stable accommodation, meaningful work, and participation in a PRISM programme to “’de-radicalis[e]’” the defendant through formal education.

117. Without adequate supervision Dr Eagle concluded that the defendant will continue to make threats and be violent, and potentially resort to the use of weapons, to intimidate the Australian government or authority figures, justified by his ideology. She thought that the conditions of supervision proposed for any ESO “appear broad and comprehensive” although, noting the defendant’s history of non-compliance, alongside his “lack of appreciation and responsibility for his offending behaviour” as well as his “pervasive disregard for all rules and laws”, she was concerned about his ability to comply with them. She emphasised the need for support and treatment alongside supervision.

118. Dr Eagle is hesitant as to the effectiveness of the proposed treatment, emphasising the need to control the defendant’s mental illness before any other intervention can be effective. Overall, she concluded that the defendant has an array of indicators that are associated with a high risk of violent extremism and warrants a “higher level of concern regarding the risk of engaging in an act of violent extremism”, particularly as a lone actor.

119. Report of Dr Ellis

120. Dr Ellis was the other of the two court-appointed psychiatrists to assess the defendant. His report is Ex 2.32. The doctor, who was provided with the same extensive documentary material as Dr Eagle, conducted an interview with the defendant on 5 February 2019, at Long Bay Correctional Centre, over a period of 3 hours. He made similar observations of the defendant as did Dr Eagle, and took a broadly consistent history from the defendant to that obtained by Dr Eagle, touching on family background, education, and drug and alcohol use.

121. The defendant told Dr Ellis that he began experiencing hallucinations at 13 years of age. He relayed to Dr Ellis his belief in black magic, Djinns (or genies), and witchcraft. He thought he was under police surveillance. He denied any thought of suicide or self-harm, and gave no history of such thoughts.

122. Dr Ellis recorded the defendant’s then current antipsychotic medication, namely Olanzapine and Aripiprazole, noting the defendant’s reported feeling of addiction to buprenorphine. The defendant told Dr Ellis that he “‘loves drugs’” and is reliant on buprenorphine to function, smoking it twice daily in custody.

123. The doctor reviewed the defendant’s juvenile and adult criminal history, as well as his institutional charges. He noted that the defendant worked in the prison kitchen making chocolate. He has not undertaken any education or therapeutic programmes while in custody.

124. Like Dr Eagle, Dr Ellis noted that the defendant was an “extreme threat inmate”, who continually threatens acts of terror and asserts his desire to join ISIS from within custody. He considered that the defendant “feels that white Caucasian wealthy people are treated more leniently in the legal system than poor Muslim people”. The defendant demonstrated an attitude of being “generally angry at the political situation in the world”, but denied knowing much about jihad or having any intention to commit a terrorist act. He claimed not to fit specifically on one side or the other of the Islam/West conflict, although he proclaimed his status as “‘best friends’” with members of the Haouchar and Darwiche families. He told Dr Ellis that he “wants to be left alone and to get help for his problem with drugs and black magic”.

125. The defendant claimed that his comments about beheading individuals or sexually assaulting officers and their relatives are statements made on impulse, from anger and frustration. Dr Ellis thought that the defendant’s motivation for these statements is more likely to be psychotic persecutory beliefs rather than an intention to carry out real terrorist related violence. The doctor did, however, conclude that the defendant could act on these statements if targeted and influenced by a terrorist group or individual, or possibly when fuelled by anger, intoxication or untreated psychiatric symptoms.

126. Despite his claim not to support terrorist ideology, the defendant told Dr Ellis that he wanted to go to Goulburn Supermax so that he could be with known terrorists. He said that if the government wanted to label him as a terrorist “he will act and behave like one”.

127. In common with Dr Eagle, Dr Ellis diagnosed the defendant with schizophrenia, a substance use disorder, and an antisocial personality disorder. He thought it was possible that the defendant had a potential post-traumatic stress disorder following traumatic events of his childhood and adolescence, and suggested a future review.

128. Noting the limitations of applying any one assessment tool to gauge the risk of an individual committing a serious terrorist offence, Dr Ellis used the Historical Clinical Risk Management-20 Version 3 structured professional judgment tool to assess historical factors, clinic factors and anticipated future risk management. Relevant features to the assessment were the defendant’s history of violence as a child and adolescent, persisting into adult life and evidenced by antisocial and criminal behaviour; his “poor record of employment”; history of substance abuse; diagnosis of antisocial personality disorder; attitudes supportive of violence; history of re-offending; and a diagnosis of mental illness coupled with trauma. These features indicate a high loading of historical risk factors associated with violence in the longer term. Dr Ellis noted that the risk posed by the defendant is higher than for the general prison population of violent offenders.

