State of New South Wales v Dunn (a pseudonym)

[2018] NSWSC 1008

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008

Hearing dates:

5 June 2018 and 18 June 2018

Date of orders:

19 June 2018

Decision date:

29 June 2018

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) An order pursuant to s 38(5) of the Terrorism (High Risk Offenders) Act 2017:

 

(a) appointing two qualified psychiatrists to conduct separate psychiatric examinations 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) directing the defendant to attend those examinations.

(2) An order pursuant to ss 41 and 42(1) of the Act, that the defendant be subject to an interim detention order from 20 June 2018 for a period of 28 days.

Catchwords:

TERRORISM HIGH RISK OFFENDER – Application for an interim detention order and the appointment of two psychiatrists to assess the defendant sought by the State under the Terrorism (High Risk Offenders) Act – Whether test under s 41 for an interim detention order is satisfied – Whether test for the appointment of psychiatrists under s 38(5) is satisfied

Legislation Cited:

Commonwealth Criminal Code, ss 80.2C, 100.1, 474.17, Pt 5.3
Crimes Act 1900 (NSW), s 203C(1)
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5C
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4, 7, 10, 11, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42

Cases Cited:

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
New South Wales v Manners [2008] NSWSC 1242
New South Wales v Sotheren (Preliminary) [2018] NSWSC 754
State of New South Wales v Haouchar [2015] NSWSC 798
State of New South Wales v Jones [2018] NSWSC 459
State of New South Wales v Pacey (Final) [2015] NSWSC 1983
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of NSW v Barrie (Final) [2018] NSWSC 1005
State of NSW v Ceissman [2018] NSWSC 508

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
John Agius SC / Surya Palaniappan (Plaintiff)
Matthew Johnston SC (Defendant)

  Solicitors:
Crown Solicitors Office (Plaintiff)
Malouf Criminal Lawyers (Defendant)

File Number(s):

2018/148703

Publication restriction:

Nil

Judgment

1. On 19 June 2018, I made interim orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”) in this matter as set out in [159] below. I indicated at that time that I would publish my reasons on 29 June 2018. These are my reasons for making those orders.

2. By summons filed on 11 May 2018, the State of New South Wales (“the State”) seeks a continuing detention order (“CDO”) against the defendant under the THRO Act. At the time that the application was made, the defendant was serving a sentence which expired on 20 June 2018. That sentence was not imposed in relation to a terrorism offence nor has the defendant ever been convicted of a terrorism offence.

3. The defendant is a 28-year old man of the Islamic faith. He has a long history of violence and a sustained and well-documented hostility towards police. He has expressed his support of Islamist terrorist organisations and has expressed a desire to fight overseas with his “Muslim brothers”. He has more recently developed a strong dislike of persons in authority, including correctional officers, judicial officers and the Australian Government. He has made direct threats to behead, kill and/or rape officers and/or members of their families and is alleged to have made specific threats to bomb a police station and a public event.

4. The THRO Act was enacted on 22 November 2017 and commenced operation on 6 December 2017. 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) (“CHRO Act”), there are some significant differences. I note that this is the first application made for a CDO under the THRO Act since its enactment.

5. At the preliminary hearing before me on 5 June 2018, the State sought an interim detention order (“IDO”) to operate from 20 June 2018 (for a period of 28 days) and the appointment of two psychiatrists to report on the defendant. Mr John Agius SC appeared with Ms S Palaniappan for the State of New South Wales and Mr Matthew Johnston SC appeared for the defendant. A significant amount of supporting material was relied upon by the State in this preliminary hearing.

6. The defendant formally opposed any IDO and submitted that an interim supervision order (“ISO”) should be imposed instead.

7. I note that on 18 May 2018, Bellew J made suppression orders in relation to these proceedings. I varied those orders on 5 June 2018 to require the use of certain pseudonyms. Accordingly, I propose to use pseudonyms for the defendant, his wife and other family members.

The relevant legislation

8. 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.”

9. Section 4 of the THRO Act defines “serious terrorism offence” as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty of seven or more years of imprisonment applies. Section 10 of the THRO Act defines what is meant by “convicted NSW terrorism activity offender” as follows:

“Convicted NSW terrorism 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:

……..

(c) the offender:

(i) has made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts, or

(ii) is associated or otherwise affiliated with other persons or with organisations advocating support for engaging in any terrorist acts.”

(emphasis added)

10. Section 4 of the THRO Act defines a “terrorist act” as having the same meaning as in Part 5.3 of the Commonwealth Criminal Code. That definition is to be found in s 100.1(1) of the Code as follows:

“‘terrorist act’ means 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.

(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.”

11. 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.

12. Section 11 of the THRO ACT provides for matters that this Court may take into account in determining whether an eligible offender is, inter alia, a convicted NSW terrorism activity offender. Those matters include, relevantly: any relevant terrorism intelligence (s 11(d)); 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 (s 11(e)); 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) (s 11(f)); and any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody) (s 11(g)).

13. Part 2 of the THRO Act (ss 19-32) concerns extended supervision orders (“ESO’s”) and Part 3 of the THRO Act (ss 33-49) concerns CDO’s.

14. Section 20 of the THRO Act provides that the Court may make an ESO if a number of statutory prerequisites are satisfied. The offender must be either in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence or otherwise under an ISO, ESO, IDO or CDO (s 20(a)); the application must be made in accordance with Part 2 (s 20(b)); the Court must be satisfied, relevantly, that the defendant is a “convicted NSW terrorism activity offender” (s 20(c)(iii)); and the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not supervised under the order (s 20(d)).

15. Section 34 of the THRO Act provides that the Court may make a CDO if a number of statutory prerequisites are satisfied. The offender must be either a “detained offender” or “supervised offender” (s 34(1)(a)); the application must be made in accordance with Part 3 (s 34(1)(b)); the Court must be satisfied, relevantly, that the defendant is a “convicted NSW terrorism activity offender” (s 34(1)(c)(iii)); and the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order (s 34(1)(d)).

16. Section 35 of the THRO Act provides that, for the purposes of Part 3, the Supreme 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.

17. Section 36 of the THRO Act provides that the State of New South Wales may make an application for a CDO. Section 37 sets out the requirements for the making of such an application. An application may only be made in relation to either a detained or supervised offender and, if an application is made in relation to a detained offender, such application may not be made more than 12 months before the end of the offender’s total sentence or the expiry of an existing CDO. An application must be supported by documentation that addresses each of the matters referred to in s 39(3) of the THRO Act and must include a report prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert that assesses the likelihood of the eligible offender committing a serious terrorism offence.

18. Section 38 of the THRO Act provides for the necessary pre-trial procedures. Significantly, s 38(4) provides that a preliminary hearing into the application is to be conducted within 28 days after the application is filed or within such further time as the Supreme Court may allow. Section 38(5) provides that “if, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make order that two psychiatrists and/or psychologists or a combination thereof to conduct separate examinations and to furnish reports to the Court on the results of those examinations. The eligible offender is to be directed to attend those examinations.”

19. Section 39 of the THRO Act provides for the final determination of a CDO application. Section 39(1) provides that Court may determine an application under Part 3 in one of three ways: by making an ESO, by making a CDO or by dismissing the application. Section 39(2) provides that in determining whether or not to make a CDO or ESO, “the safety of the community must be the paramount consideration of the Supreme Court.” Section 39(3) of the THRO Act provides that, in determining whether or not to make a CDO or an ESO, the Court must also have regard to the matters therein enumerated, in addition to any other matter it considers relevant. I shall return to the relevant mandatory considerations on this preliminary application below. Section 39(4) provides that, in determining whether or not to make a CDO, the Court is “not to consider the ability to take action for a breach of [an ESO] in relation to whether there is an unacceptable risk of the eligible offender committing serious terrorism offences.”

20. Section 40 of the THRO Act provides for the length of any CDO. Relevantly, it provides that a CDO expires at the end of the period specified in the order which must not exceed three years from the day on which it commences. Section 40(3) provides that a CDO is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.

21. Section 41 of the THRO Act provides that the Court may make an IDO against an eligible offender, in proceedings on an application for a CDO, if it appears to the Court that the offender’s current custody (if any) will expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO.

22. Section 42 of the THRO Act provides that an IDO must not exceed 28 days, that such an order is suspended during any period the offender is in lawful custody (whether under this or any other Act or law) and that an IDO can be renewed from time to time, but the detention of an eligible offender under an IDO cannot total more than three months.

Relevant principles

23. There has only been one previous decision considering the THRO Act, which was for an interim supervision order: State of NSW v Ceissman [2018] NSWSC 508. In addition, there are numerous decisions of this Court concerning the CHRO Act. It was common ground at the hearing that, where the same statutory language is used, guidance could be obtained from those decisions.