129. Dr Ellis observed that the defendant had failed to demonstrate insight into his risk of violence and, despite accepting treatment, the doctor predicted that the defendant would cooperate if treatment was “on his terms only”. The defendant’s mental instability and lack of stress management techniques made for a high loading of modifiable risk factors, making his historical and unchangeable risk factors difficult to control.

130. The defendant’s “longstanding distrust of authority” and failure to adjust to institutionalisation did not auger well for rehabilitation. His “limited personal supports”, contact with criminal families, and his conflict with authorities are all indicative of a high need for professional services and management plans to minimise, or eliminate, the risk of violence. Dr Ellis specifically warned of a risk of “serious” violence, due to the defendant’s history of brandishing weapons.

131. Without treatment or supervision, Dr Ellis concluded that the defendant would present a risk for violent offending “that is statistically high in frequency with potential for serious consequence”. He highlighted the link between mental illness and terrorism, stating that there is a risk that, due to mental illness, a mentally ill individual may become a lone actor, join a terrorist group on whose behalf he would commit an act of violence, or may self-radicalise without being part of a group. The defendant has claimed that he has contact with violent extremists, although his claims have not to date been assessed as credible.

132. Dr Ellis, similarly to Dr Eagle, used the TRAP tool, concluding that the defendant’s mental illness likely causes vulnerability to anxiety and paranoia, as does his and his family’s previous interactions with the justice system. Using the VERA assessment tool, Dr Ellis stated that the defendant has no specific ideological goal, but feels that “‘the system’” is “unfair”.

133. Dr Ellis noted however, that the defendant has not researched or planned a terrorist attack; has no “fixation or pathological preoccupation” with Islam; no paramilitary training or access to funding sources; and shows no “strong identification with the warrior mentality” that other terrorists have displayed. He does not “frame his life by ideology, try to join terror groups or use virtual communities”, and nor does he display elements of tactical or creative thinking. Nevertheless, Dr Ellis opined that the defendant is “isolated and with unstable identity” and may want to align himself with a powerful group of status.

EXTENDED SUPERVISION ORDER SCHEDULE OF CONDITIONS

In these conditions:

"CSNSW" means Corrective Services NSW.

"Defendant" means [Mr M Dunn], also known as [Mr M Dunn], the defendant in these proceedings and the subject of the order.

"Electronic Identity" means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

"EO" means Enforcement Officer, that is, any Corrective Services Officer or Police Officer supervising the defendant under the order.

"Extremist material" means:

1.   material that a reasonable person would understand to be:

a.   directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts; or

b.   seeking support for, or justifying, the carrying out of terrorist acts; or

2.   material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation.

"Material" includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

5. any computer data or the computer record or system containing the data; and

6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

"NSWPF" means NSW Police Force.

"Search" includes:

1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

"Terrorist act" has the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where:

1.   The action:

a.   causes serious harm that is physical harm to a person;

b.   causes serious damage to property;

c.   causes a person's death;

d.   endangers a person's life, other than the life of the person taking the action;

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 electronicsystem including, but not limited to:

i.   an information system;

ii.   a telecommunications system;

iii.   a financial system;

iv.   a system used for the delivery of essential government services;

v.   a system used for, or by, an essential public utility; and

vi.   a system used for, or by, a transport system; and

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

the action is done or the threat is made with the intention of:

a.   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

b.   intimidating the public or a section of the public; and

4.   the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person's death, endanger the life of a person, or create a serious risk to the health and safety of the public.

"Terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State / ISIS and Jabhat al Nusra.

PRESCRIBED CONDITIONS: s. 29(1A) of the Terrorism (High Risk Offenders) Act 2017

1.   The defendant must:

(a)   submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements), and

(b)   wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment, and

(c)   live at an address approved by an enforcement officer and notify an enforcement officer of any intention to change the offender's address or living arrangements, and

(d)   not leave New South Wales except with the approval of the Commissioner of Corrective Services, and

(e)   submit to the search of the offender's person and residence and the search and seizure of the offender's vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the offender's control, and

(f)   comply with rules or by-laws (or both) of any approved accommodation for the offender, and

(g)   not use prohibited drugs, or obtain drugs unlawfully or abuse drugs lawfully obtained, and

(h)   submit to drug and alcohol testing, and

(i)   not possess or use any of the following:

i.   a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

ii.   a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

iii.   a spear gun,

iv.   an explosive substance intended, by the eligible offender, to be used in an explosive device,

v.   a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the eligible offender, to be used as a fuse or detonator for an explosive device (as the case may be), and