24. As with the CHRO Act, the phrase “unacceptable risk” is not defined in the THRO Act. The parties agreed that, as with the test in the CHRO Act, the phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA). In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]):

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

25. These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that, “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

26. In State of NSW v Ceissman [2018] NSWSC 508, Rothman J adopted the observations of Harrison J in State of NSW v Pacey quoted above at [24] (although preferring the term “insignificant” rather than “very low”) and observed:

“[30] The Court is required to look at risks that are not insignificant and which, on the material before the Court, if proved, would result in serious harm for which the Court ought prescribe precautions. The term “insignificant” is used not in its meaning as “not important”, but, rather, as meaning “not fanciful” or “not ephemeral”.

[31] To utilise two deliberately extreme examples: if the risk were the detonation of a nuclear missile involving the death of many, only a very slight probability may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a high probability of its manifestation may not render the risk unacceptable.

[32] Once that equation has been evaluated, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk. The high degree of probability does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk: Cornwell v Attorney General of NSW [2007] NSWCA 374 at [21], in regard to which one must now consider the terms of s 21 of the THRO Act (and 5D of the CHRO, although there are differences in wording that may be significant). The task is an evaluative one: State of NSW v Thurston [2018] NSWSC 421, per Garling J quoting Lynn v Stateof NSW (2016) 91 NSWLR 636; [2016] NSWCA 57.”

27. His Honour also observed at [38] that “[d]iscretionary factors would need to be strong before the Court, at an interim proceeding, would refuse to order, after necessarily concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level.”

28. The relevant inquiry under s 34(1)(d) of the THRO Act is the risk of the defendant carrying out a “serious terrorism offence”. This would include the offences of planning or doing any act in preparation for a terrorist act (s 101.6 of the Commonwealth Criminal Code) and possessing “things” connected with terrorist acts (s 101.4 of the Commonwealth Criminal Code).

29. As to whether the defendant is a “convicted NSW terrorism activity offender”, the question is whether he has “made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts” and/or “is associated or otherwise affiliated with other persons or with organisations advocating support for engaging in any terrorist acts”: s 10(1)(c) of the THRO Act. Section 80.2C(3) of the Commonwealth Criminal Code relevantly provides that a person “advocates” the doing of a terrorist act or the commission of a terrorist offence if the person “counsels, promotes, encourages or urges the doing of a terrorism act or the commission of a terrorism offence”. The THRO Act does not define “advocates”. Advocating support for engaging in any terrorist acts (s 10(1)(c)(i) of the THRO Act) is a step removed from advocating the doing of a terrorist act. That is, the statements that fall within the terms of s 10(1)(c)(i) need not themselves advocate or promote the doing of terrorist acts. Rather, the statements need only involve advocating support for engaging in any terrorism act.

27. As for s 10(1)(c)(ii) of the THRO Act, a defendant will also fall within the terms of s 10(1)(c) if he or she is “associated or otherwise affiliated with” other persons or with organisations advocating support for engaging in any terrorist acts. Although the State primarily relies upon s 10(1)(c)(i), it also relies upon material suggesting that the defendant is affiliated with ISIS based on statements he has made. It was submitted by the State that the phrase “associated or otherwise affiliated with” captures a variety of relationships. I accept that such a construction would be consistent with the broad protective purpose of the legislation.

28. The test in s 38(5) of the THRO Act, relevant to a preliminary hearing, has been likened to that of committal proceedings. For instance, in New South Wales v Sotheren (Preliminary) [2018] NSWSC 754, Johnson J said at [23]:

“At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General (NSW) v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiffs case at its highest: New South Wales v Manners [2008] NSWSC 1242 at [8]; New South Wales v Brookes [2008] NSWSC 150 at [13].”

32. The question of whether documentation would, if proved, justify the making of either a CDO or an ESO, for the purposes of satisfying s 38(5) requires consideration of the tests in s 20(d) of the Act (application for an ESO) and 34(1)(d) of the Act (application for a CDO). That is, would the court be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised. There is no express provision in the THRO Act as to the interplay between the respective tests in ss 20(d) and 34(1)(d) of the THRO Act. Following recent amendments to the CHRO Act, the same statutory language is now included in that Act in ss 5B(d) (ESO) and 5C(d) (CDO) of the CHRO Act.

33. I considered the analogous provisions in the CHRO Act in State of New South Wales v Jones [2018] NSWSC 459 (“State of NSW v Jones”). In that matter I determined that the question involved a two-step process. By way of analogy to the present application, the first step is to consider whether the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing [a serious terrorism offence] if not kept in detention under the order. The second step is to consider the mandatory considerations in s 39(3) of the Act in order to determine whether the court would dispose of the application by way of a CDO or an ESO.

34. I was invited to apply the same approach in the present matter. Despite this, senior counsel were not in agreement as to the order in which the satisfaction of the respective tests in s 20(d) and s 34(1)(d) should be considered as part of this second step. On behalf of the State it was argued that a “ladder down” approach should be adopted. That is, only if s 34(1)(d) was not satisfied would the court go on to consider whether an ISO was appropriate. The opposite was argued on behalf of the defendant. That is, Mr Johnston submitted that the starting point should be supervision rather than detention and that the court would only consider an IDO/CDO if a supervision order would not be sufficient. He submitted that this approach is consistent with the importance of the liberty of the subject which should be given paramount importance.

35. Since making these interim orders, I have had occasion to reconsider the approach I took in State of NSW v Jones in State of NSW v Barrie [2018] NSWSC 1005 (“State of NSW v Barrie”). That decision was delivered at the same time as these reasons. In State of NSW v Barrie, I held that the relevant consideration involves one step rather than two.

36. As I observed in State of NSW v Barrie, in most cases, the question of whether a one-stage or two-stage test is applied will not make any difference to the result so long as the relevant mandatory considerations are considered. As I observe below at [157], it would not have made any difference in the present application whether the consideration of s 34(1)(d) is undertaken by reference to a one or two step approach. The problem with a two stage test, however, as I observe in State of NSW v Barrie, is that it means that a decision has already been made by the Court at the end of the first step that it is satisfied to a “high degree of probability” that the relevant offender poses an unacceptable risk of committing a [serious terrorism offence] if not detained before turning to consider whether to impose an IDO/CDO or an ISO/ESO. I can see no textual basis to require the Court to consider s 34(1)(d) twice: once without necessarily having regard to ss 39(2) and 39(3) and then again having regard to those mandatory factors.

37. In any event, I approached this application consistently with the approach I took in State of NSW v Jones. I did not consider the question by way of either a “ladder up” or a “ladder down” approach. Rather, I considered both options of an IDO and an ISO having regard to the relevant mandatory considerations in ss 39(2) and 29(3) of the THRO Act.

38. The first question for my determination at the preliminary hearing was thus whether, first, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of either a CDO or an ESO. That is, would the Court be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised. If so I must make orders appointing two psychiatrists to furnish reports to the Court on the results of those examinations: s 38(5) of the THRO Act.

39. Second, if I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO and it appeared to me that the defendant’s “current custody” would expire before this application is determined I could impose an IDO as sought by the State.

40. Third, in order to be satisfied that an IDO was necessary as opposed to an ISO (which was not opposed by the defendant) I had to be satisfied that the material, if proved, would lead a Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence unless detained for the period of the IDO.

The evidence

41. As is often the case in applications made under the CHRO Act, the State relied upon a significant amount of material in support of this preliminary application comprising the following: Two affidavits of Christopher Butler affirmed on 11 May 2018 (exhibiting CB-1) and 25 May 2018 (exhibiting CB-2); Affidavit of Benjamin Hopper Sworn on 3 May 2018; Affidavit of Marcin Klimiuk sworn on 9 May 2018; Affidavit of Christopher Sakr sworn on 10 May 2018; Affidavit of Cherice Cieplucha affirmed on 15 May 2018; Affidavit of Dastan Kordy sworn on 15 May 2018; Affidavit of David Claydon Sworn on 17 May 2018; Affidavit of Kristi-Lee Wright affirmed on 17 May 2018; Affidavit of Alex Turner affirmed 17 May 2018; and the Affidavit of Naomi Prince affirmed on 25 May 2018.

42. The exhibited material includes statements and an Electronically Recorded Interview of a Suspected Person (“ERISP”) in relation to the defendant’s recent and pending charges, transcripts of recorded telephone conversations between the defendant and his wife whilst he has been in custody, extensive Offender Integrated Management System (“OIMS”) notes (which record certain contact with the defendant whilst in custody), expert reports, a Risk Assessment Report (“RAR”), charge sheets, criminal and custodial history, sentencing remarks and other documentation.

43. The defendant did not rely upon any evidence at the preliminary hearing. Despite this, senior counsel for the defendant indicated that a number of factual matters are disputed and a hearing on those facts would be necessary at the final hearing in this matter.

44. Accepting that this is only a preliminary application, the test I must be satisfied of is a low one. It was accepted on behalf of the defendant that there was sufficient material before the Court to justify the interim orders. The only significant issue in dispute was whether I would impose an IDO or an ISO. But the test in s 38(5) is an evaluative one. This means that I must be independently satisfied that the information contained in the supporting documentation satisfies the relevant statutory criteria before making the orders sought under the Act: New South Wales v Manners [2008] NSWSC 1242 at [4] per Johnson J.

45. I am mindful of the fact that this is the first application for a CDO/IDO under the THRO Act. In the circumstances I propose to set out in some detail the material put before the Court. Much of the evidence of the defendant’s threats in recent years have been recorded either electronically or in detailed notes which attempt to record the actual words spoken by the defendant. In order to accurately reproduce these threats in this judgment I have not attempted to summarise them but have instead extracted them in full at some length. This has meant that these reasons are necessarily longer than would otherwise be the case on a preliminary application of this nature.

46. I have addressed the material relied upon by the State in support of this application under the relevant headings in s 39(3) of the THRO Act because that is the relevant provision in any application for a CDO. In summarising the material before me I proceed on the assumption that it would be proved at the final hearing in this matter.

The defendant’s personal circumstances

47. The defendant is 28 years old. He was born in Pakistan. He is of the Islamic faith. When he was 11 years of age he emigrated to Australia with his older brothers whilst his parents remained in Pakistan. His older brothers did not adequately supervise him and assaulted him on a number of occasions.

48. In 2003, four of the defendant’s brothers were convicted in relation to a number of “gang rapes”. His father came to Australia for the trial but later returned to Pakistan. His father is now deceased. In 2004, one of his brothers was killed by a taxi driver. He died in the defendant’s arms. The taxi driver was charged with murder and relied upon self-defence. This was accepted by the jury and he was acquitted. As a result of these two early encounters with the criminal justice system through his brothers, the defendant does not accept that the Australian criminal justice system is fair.

49. In 2005, the defendant’s mother and younger brother moved to Australia. The defendant is estranged from his family due to his violence. The defendant is either married or partnered to a woman, CD, who has converted to Islam for the defendant. I shall refer to CD as his wife. The defendant has no children.

The offender’s criminal history… and any pattern of offending behaviour disclosed by that history: s 39(3)(j)

50. The defendant’s criminal history commenced in 2003. He was sentenced in the Bidura Children’s Court for assaulting police when they arrived at a house party on 12 June 2003. The Statement of Facts in relation to that matter notes that he said to police “I’m going to get a gun and put a bullet through your head copper cunts”. He also made threats that he would blow up police vehicles with petrol.

51. In 2004, the defendant was charged with assault occasioning actual bodily harm and common assault in relation to an attack on his younger sister. The police facts alleged that he struck her in the face with his hand and a metal cooking spoon, kicked her to the stomach three times, choked her and punched her in the head. She required hospitalisation. The defendant appeared in the Children’s Court on 22 October 2004 for this matter. He was placed on a bond without a conviction being entered.

52. Between 4 and 26 April 2007, the defendant committed a string of armed robberies. On 29 May 2008, he was sentenced to imprisonment for three years with a non-parole period of two years. On 13 September 2007, while the defendant was in custody for those offences, he received a sentence of two months imprisonment with respect to an assault occasioning actual bodily harm and stalking and intimidation.

53. In 2012, the defendant was convicted and sentenced to six months imprisonment in relation to two break and enters that involved stealing and damaging property.

54. On 22 May 2013, the defendant assaulted his younger brother and threatened police when he was arrested. He was sentenced to 16 months imprisonment with a seven-month non-parole period. He was released to parole on 4 February 2014 but he robbed a “7-11” at Blacktown of cigarettes worth $14,000 nine days later. He was apprehended with his co-offender by police while still in the store. He was returned to custody on 14 February 2014. On 27 June 2014, he was sentenced to imprisonment for 32-months with a non-parole period of 22 months.

55. Whilst in custody on 10 May 2014, the defendant threw urine in the face of a Corrective Services Officer stating “you fucking dogs I want my property. The next one of you cunts that comes in here I am going to punch on with. You’re nothing but a bunch of cunts. Just wait till you get yours you dogs”. On 23 February 2015, the defendant was sentenced to eight months imprisonment with a non-parole period of six months in relation to a charge of assaulting a law officer.

56. On 28 July 2016, the defendant was charged with seven counts of destroying or damaging property and one count of stalk/intimidate, relating to events that occurred at an Avis car rental company outlet. On 10 April 2017, the defendant was sentenced in relation to these matters to eight months imprisonment with a non-parole period of four months.

57. On 12 May 2017, the defendant committed further offences in custody of stalking or intimidation with intention of causing the other person to fear physical or mental harm. He had called his mother and threatened to burn down her house, demanded money and threatened to kill her. He was also charged with using a carriage service to menace under s 474.17(i) of the Commonwealth Criminal Code.

58. On 17 June 2017, the defendant was released from custody but went to his partner’s home instead of his partner’s parent’s home, thereby breaching parole. On 19 June 2017, the defendant was transported to hospital in a drug-induced psychosis and made threats, again in breach of his parole. For this behaviour, he was charged with intimidation against police. The stalking/intimidation offence of 12 May 2017 and the intimidate police offence on 17 June 2017 constitute the index offences in this matter.

59. On 21 June 2017, at the first return of the intimidate police charges and at a mention of the intimation charge in relation to his mother, the defendant indicated he wished to plead guilty to all charges. He was sentenced to a head sentence of 12 months to expire on 20 June 2018 with a non-parole period of nine months to expire on 20 March 2018. His parole was revoked that day.

60. Significantly, threats were made during the sentencing proceedings on 21 June 2017 about blowing up police and bombing the “City to Surf” fun run. He was charged that same day with one count of assault police, one count of assault police occasioning actual bodily harm and two counts of intimidating police. On 26 June 2017, the defendant was charged with threaten to sabotage contrary to s 203C(1) of the Crimes Act 1900 (NSW) with respect to the threats during the sentencing proceedings. These charges are yet to be finalised

61. On 4 May 2018, the defendant appealed the sentences for the index offences handed down on 21 June 2017. The sentences for the index offences were confirmed but the sentence for the Commonwealth offence was varied by suspending the sentence and substituting a recognizance of $500 and a good behaviour bond for two years from 20 March 2018.

62. On 14 April 2018, the defendant destroyed property in his Lithgow cell. On 7 June 2018, two days after the preliminary hearing in this matter, the defendant was sentenced at Lithgow Local Court for these offences to 10 months imprisonment to commence on 7 June 2018 and to expire on 6 April 2019. The non-parole period of seven months does not expire until 6 January 2019.

Any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities: s 39(3)(l)

63. As stated above, the defendant is of the Islamic faith. The OIMS notes record that, on 17 April 2018, he stated that he prayed at the Auburn Mosque but once he was back in the community he proposed to attend the Guildford Mosque. The defendant’s wife/partner, CD, has also converted to Islam.

64. During an interview on 30 March 2016, the defendant told his LSR interviewer that he had become radicalised in his early twenties but claimed he no longer agreed with those views. Despite this, as Ms Prince notes in her RAR, the defendant has a significant history of making statements and threats supportive of politically motivated violence and revenge-based violence “in the name of Allah” and for retribution due the mistreatment of Muslims.

65. A close examination of the numerous threats made by the defendant over the years shows that they began as threats against police and Corrective Services officers. The defendant appears to have a troubling fixation with threatening to rape the wives, mothers and daughters of anyone in authority who does not give him what he wants. There is no evidence that he has in fact sexually assaulted anybody. The persistent threats of sexual assault on their own would not come within the terms of the THRO Act but they are relevant in the context of the escalation of the threats made by the defendant.

OIMS notes

66. The OIMS notes record a number of threats made by the defendant whilst in custody.

67. One OIMS note states that, after the defendant threw urine at the correctional officer on 11 May 2014, the defendant:

“…said that he was going to take out the first officer that comes in to his cell as this is what he was brought to Australia to do to cell [sic] drugs and kill all non Muslims because the white people are over in his country doing this. He said he won’t stop until he gets an officer. [He] made threats against XXX that when he gets out he will be waiting out side [sic] and he will bash me and then kill me but first he will rape my wife and daughter in front of me before he kills me.”

68. On 26 April 2015, the defendant made threats towards Australia and the Australian public in general whilst in custody. He made serious sexual threats to harm officers’ family members.

69. On 21 May 2015, he made threats to correctional staff including, “I will fuck’n blow you up cunt, I will put a bomb in your car, [i]f you knew where I am from and what we do to cunts like yous, I will rape your mother and sisters and children, I’ll then slit there [sic] throats the sluts, and I’ll blow all you [A]ussie fuckn [sic] redneck cunts up.”

70. On 19 July 2015, the defendant called Australian soldiers who were injured in Afghanistan “all dogs” and stated that they deserved what they got. He also stated that he would “piss on them if he was back in Afghanistan.”