(j)   be available for interview at such times and places as an enforcement officer (or the officer's nominee) may from time to time direct, and

(k)   undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an enforcement officer, and

(I)   not start on the offender's own initiative any job, volunteer work or educational course without the approval of an enforcement officer, and

(m)   obey any reasonable direction by an enforcement officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information), and

(n)   permit an enforcement officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, and

(o)   notify an enforcement officer of any intention to change the offender's employment if practicable before the change occurs or otherwise at his or her next interview with an enforcement officer, and

(p)   not associate (including using third parties) with any person or persons specified by an enforcement officer, whether face to face or by written correspondence or electronic means, and

(q)   not change the offender's name or use any other name without notifying an enforcement officer, and

(r)   not frequent or visit any place or district specified by an enforcement officer.

ADDITIONAL CONDITIONS: s. 29(1) of the Terrorism (High Risk Offenders) Act 2017

2. The defendant must truthfully answer questions from his EO about where he is, where he is going, who he is with and what he is doing.

3. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his EO

4. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his EO.

5. The defendant must surrender any passports held by the defendant to his EO.

6. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his EO.

7. The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of his EO.

8. The defendant must not transfer money or money's worth to another person totalling an amount over the value of $500 per period of 7 days, whether by cash, cheque or electronic transfer, without the permission of his EO.

9. The defendant must not transfer any funds outside Australia without the written permission of his EO.

10. The defendant must inform his EO of the identity of any person with whom he does, or is likely to, regularly associate.

11. The defendant must not:

a.   associate with or otherwise affiliate with other persons or with organisations advocating support for engaging in any terrorist acts;

b.   associate with people who are consuming or under the influence of illegal drugs or alcohol, unless the EO approves the defendant to associate with persons consuming or under the influence of alcohol;

c.   attend, enter or seek to enter any custodial facility, or place where prisonersare held, or juvenile place of detention without prior approval of his EO; or

d.   contact, attempt to communicate or otherwise associate with any person held in custody as a sentenced prisoner, or held on remand bail, or held in juvenile detention without prior approval of his EO.

12. The defendant must not possess or consume alcohol without the approval of his EO.

13. The defendant must obtain written permission from his EO prior to joining or affiliating with any club or organisation, including any internet or mobile-based social networking service.

14. The defendant must not engage in any act, or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.

15. The defendant must not possess or use any of the following, without his EO's prior approval:

a.   any article or device, not being such a firearm, capable of discharging by any means:

i.   any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or

ii.   any substance capable of causing bodily harm.

b.   a knife outside his approved accommodation;

c.   any other implement made or adapted for use for causing injury to a person;

d.   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or

e.   a laser pointer.

16. The defendant must not purchase, hire or drive any vehicle without the prior approval of his EO.

17. The defendant must tell his EO of the colour, make, model and registration of any vehicle registered to the defendant or that the defendant intends to drive.

18. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order.

19. The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

a.   material which has been refused classification or is classified as Refused Classification;

b.   material classified as R18+ (for reason of violence) unless permitted by the EO; or

c other material as directed by his EO for reasons related to concerns regarding violence or for reasons related to his risk of committing a serious terrorism offence (including extremist material).

20. The defendant must not use any alias, electronic identity, log-in name, or a name other than "[...]" or use any email address other than those known to his EO, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

21. The defendant must give his EO a list of all devices, services and applications he uses to communicate with or to access the internet and advise his EO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

22. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to his EO and the device has been seen and approved for use by his EO.

23. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

24. The defendant must provide his EO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications and communication platforms of any kind.

25. The defendant must not use any coded or encrypted messaging application or service.

26. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.

27. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of his EO, including but not limited, to use of internet-based email, instant messaging services, online community services and other telecommunications-based services including text and voice services.

28. The defendant must provide consent for his EO (or any other person requested by his EO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

29. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device.

30. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with his EO.

31. The defendant must not significantly change his appearance without the approval of his EO.

32. The defendant must let his EO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

33. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide his EO with such details.

34. The defendant must notify his EO of the identity and address of any healthcare practitioner that he consults.

35. If made subject to a Community Treatment Order the defendant must comply with the requirements of the Community Treatment Order including all medication requirements.

36. The defendant must attend, upon the direction of his EO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

37. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

38. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his EO within 24 hours of ceasing to take the medication.

39. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with his EO.

40. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, his EO, NSWPF and CSNSW.

**********

Amendments

23 April 2019 - Typographical error amended.

Decision last updated: 23 April 2019