71. On 29 July 2015, the defendant told a number of correctional staff that he was planning to denounce his Australian citizenship, give up his passport and that he would be leaving the country following his release. He also stated that he was planning to go overseas and join ISIS to fight for them.

72. On 3 and 4 August 2015, the defendant made comments that he wished to renounce his Australian citizenship and return to Pakistan. He expressed his disgust at the treatment of his family by the Courts, media and general public and of Muslims in Australia.

68. On 4 September 2015, the defendant told staff “I am going to behead all of you inbread [sic] dogs and rape your wifes [sic] and rape your children.” He also said that “I know a good slut in Centerlink [sic] that will give me all your addresses and I will find you and cut your heads off… [a]s soon as I get on the phone I’m gonna call my cousins and they will be waiting for you out the front of the gaol.”

69. On 5 September 2015, notes record that the defendant continually called out to staff “I will behead all of you, I will get your addresses and I will make one call on all of my people will come and make you a visit, then we will see what happens, you want a war, remember you started it… You think you’re safe, you think you have numbers, we have numbers out there.”

70. On 6 November 2015, the defendant made threats towards correctional staff and said that any staff that opened his door would get smashed. The OIMS notes record that he stated that “he is a FULL supporter of ISIS & was glad that the plane was shot down.” It is to be noted that on 31 October 2015 a flight was destroyed by a bomb above Egypt and ISIS claimed responsibility.

71. On 7 November 2015, an OIMS entry notes the defendant said that “he will be the first to behead a Corrective Service staff member. We are all infidel cunts and his families is [sic] going around to our homes when he finds out who we are so they can rape our wife’s [sic] and female daughters.” The author of this particular case note recorded “I BELIEVE THESE THREATS ARE REAL he said ISIS IS COMING.”

72. On 15 November 2015, an OIMS note records the defendant telling correctional staff that “he would rape our wives, daughters and mothers… he was going to come back to the Gaol in 6 months [sic] time and shot [sic] the place up. He also claims that he is a [sic] ACTIVE MEMBER OF ISIS.”

The incident on 19 June 2017

78. Two days after being released on parole on 17 June 2017, ambulance officers and police were called to an incident at the defendant’s wife’s home. He had in fact been paroled to reside elsewhere. The police officers who attended the scene have provided affidavits in these proceedings in relation to what the defendant said to them when they attended to assist ambulance officers attempting to treat the defendant. It is sufficient to note just some of the threats made to police at that time are contained in those affidavits. When they first attended his partner’s home, the defendant was clearly in a psychotic state. He was hunched over on his knees and would periodically spit into a cardboard box. He told police that “[i]t’s black magic. The woman has cast a spell on me”. When they tried to assist the ambulance officers to take him to hospital he said, inter alia, “[d]o you know who I am. I’ve been to jail [sic]. I’ve been to Goulburn Supermax.”

79. When police searched the defendant before taking him to the ambulance he said, inter alia, “You fucken dogs. You’re all gronks. I can smell you, you fucken dogs”; “If I wasn’t in these handcuffs I would grab your glock and shoot you with it. I am going to kill you all”; “You think you run this place but my boys run this fucking area. I will call the Darwich’s [sic] and the Haouchar’s and they will fucking come here in a second and fix you all up”; and “I know you are all looking for Osman Haouchar for when he gets out, I can make one call and he will be here with all the boys and fucking fix you up.”

80. Once he was placed in the stretcher bed in the ambulance the defendant stated: “I will fucking blow you all up cunts and rape your mothers and sisters. I will get you all in the name of Allah and one day you will see. Just watch”. He also repeated “Allah Akbar. Allah Akbar. Allah Akbar” and “My mother was the one helping Osama and worked with the Taliban plotting his attack and worked hand in hand with him. I will carry on what my mother did and blow up Australia.” He also stated “I never wanted to live in this fucking country anyway, I want to go to Syria and Turkey and live how real men live but fucking ASIO cancelled my passport.”

The Court proceedings on 21 June 2017

81. During the court proceedings on 21 June 2017 (in relation to the intimidation charges arising from the events on 19 June 2017 and the intimidation charge in relation to his mother), the defendant told the Magistrate that he did not wish the matter to be stood over saying “[g]ive me a sentence with no parole so I can sit on the plane straight away, as soon as I get out of gaol, and that day, I go back to my country in Pakistan, you know what I mean because for some reason, this country is not working out for me.” The defendant went on to tell the Magistrate that, on his release, he proposed to go to Pakistan or Iran or “call it terrorist country” and “I don’t give a fuck if I go to Syria, Turkey, Iran, Afghanistan, that is my country so it is nothing to do with some Aussie inbred dog telling me where to go, simple as that.”

82. At one stage during the proceedings, the Magistrate went off the bench and the defendant spoke with his Legal Aid solicitor in the courtroom. He became aggressive during this time and two police officers who remained in court have made statements of what he said at that time. Furthermore, the Police Prosecutor, who had left the court room to give the defendant and his lawyer some privacy, heard shouting from the courtroom which led her to re-enter the courtroom and request that the court monitor re-commence sound recording even through the Magistrate was not back on the bench. As a result of this, some of the threats the defendant made during this time have been electronically recorded. It is noted that the defendant disputes saying anything that is not recorded on the transcript.

83. In terms of the unrecorded statements made by the defendant, it is alleged that the defendant said words to the following effect:

“I’m going to blow up Holroyd Police and that fucking officer. I want to be judged under Sharia Law. I want to go back to Supermax, I don’t want any parole. I want to go back to Supermax with all my friends, you know, the terrorists, the Quamis. I’ll make more money than all of youse, and I’ll put out so much ice on the streets.”

84. Shortly afterwards, as described above, the Prosecutor requested the court monitor to re-commence the audio recording in the courtroom. The transcript records a police officer asking the accused to keep his leg down (he allegedly raised his leg above the restraining bar in the dock). The defendant is recorded to say the following:

“I am going to remind you of this attitude downstairs. I am going to fuck your mum doggy styles downstairs, mother fucker, you remember that. Fucking threats, they are scared of threats. Fuck, and I had the biggest party the other day when they tried to kill them people in Yemen, the terrorists, you know. I had the biggest party you know. They are telling me threats. I can’t wait for this country to be bombed. If I had my choice, I would choose City to Surf, you know, because there is a lot of fucking Malcolm Turnbull, or these mother fuckers, you know, saying that he is going to crash our Halifa(?), he is going to crash us this and that, you son of a bitch, come out of your house first and then talk. You don’t even leave your Parliament House without ten security. You want to talk about leaders, you mother fucker, grow some balls. You talk shit, you fucking weak dog.

…

I will come back out, I will tell you now. 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 of 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.”

85. It is also alleged that the defendant made a number of threats to police before and after court and that when he was taken down to the cells after being sentenced that day, he assaulted two police officers. The defendant has since been charged in relation to this conduct. Those matters are yet to be finalised.

Recorded telephone calls with his wife CD

86. Between 30 April 2017 and 22 April 2018, the defendant’s telephone conversations from custody with his partner, CD, were recorded by New South Wales Corrective Services.

87. On 30 April 2017, the defendant told his wife “Yeah - you know? I mean - I mean like including anyone is going to get knocked, including anyone that I suspect – bye bye - you know? I maybe make it to one person, I maybe make it to two people. I maybe make it to six people. If I get done on the first one I don’t care. You know? I get done. Who cares? But as long as I show them mother-fuckers and I bet you they’re going to shit their pants every day sleeping. You know?”

88. On 12 May 2017, the defendant told CD “I wish to lock you up. Like wait till I get out. I want to swear to that judge. I want to tell the judge, ‘Fuck your mum you (indistinct) dog.’ I just want to do something. I’m frustrating. Like, I just want to knock someone. I swear. I just want to knock someone and come to gaol for long time, you know?....They - as you - we get - what they wanted you know? They’ll get what they’re pushing for you know? I’ll tell them youse got what you wanted. You know? Youse want to leave a normal person alone until youse force him to do something wrong – here - he did what youse wanted, you know? I’ll them they did no coppers - I want to knock someone that does computering like that Curtis Chen for coppers are not normal coppers - actual coppers – you know?” (Curtis Cheng was an analyst who worked for NSW Police who was killed outside Parramatta police station by a person said to be acting on behalf of ISIS).

89. On 25 June 2017, the defendant told CD that “… I want to go overseas. I want to go back to Pakistan - you know what I mean?... And I seen tourists from Australia - they’re coming to Pakistan… I swear I’m going to chop their head off---”.

90. The defendant made three calls to CD on 27 June 2017. In the first call he stated the following:

“I want to live negative. I like it. You know? I want to live negative. I don’t want to have no love for disbeliever. I don’t want to have no love for Aussies. I don’t want have no love the disbelievers. I want to have only love for Muslims. In those Muslims they have disbelievers - if they like disbelievers they’re not Muslims to me. They’ll fuck them. They’re dogs. You know what I mean? That’s it. You know what I mean? No disbeliever. Well fuck every disbeliever. If my mum is a disbeliever well fuck her. You know if my aunty is a disbeliever well fuck her. If my mother knows a disbeliever - behead her, burn her head off - you know what I mean? I don’t give a fuck. You know? I don’t have - I don’t want to be here. You know - if extremist - if this is wrong that I want to be wrong. You know? I want to be them. You know? I’m them and if that’s the wrong way that I want to live the wrong way - you know? That’s it. And I swear by Allah… Yeah. I have no love for disbeliever or just my hands are tied - you know what I mean? You know? If I can turn on them I’ll turn on them. In a second - you know - in a blink and I’ll blow their head off without a reason. Without a blink. Like my brother can be a disbeliever. I will eat with him in the same place for 20 years and if I have to I’ll turn on him and I’ll blow his head off - you know? Like that - that’s it---”

91. In the second telephone call that day he stated, “I’ve got no love for them. I don’t give a fuck about them. If I get a chance – I’ll behead them. I’ll behead all of them if I could - you know?”

92. During the third telephone call to CD that day, the defendant told her that:

“…Fuck Australia, Fuck them. I can’t wait to wake up one day in the news and see there’s a big bomb blast, 100 Aussies dead, you know, mother fuckers, you know. I can’t wait for it….Then will go from there. But anyway, fuck them (indistinct) I will take the rap for it, as long as there’s a big bomb blast in Australia, there’s a big bombing, I will put my hand up for it, and I’ll be honoured to put my hand up for it and say ‘Suck shit, mother fuckers. I’m willing to do life,’ you know, I don’t call this life anything anyway. I don’t look at life as for anything, you know, I look at it as rubbish.”

93. On 26 August 2017, the defendant made two calls to CD. During the first telephone call he said to her:

“Okay. Yeah. You know? I’m still going to – I’m still going to get them. I’m still going to - I will do straight up. I’m willing to do 10 or 15 years of it. I get out - I’m going to make my passport straight away. I’m flying straight to Pakistan but I want to get them. You know? I’m going to fuck their mums. You know? I’m not going to let them go. The inbreeded dogs - you know? I’ll tell you straight up - you know? I’m not letting no mother - fucker get away with doing something to me. You know what I mean? In order make? I want to make sure a chop his hands off - not his head off - I want to chop his hands off. You know what I mean?....That copper. You know? I wanted to tell you what I want to do. I’m going to call them up. Better tell them there’s an AVO. When they come down I’m going to blast him in his head you know what I mean? The fucking dogs---”.

94. During the second telephone call that day, the defendant told CD:

“I swear I’m going to do extra prayers when I see Australia get hit by terrorists - Allah - I can’t wait for them to blow up something in Australia or like a truck or something going through people like Spain and stuff. I want to do extra praise you know? I want to celebrate.”

95. Later in the same conversation, the defendant stated “‘My problem is I’m head-fucked. My problem is to do how many Muslims are dying overseas…My problem is not to do with drugs’ and ‘I’m saying I’m head-fucked knowing that how many Muslims these dogs - the Australian Army the putrid dogs--- kill overseas’.”

96. On 6 March 2018, the defendant told CD that, if his mother came to him and told him she was dying and to come to the street, he would say, “‘No. I’m going to put a blade in one of the officer’s neck and I’ll go to Super Max for it and I’ll say - I’ll get five years for that’ and - you know, and I’ll say, ‘I’ll do the five years in SuperMax’.”

97. “Supermax” is the High-Risk Management Unit at Goulburn gaol where persons convicted and charged of terrorism offences are housed. It was accepted by the defendant’s senior counsel during the hearing that it was an available inference that the defendant’s references to wanting to go to Supermax was his desire to be housed with the inmates being detained in relation to terrorism offences. On this same issue I note that although the defendant has made a number of references to being associated with certain prisoners in Supermax and other criminals, there is no evidence before the Court that this is in fact the case.

98. On 8 March 2018, the defendant told CD:

“…I’m a normal person and they’re making me into somebody that I’m not, you know. So if they’re going to make me into somebody that I’m not and they’re going to accuse me of it and going to go on with it and treat me like that, then I have to live up to those expectations and act like those persons, you know. If you accuse someone of terrorism, a terrorism doesn’t sit with a tag at home and thinking, ‘I have to apply this way.’ A terrorist thinks of how to beat this, how to get this tag off me and kill people. That’s what he thinks. He doesn’t think that going home and sitting there, you know what I mean? A terrorist doesn’t go and say, ‘Yes, yes, yes,’ you know what I mean? A terrorist thinks how to beat the law, you know what I mean? So if they’re accusing me of terrorism, I have to become a terrorist, you know what I mean?”

99. On 1 April 2018, the defendant said to CD:

“They’re making is someone to be like that I’m not, bub, someone - you know, like what the hell, you know? It’s so (indistinct) but they’re making me (indistinct) they’re making feel important, you know.…You know what I mean? Like I like big charges, you know. Like I don’t mind….If I got Super Max, I don’t mind, but I want to go on TV…. In a way, at least, they like make me famous straight up, you know.”

.

100. On 14 April 2018, the defendant said to CD:

“Well, I swear to Allah, I’m not a Muslim if I don’t smash their head in when my case is finished. I know what I’m doing, you know. I’m going to fuck his mum then, you know…They were going to take me off everything, obviously, like, their scum, their Aussies, what do you expect? That’s what Aussies do, you know. Aussies will go to your country and call your terrorist and kill your people in the name of terrorism, you know… I don’t know man. I don’t know. I just pray to go they take me to supermax, man, light, fuck. I don’t want to hurt no-one. I’ve made so many threats, so hopefully they take me to supermax, but it doesn’t seem like it works through the threats, you know, it looks like I have to do a physically, you know.”

101. On 22 April 2018, the defendant said to CD “‘Youse wanted something, youse keep accusing me of violence, here you got it. I wasn’t a violent person but now you just keep pushing me. You’ve got it. Here, take it,’ and I’ll cop it. Eh?....If you’re a complete innocent person, too, it’s nothing to do with dramas or anything. I’m just going to grab a stranger and, you know, like, ‘Man sorry, but they keep accusing me of violence, so I have to stab him’, you know.”

The results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence: s 39(3)(c)

102. Section 39(3)(c) of the THRO Act provides that, when determining whether to make a final detention order, the Court must have regard to the “results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence”.

103. Naomi Prince is a Clinical and Forensic Psychologist who has prepared a RAR in relation to the defendant. Ms Prince is presently the Acting Manager of the “Countering Violent Extremist Programs” at Corrective Services NSW. Stephanie Scott-Smith is another senior psychologist also working in the Countering Violent Extremist Programs. The RAR is co-authored by these two psychologists based on documentation provided to them. The defendant did not take part in the clinical assessment process.

104. The RAR is very detailed. The Executive summary of it is in these terms:

“[the defendant] is a 29-year-old Australian-Pakistani male with a significant violent and non-violent offending history. He has over 150 police events recorded and over 40 charges, as well is being subject to various intelligence holdings. [He] has a long history of dislike and mistrust of the police and this appears to have generalised to other persons in positions of authority including correctional officers, judicial officers and the Australian government, [he] has expressed his support of multiple Islamic terrorist organisations over the past 10 years. He has escalated to making clear and direct threats to behead/kill/rape offices and/or their families; threatened 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”. As such, [he] has been identified as a person of interest under the Terrorism (High Risk Offenders) Act 2017 due to (i) having made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts.

Based on the current comprehensive assessment, [the defendant] has been assessed as Medium - High risk for general offending and High risk for violent offending. His overall risk profile for extremist violence, politically motivated violence and/or terrorism offences was assessed in the Medium - High range. It is noted that this assessment was conducted without the opportunity to explore file information with [the defendant]. Should he consent to engage in clinical interview it is possible alternate explanations may be provided and this may alter the overall assessment of risk.”

105. The authors note in the RAR that it is not scientifically possible to accurately predict whether an individual offender will or will not offend. In particular, it is to be noted that assessing the risk of violent extremism or politically motivated violence is comparatively new when compared with risk assessment for general violent and sexual offending.

106. The defendant’s mental health was considered in the RAR and in particular, his recent diagnosis of schizophrenia. The report includes the following findings:

“[G]iven the religious context linked to [the defendant[s] psychotic symptoms, teasing out religious/cultural beliefs from symptoms of psychosis could be complex.”

“[c]omplex personality structure which appears to be significantly influenced by cultural and religious beliefs, exposure to serious violence, inadequate parental care and supervision, and compounded trauma. [His] fixed and rigid views appear to fuel a sense of entitlement, acceptance of violence and rejection of authority; and perceived persecution.”

“[W]hilst there does appear to be a link between [the defendant’s] mental state (including mental health and drug induced psychotic states); and his threats of extremist violence or terrorist-related acts, it remains the case that [his] clear and specific threats to police, correctional staff and the broader Australian community I made with a clear and specific intent to instill fear; even if the actor violence is never realised.”

107. As for the defendant’s suitability for an ESO rather than a CDO, the authors opine that the suitability of the defendant for a supervision order is unclear and depends upon his willingness to remain drug-free and medication compliant. His threat of actual harm would be significantly increased in the event that he had a psychotic episode, whether due to mental illness or a drug induced psychosis. Ms Prince also stated in her affidavit that:

“There is no indication that he has the capacity or willingness to actively plan and/or co-ordinate a serious act of violence in a terrorism context. However, due to his underlying grievance toward police, his early exposure to militant violence, his long term stated support for terrorist groups and his expressed hostility towards the Australian Government and culture, [the defendant] may present with a predisposition toward reactive, impulsive and erratic violence. This has recently escalated toward direct terrorist threats toward police and legal system ([sic], as per his outstanding offence of Threaten sabotage.

Given that [the defendant] has not engaged in any criminogenic treatment programs or risk management planning, it is unknown if [he] has the insight or capacity to manage his personal risk scenarios.”

Other Expert Reports prepared in relation to the offender

108. On 7 December 2007, forensic psychologist Katie Seidler produced a psychological report following an assessment with the defendant on 6 December 2007. The assessment was conducted at a time when the defendant was 18 years of age and in custody prior to receiving a sentence with respect to four counts of armed robbery with an offensive weapon to which he had pleaded guilty. Ms Seidler noted that the defendant was raised in a dysfunctional and abusive family environment where he was exposed to family domestic violence, abuse. He was also exposed to significant violence and trauma during his first 11 years of life spent in Pakistan which included witnessing people being shot and killed and having his family shot at. Ms Seidler did not find that the defendant suffered from any specific psychiatric issues although he certainly suffered from difficulties as a result of his history.

109. A number of CSNSW/GEO Psychological Service Progress Notes were also included in the State’s material. These notes record assessments of the defendant at various times in the gaol between March and June 2014. While some of the notes report that the defendant had suffered from auditory and visual hallucinations and had exhibited a range of ambiguous and confusing behaviour, this was thought to be linked with illicit substance use. No history of mental illness was recorded.

110. The State’s material also included a memorandum from Justice Health dated 20 January 2017. The reason for the defendant’s referral was that he had reported delusions. He was observed as having an unstable mental state with psychotic phenomena evidence along with delusional thinking. Reference was made to the defendant’s file which had recorded instances of conspiracy related delusional thinking. During the defendant’s assessment he stated that he believed he had been cursed with “black magic” or the “evil eye” back in August 2016 when he had noticed a black rock in the toilet and a black piece of wood. The defendant made a number of further comments in a similar vein.

111. Dr Ann Marie De Santa Brigida, psychologist, rendered a report on 15 November 2017 at the request of the defendant’s solicitor in relation to his intimidation charges and using a carriage service to menace/harass/offend. Ms Brigida noted that the defendant had a long history of illicit substance abuse which started with cannabis whilst he was in year seven. At age 16 he commenced experimenting with ecstasy and MDMA. At 21 years of age he experimented with heroin, which he continued to use until age 25 at around half a gram per day. At age 25, he started using ice and was using an average of six “points” a day at least six days per week.

112. Upon her assessment of the defendant, Dr Brigida provisionally diagnosed the defendant with schizophrenia. She stated that, given his history of non-compliance with probation and parole conditions, he is likely to be non-compliant with community-ordered treatment and it is imperative that he be correctly diagnosed and treated in order for this risk to be mitigated. She also believes that there is a direct nexus between the defendant’s offending and his psychological issues.

Any report prepared by Corrective Services NSW … as to the extent to which the offender can reasonably and practicably be managed in the community: s 39(3)(d)

113. A Risk Management Report (RMR) has been prepared by Fiona Savage, who is a Community Corrections Officer with the ESO Team and endorsed by Sarah Gilmour who is the manager of the Terrorism High Risk Offender Unit. This report sets out a number of management strategies that could be used if the defendant was placed on a supervision order rather than detained. They include field visits with weekly interviews; third party contacts checks with non-association and place restrictions; electronic monitoring with weekly schedule of movements, exclusion zones and curfews; referrals to CSNSW psychological services and programs, psychiatric services; alcohol and drug testing; and monitoring and searching of electronic devices and financial statements and activities.

114. Significantly, it is noted that the defendant “has consistently demonstrated his unwillingness or inability to comply with community supervision orders. When challenged he has responded that he would prefer to return to gaol.” The focal point of the supervision of the defendant is stated in the RMR to be on:

“[r]einforcing the risk and concerns of his continued illicit drug abuse, encouraging pro-social relationships within the community, encouraging engagement with a religious support or mentor who may assist to challenge his extreme interpretation of Islam, lining (sic) to local religious centers which offer a more grounded interpretation of Islam, encouraging engagement with mental health services, monitoring his stability in the community through regular contact with his wife and vigorous checks of his movements, associations and communications in the community”.

The likelihood that the offender will comply with the obligations of the extended supervision order and the level of his compliance with any obligations to which the offender is or has been subject while on parole or subject to any other order of a court: ss 39(3)(h)-(i)

115. The defendant has had his parole revoked on four previous occasions. On 19 December 2013, his parole was revoked for lack of satisfactory accommodation arrangements. On 13 March 2014, his parole was revoked for breaching the parole condition that he be of good behaviour and not commit offences. On 8 September 2016, his parole was revoked for breaching the conditions that he obey all reasonable directions of an officer, not use prohibited drugs obtained unlawfully or abuse drugs lawfully obtained.

116. On 22 June 2017, his parole was revoked for breaching a number of conditions including that he be of good behaviour, not commit an offence, reside at a required address and not use prohibited drugs.

Custodial History

117. The defendant has a long history of poor custodial behaviour. As the RAR notes, he has an extensive history of abusing and threatening behaviour towards staff. I have examined the OIMS notes provided as part of the supporting material. In addition to the matters extracted above there are numerous other occasions where similar conduct occurred including on 31 May 2013, 12 August 2013, 9 May 2014, 22 March 2015, 23 April 2015, 24 May 2015 and 14 April 2017.

Any treatment or rehabilitation programs etc which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives: s 39(3)(f)

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 39(3)(g)

118. Cherice Ciepluca is a psychologist employed by Corrective services NSW. She has prepared an affidavit dated 15 May 2018. She is the senior psychologist with the Violent Offenders Therapeutic Program (“VOTP”) and responsible for reviewing referrals for offenders to that program. She supervises the team of psychologists providing services for the VOTP. She noted that Ms Prince reported that the defendant was eligible for the VOTP program if he was to remain in custody. She explains the basis for assessment and raised some doubt as to whether the defendant would in fact be eligible for the course. She also was unable to predict how long he would need to complete the course given his trauma history and complex personality profile. She suggested he may need additional time to do so.

119. In the RAR, the authors outlined the benefits of the Proactive Integrated Support Model (“PRISM”) team which is a multi-disciplinary enhanced case management model. Ms Prince provided a supplementary affidavit in these proceedings providing further information about PRISM. The PRISM service is designed to assist identified offenders to disengage from extremist groups or behaviours and desist from support or involvement in offending behaviour and to reintegrate into society. It commenced on a trial basis in February 2016. It focuses on prisoners about to be released to parole. In addition to psychologists it includes a Religious Support Officer.

120. Participation in PRISM is voluntary and prisoners must be found to be eligible for the programme. Usually it is aimed at persons serving a sentence for terrorism or national security offences but it is not a necessary pre-requisite. Ms Prince states that the defendant would meet the relevant indicators for suitability to the program. Those indicators include: behavioural indicators of radicalisation (eg extremist language, change in appearance, the use of ideology to justify behaviour; conflict with others due to an extreme ideology; statements promoting the use of extremist violence; and potentially a demonstrated intention to fight overseas in foreign conflict.

121. Ms Prince also provided details concerning the VOTP. Although in her RAR she stated that the defendant would benefit from the program, in her affidavit she identified some difficulties with the defendant participating in the VOTP program. Those include the fact that he would have to be willing to do the program, he would need to be assessed as “suitable” which would include being medication compliant, the cessation of illicit substance use and he would have to be accepted by the Manager of Security at the MSPC which would involve him being assessed as not posing a threat to the good order and security of the gaol. Given the defendant’s significant history of threatening and abusing custodial staff it is not known whether he would be approved.

The State’s submissions

122. The State filed detailed written submissions and supplemented them with further oral submissions at the hearing. The written submissions summarised the relevant material and set out the relevant legal principles.

123. The principal thrust of the State’s submission was that the defendant falls within the terms of s 10(1)(c)(i) of the THRO Act and is thus a NSW terrorism activity offender. If the statements made by the defendant fit the description in s 10(1)(c) then there was a sufficient basis to make the interim order. Although it was conceded that some of the threats made by the defendant are of general violence, it was submitted that there are sufficient statements to satisfy s 10(1)(c) nonetheless.

124. It was submitted that there is a temporal connection between statements made by the defendant and events happening around the world. It was foreshadowed that, at the final hearing, there will be an expert report explaining the temporal connection between matters said by the defendant and terrorist and other acts which were happening around the world at that time, including the rise of ISIS in Syria.

125. It was noted that some of the threats were, in fact, specific threats to do specific acts. The State relied upon the cumulative effect of all of the threats made by the defendant. As for the recent threats, it was accepted that the defendant disputes making the threat to blow up Holroyd Police Station but that most of the relevant conversation on that day, including other threats, were all electronically recorded. For example, the threat to bomb the City to Surf, which would be a similar target to the Boston Marathon, was made in the courtroom and recorded. It was submitted that, if it is accepted that those statements were made, then the State does not need to prove he intended it because a threat of action is a terrorist act.

126. Senior counsel went through some of the evidence including what happened in court on 19 June 2017 and the gaol recordings with the defendant’s wife. The State referred to the defendant’s threats to behead persons and sought to draw the link between beheadings and terrorist activity overseas where beheadings have been televised.

The Defendant’s submissions

127. The application was formally opposed but it was accepted that, on a practical level, given the test to be applied and the weight of the evidence, it was open to the Court to make the interim orders. The defendant’s position is that there are a number of matters that are factually in dispute and there should be no perception that there was acceptance that the relevant allegations have occurred. There is a live issue in relation to the recent charges. Some of the evidence is based on witness statements when the Magistrate had left the bench and the recording was turned off. Similarly, the recording itself will need to be checked as there are mis-transcriptions apparent.

128. It was accepted that, taking the evidence at its highest, there is content in the recorded material which is capable of satisfying the test. However, it was submitted that at a final hearing, issues of context and other subjective material will come into play.

129. It was noted that the defendant has mental health issues. There are questions in the recorded telephone conversations with the defendant’s wife suggesting that he may not have been taking his medication during that period. The psychosis witnessed by police on 19 June 2017 appears to have been drug induced. He had to be sedated. By the time of the final hearing, if the defendant does not have access to illicit substances, then the question of the stability of his mental health compliance with medication may be different. It was submitted that his mental health is a dynamic issue.

130. Although Mr Johnston accepted the prima facie test to be applied at preliminary hearings such as this in general terms, he did not accept that reliability and credibility play no part in assessing the material at this preliminary stage. For example, a single allegation made by a “floridly lucid informer” could be put to one side. It was accepted that was not the case before the Court but as a general proposition there may be cases where reliability and credibility could play a role in consideration of the test at the preliminary stage.

131. It was submitted that a factor militating in favour of an ISO rather than a IDO is the fact that, although the defendant had previously been paroled on four occasions, the conditions of an ESO are much more onerous than any conditions he has ever been under on a parole order.

Consideration

132. At the time that I made the orders under s 38(5) of the THRO Act on 19 June 2018 I was satisfied that the matters in the supporting information would, if proved” justify the making of either a CDO or an ESO in relation to the defendant: s 38(5) of the THRO Act. That was on the basis that the State had established that the material if proved could satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained (s 34(1)(d)) or supervised (s 20(d)). It was on that basis that I made the orders under s 38(5) of the THRO Act appointing two psychiatrists to furnish reports to the Court on the results of those examinations.

133. As stated above, the statutory prerequisites for making an ESO are provided for in s 20 of the THRO Act and the statutory prerequisites for making a CDO are found in s 34 of the THRO Act. They are in similar terms. Given that the State’s application is for a CDO I considered the statutory requirements in s 34(1) of the THRO Act for the purposes of this preliminary hearing.

134. At the time of the making of these orders it was common ground that the defendant was an eligible offender within the meaning of s 7 of the THRO Act in that he is over 18 years of age and was serving a sentence of imprisonment for an NSW indictable offence which expired on 20 June 2018. As for s 34 of the THRO Act, it was not disputed that the offender was a detained offender (34(1)(a)) and that the application for the CDO was made in accordance with Part 3 of the THRO Act (s 34(1)(b)).

135. The third statutory precondition in s 34 is that the Supreme Court is satisfied that the offender is a “convicted NSW terrorism activity offender”. In accordance with s 11(e), (f) and (g) of the THRO Act, I have had regard to the offender’s criminal history and pattern of offending behaviour disclosed by that history, the results of relevant experts as to the defendant’s history of behaviour, the defendant’s developmental and social factors and his behaviour whilst in custody. Having regard to those matters and all of the material before me I was satisfied for the purposes of this preliminary hearing that the defendant falls within the definition of being a “convicted NSW terrorism activity offender” for the purposes of s 10(1)(c)(i) of the THRO Act. The defendant has made statements advocating support for engaging in terrorism acts. He has been making threats towards police officers, corrective service officers and other persons in authority since he was 13 years of age. The material shows me that there has been an escalation in these threats in recent years. Since about 2014, the threats have started to include references to his support for ISIS, his anger at Australian soldiers overseas, the perceived mistreatment of Muslims and to specific threats to commit violence to further his cause.

132. As for the final statutory precondition, when ss 34(1)(d) and 38(5) are read together, the relevant test is whether I am satisfied that, if the supporting information before me was proved, the Court would be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not either supervised or detained under either a CDO or an ESO. It is accepted that this threshold at this preliminary stage is a low one.

133. In determining whether this threshold test is satisfied, I had regard to the factors in s 39(3) of the THRO relevant to this preliminary hearing summarised above under the relevant headings and I do not repeat them here. I have had particular regard to the defendant’s lengthy history of unprovoked violence in the context of the defendant’s recent threatening statements which I have summarised in some detail in this judgment. Some of those statements endorse participation in terrorist acts.

134. It is of significant concern that the defendant has never taken part in any programs to address his violent offending. There is nothing to suggest that his attitude has changed in that regard. It is also of significant concern that it has recently been suggested that the defendant may be suffering from a form of schizophrenia. The reports are unclear as to whether his psychosis is drug induced or otherwise but the fact remains that he is currently prescribed medication. What is not clear is the extent to which he has been compliant with his need to take such medication. I have had regard to the observations in the RAR to the effect that it is to some extent a complex exercise to disentangle the applicant’s mental health issues with the threats he has made. Despite this, as the authors of the RAR noted, the fact remains that the defendant has made clear and specific threats to police, correctional staff and the broader Australian community. Even if the acts of violence are not realised the threats are made with a clear and specific intent to instil fear.

135. I have had regard to the fact that the defendant has not acted upon the serious threats he has made in the past but the fact remains that the threats have escalated in more recent times and the defendant has been assessed as a medium-high risk for general offending and high risk for violent offending. His overall risk profile for extremist violence, politically motivated violence and/or terrorism offences was assessed on the medium-high range.

136. I have not viewed any of the threats made in isolation. Rather, I have examined them in the context of all the material. The evidence suggests that the defendant does have the ideological motivation necessary to execute a terrorist act. This would more likely be in the form of an act done alone rather than as part of any organised activity. When that is combined with his poor impulse control, his mental health issues and illicit drug use then it seems to me that there is a real risk that the defendant will commit a serious terrorism offence. Consistent with the decisions concerning the meaning of “unacceptable risk” referred to above at [24]-[27], I have had regard to the fact that the risk in relation to the defendant is of the commission of a very serious event. This means that the probability of that event occurring need not be as high as the probability of a less serious event occurring in order to render the risk “unacceptable” within the meaning of the statutory test.

137. At this preliminary hearing of the State’s application for a CDO it is not necessary for the State to establish that the matters in the supporting information “would, if proved” justify the making of a CDO. It is sufficient if it would justify the making of either a CDO or an ESO in relation to the defendant: s 38(5) of the THRO Act. Having regard to all of the matters set out above I was satisfied that this test has been satisfied. Accordingly, I made the orders appointing the two psychiatrists to examine the defendant.

Should an IDO be imposed?

142. The State also sought an IDO in accordance with s 41 of the THRO Act. This application was brought on the basis that, as at the preliminary hearing on 5 June 2018, the defendant’s current sentence was due to expire on 20 June 2018.

143. On 7 June 2018, two days after the preliminary hearing, the defendant was sentenced at Lithgow Local Court in relation to damaging his prison cell. A sentence of 10 months imprisonment was imposed to commence on 7 June 2018 and expire on 6 April 2019. The non-parole period of seven months does not expire until 6 January 2019. On Friday, 15 June 2018, whilst my decision in this matter was still reserved, the State filed supplementary submissions informing the Court of the above. On Monday, 18 June 2018, the defendant filed supplementary submissions in response submitting that there was no longer any basis for an IDO to be imposed as the defendant will be serving a sentence until 6 January 2019 and no appeal has in fact been lodged.

144. As a result of these supplementary submissions, the Court re-convened at 4:30pm on Monday, 18 June 2018 so that senior counsel could make submissions as to whether or not an IDO should in fact be made.

145. On behalf of the State it was submitted that an IDO was required to be made prior to 20 June 2018 because even though the non-parole period of the defendant’s new term of imprisonment would not expire until 6 January 2019 (by which time the final hearing in this matter could well have been determined), there is a level of uncertainty as to whether the defendant will in fact be incarcerated until 6 January 2019. The defendant may successfully appeal his sentence or he may be granted appeal bail. It was submitted that if an IDO was not made then the defendant may be released prior to the CDO application being determined.

146. It was common ground that if an IDO was granted its operation would be suspended until the defendant’s “lawful custody” has expired: s 42(2) of the THRO Act. But it was the State’s position that, if an IDO was not granted before 20 June 2018, a new IDO could not be made unless a fresh CDO application is brought. This is because s 41(a) of the THRO Act provides that before an IDO can be made it must appear to the Court that the “offender's current custody (if any) will expire before the proceedings are determined.” “Current custody is defined in s 33 of the THRO Act as follows:

“In this Part:

"current custody" , in relation to a detained offender in respect of whom an application for an order is made under this Part, means the custody to which the offender is subject at the time of the application.

…”

147. Thus, it was submitted, the defendants “current custody” would expire on 20 June 2018. Consequently, if any application were made for an IDO after 20 June 2018, the Court would have no jurisdiction to make an IDO as the defendant’s “current custody” would have expired. If a fresh application for a CDO had to be brought everything already done in this matter would need to be re-done.

148. Mr Johnston ultimately agreed with Mr Agius’ interpretation of the THRO Act. He accepted that he had made a similar argument when he appeared in State of New South Wales v Haouchar [2015] NSWSC 798 (see at [65]). He submitted, however, that an IDO should not be made on the basis that it is not necessary in circumstances where the defendant will serve a non-parole period until 6 January 2019, that no appeal has been lodged and that, even if one were lodged, it would take some time before it was heard and resolved. All of this would provide sufficient time for the CDO application to be finally determined. The concern was raised that an IDO puts “a 28-day tail on anything that might happen downstream.” It was again submitted that an ISO is more appropriate in the circumstances in any event.

149. On the basis of the joint position of the parties that the Court would have no jurisdiction to make an IDO if it was not made the following day, and being otherwise satisfied under s 41(b) that the matters in the supporting information would, if proved, grant the making of an ESO or an IDO, I made the order for an IDO on 19 June 2018. That is, accepting the joint submission of senior counsel that the defendant’s “current custody” (his sentence expiring on 20 June 2018) would expire before the proceedings are determined I was otherwise satisfied that an IDO should be ordered. That order is suspended by the operation of s 42(2) of the THRO Act whilst the defendant is otherwise in lawful custody.

150. At the time of making the IDO I accepted the joint construction of senior counsel as to the meaning of “current custody” for the purpose of s 41(a). It is an available construction. Despite this, I am not persuaded that the question is free from doubt. The definition of “current custody” in s 33 of the THRO Act refers to “custody to which the offender is subject at the time of the application” (emphasis added). The parties agreed that the words “at the time of the application” mean “at the time of the application being made” but the words could also mean “at the time of the application being before the court.” That is, the CDO application is ongoing from the time it is commenced until it is determined. This latter construction would allow the Court to make an IDO at any time between the commencement and conclusion of the CDO application provided the defendant’s custody was expected to expire prior to the CDO application being determined. This is consistent with the purpose of IDO’s, being to ensure that an offender is not released from custody before a CDO can be finally determined in circumstances where the allegations against the defendant, if proved, would demonstrate an unacceptable risk of a serious terrorism offence being carried out.

151. Senior counsel referred me to the decision of Wilson J in State of New South Wales v Haouchar [2015] NSWSC 798 on this issue. Part of that decision concerned an application for an IDO under now repealed s 18B of the CHRO Act. Section 18B(a) provided an analogous requirement to s 41(a) of the THRO Act, that being, that it appears to the Court “that the offenders current custody (if any) will expire before the proceedings are determined”. However, the definition of current custody in the CHRO Act as contained in s 13B(2) is custody “when the application for a continuing detention order is made” (emphasis added). That definition differs to the definition of “current custody” under the THRO Act which, as discussed above, is “custody to which the offender is subject at the time of the application.” On that basis, Haouchar does not assist in the construction of “current custody” in the THRO Act.

152. In any event, on 19 June 2018 I accepted the interpretation of s 41(1)(a) of the THRO Act advanced by the parties’ and was satisfied that subsection was satisfied. I then proceeded to consider and make the IDO as sought. As stated above, that order is presently suspended.

153. Turning to my reasons for making the IDO I have already provided my reasons for being satisfied that the material would, if proved justify the making of a CDO or an ESO for the purposes of s 38(5) of the THRO Act. It follows that I was also satisfied of this same test for the purposes of s 41(b) of the Act the Court.

154. I was further satisfied that the appropriate interim order was an IDO rather than an ISO having regard to the statutory test in s 34(1)(d) and s 39(2) as well as the factors in s 39(3) of the THRO Act. I have set out the relevant material above under the relevant headings and I have had regard to all of those matters as part of the evaluative exercise. In particular, I had regard to the fact that there was little in the material before me to suggest that the defendant would comply with the terms of any ISO. His unwillingness or inability to comply with supervision orders in the past is of concern in this regard. Although Mr Johnston submitted on the defendant’s behalf that he has never been placed on conditions in the past as strict as those that would form the terms under an ISO, the fact remains that the defendant has shown a persistent unwillingness to comply with supervision in the past. There was little if anything in the material to suggest that he would comply with the terms of an ISO.

155. I accepted that, by the time this matter comes for final hearing, that situation may have changed. Mr Johnston submitted that if a mental health plan was in place and the applicant was medication-compliant and ceased using illicit drugs, then the Court may be satisfied at the final hearing that an ESO would be sufficient. That may well be the case but at this preliminary hearing there was no material put before the Court to suggest that the risk to the community could be met by attempts to supervise the defendant rather than to detain him.

156. The defendant’s provisional diagnosis of schizophrenia, history of illicit substance abuse, recent drug induced psychosis and non-compliance with medication were all significant factors going to the question of whether the defendant would comply with an ISO. In an application for a CDO, it is a mandatory consideration to consider the likelihood that the offender will comply with the obligations of such an order: s 39(3)(h) of the THRO Act. The defendant’s violent offending history, poor custodial behaviour and recent threats are also relevant to the relevant test.

157. As for the question of whether consideration of the appropriate order was a one stage or two stage test. At the time that I made these interim orders I followed the approach I took in State of NSW v Jones. That is, I was first satisfied, at this preliminary stage of the proceedings, that the defendant posed an unacceptable risk of committing a serious terrorism offence if not detained (s 34(1)(d)). I then considered whether an ISO or an IDO should be imposed by having regard to the factors in s 39(3). In addition, I had regard to s 39(2) of the Act which provides that the safety of the community must be the paramount consideration of the Court in considering whether a CDO or an ESO should be imposed. I was satisfied that an IDO was the appropriate order. It seems to me that if, consistent with the approach I have subsequently taken in State of NSW v Barrie I had instead considered s 34(1)(d) and s 39(2) and (3) at the same time the result would inevitably have been the same.

158. For these reasons I was satisfied that not only was s 41(1) of the Act satisfied but also that the appropriate interim order was an IDO rather than an ISO.

orders

159. In consideration of the above, I make the following orders:

1. An order pursuant to s. 38(5) of the Terrorism (High Risk Offenders) Act 2017:

1. appointing two qualified psychiatrists to conduct separate psychiatric examinations 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. directing the defendant to attend those examinations.

2. An order pursuant to ss. 41 and 42(1) of the Act, that the defendant be subject to an interim detention order from 20 June 2018 for a period of 28 days.

**********

Amendments

[14] second sentence – “be” deleted after “either”

[36] second sentence – “two” inserted before “step”

[37] first sentence – “consistent” changed to “consistently”

[47] final sentence – “on” inserted after “him”

[84] first sentence – “that” changed to “the” before “court monitor”

[85] second sentence – “with the charges” deleted after “conduct”

[88] final sentence – “had” changed to “said”

[115] final sentence – “hereby” changed to “he obey” – “prohibitive drugs obtain” changed to “prohibited drugs obtained”

[119] final sentence – “consists of” changed to “includes”

[150] fifth sentence – closing quotation mark inserted after first “application” – “is” changed to “being”

[154] second sentence – “had” inserted before “regard”

Amendments

22 October 2018 - [143] last sentence - "2018" changed to "2019"

[145] first sentence - "2018" changed to "2019"

22 October 2018 - [154] five sentence - "Johnson" changed to "Johnston"

Cover sheet - "Johnson" changed to "Johnston"

Decision last updated: 22 October 2018