State of New South Wales v Elmir (Final)

[2019] NSWSC 1867

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Elmir (Final) [2019] NSWSC 1867
Hearing dates:	9 September 2019; 17 and 23 September 2019 (written submissions)
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The plaintiff shall bring in short minutes of order reflecting this judgment by 12noon on Friday, 20 December 2019.
Catchwords:	CIVIL – final hearing – application for extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – mandatory considerations – discretionary considerations – the time an extended supervision order might operate – whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order – the timing of the evaluative exercise called for by s 20(d) of the Terrorism (High Risk Offenders) Act – the application of s 31 of the Terrorism (High Risk Offenders) Act in circumstances such as those relating to the defendant – the appropriateness of adjourning the matter, such that it could be determined at a date closer to the expiry of the offender’s sentence for the foreign incursion offence – duration – orders
Legislation Cited:	Community Protection Legislation Amendment Bill 2018 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code Act 1995 (Cth) Criminal Code (Terrorist Organisation – Islamic State) Regulations 2017 (Cth) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	R v EB [2018] NSWSC 201 R v Elmir (No 3) [2019] NSWSC 1040 R v Lodhi [2006] NSWSC 584 State of New South Wales v Dunn [2019] NSWSC 426 State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 State of New South Wales v Fisk [2009] NSWSC 778 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Conway [2011] NSWSC 925 Tillman v Attorney General for the State of New South Wales (2007) 178 A Crim R 133; [2007] NSWCA 327
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Amin Elmir (Defendant)
Representation:	Counsel: A Casselden SC with A Mykkeltvedt (Plaintiff) P David (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Executive Legal (Defendant)
File Number(s):	2019/54759

JUDGMENT

1. HIS HONOUR: By a summons filed on 19 February 2019, the State of NSW (“the plaintiff”) applied for orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) in relation to Amin Elmir (“the defendant”).

2. By way of final relief, the plaintiff sought the following orders:

1. pursuant to ss 20, 25(1)(a) and 26(6) of the THRO Act, that the defendant be subject to an extended supervision order for a period of 3 years from the date of the order; and

2. pursuant to s 29(1) of the THRO Act, directing that the defendant comply with the conditions set out in the schedule to the summons for the period of the extended supervision order.

(Those prayers for relief will be collectively referred to as “the applications”).

THE DEFENDANT’S CURRENT CUSTODIAL STATUS

3. On 22 December 2016, the defendant was charged with an offence of prepare to engage in commission of offence against s 119.1 of the Criminal Code Act 1995 (Cth) (“Criminal Code”) (enter foreign government with intent to engage in hostile activity), contrary to s 119.4(1) of the Criminal Code (“the foreign incursion offence”). The defendant was remanded into custody.

The Index Offence

4. On 20 February 2018, the defendant was being escorted by Corrective Services Officers to use the telephone. After finishing his call, the defendant walked towards one of the officers and punched him in the face. A struggle with Corrective Services Officers ensued, during which the defendant continued to throw punches, striking another officer in the head and upper body.

5. The first of the injured officers sustained a bruised left eye and cheek as well as a fractured finger. The second injured officer sustained heavy bruising and scratches around his right eye and cheek.

6. Following pleas of guilty, the defendant was convicted of two counts of assault law enforcement officer (other than a police officer) in the execution of the officer’s duty and inflict actual bodily harm, contrary to s 60A(2) of the Crimes Act 1900 (NSW).

7. The defendant was sentenced to a term of imprisonment of 8 months in relation to one of the offences and 6 months in relation to the other. The sentences were ordered to be served concurrently, expiring on 17 January 2019 and 17 March 2019, respectively.

The Foreign Incursion Offence

8. On 4 February 2019 (what was to be the first day of the trial), the defendant pleaded guilty to the foreign incursion offence, namely, that between about 23 April 2016 and about 19 June 2016 he committed acts in the Republic of Turkey in preparation for incursion into a foreign country, the Syrian Arab Republic, for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code.

9. The sentencing hearing proceeded on 28 June 2019 before Davies J. On 16 August 2019, his Honour sentenced the defendant to 5 years and 5 months’ imprisonment, expiring on 21 September 2022, with a non-parole period of 4 years and 1 month, expiring on 21 May 2021: R v Elmir (No 3) [2019] NSWSC 1040 (“the sentencing judgment”) at [1].

THE POSITION OF THE PARTIES

10. The non-parole period for the foreign incursion offence excited some issues at the hearing of the application. This resulted in the production of supplementary submissions as to three additional issues:

1. the timing of the evaluative exercise called for by s 20(d) of the THRO Act;

2. the application of s 31 of the THRO Act in circumstances such as those relating to the defendant; and

3. the appropriateness of adjourning the matter, such that it could be determined at a date closer to the expiry of the offender’s sentence for the foreign incursion offence.

(Collectively, “the additional issues”).

11. Before turning to the additional issues, the combination of the earlier filed submissions of the parties and the supplementary submissions of the parties permits the following overview of the position of the plaintiff and defendant.

12. Broadly speaking, as was stated at the outset of the parties’ oral submissions, the contest concerned whether the Court may be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an extended supervision order (being an order that would operate when the current custody expires); whether the Court would exercise its discretion to make an extended supervision order; and what should be the duration of that order. There was no dispute, if the Court determined to make an extended supervision order, as to the Court imposing the conditions set out in the Schedule to the summons (which included additional conditions pursuant to s 29(1), as well as the prescribed conditions pursuant to s 29(1A) of the THRO Act).

13. In summary, the plaintiff contended:

1. The appropriate order is that an extended supervision order be imposed for a period of three years from the date it commences. If the Court is not satisfied that the current expert evidence sufficiently addresses the risk the offender would pose towards the latter half of such an order, then the appropriate order is that an extended supervision order be imposed for a period of 18 months. An extended supervision order of that duration, together with the period the offender is likely to spend in custody (absent a successful appeal) would correspond approximately to a period of three years. That is, the period which is unequivocally the subject of expert evidence as to the risk posed by the defendant.

2. If the proceedings were dismissed, the State would – as acknowledged by the defendant in oral submissions – be “shut out” from seeking an extended supervision order on account of the need for a nexus between the application and a “NSW indictable offence”: ss 4(1), 7(b) and 20(a) of the THRO Act.

3. Such an outcome would be avoided if the Court (alternatively) adjourned the proceedings and granted liberty to apply. Nevertheless, the plaintiff submitted that the Court should not adopt such an approach, which would be attended by some very significant difficulties.

4. The risk assessment process requires the Court to inquire into events that may occur in the future. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (“Naaman”) at [29(2)], the Court of Appeal described the requirement in s 20(d) as “forward looking”:

(2) … It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur.

5. In the context of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”), the Court has observed that the prediction of risk required by the counterpart to s 20(d) is referable to the period of time in which the Court’s order can operate.

6. While not expressly stated, it appears that the above observations in Naaman were made on the basis of the requirement that the Court be satisfied that the offender poses the relevant risk “if not kept under supervision”. Section 20(d) of the THRO Act similarly requires reference to be made to the relevant risk “if not kept under supervision under the order”.

7. Section 20(d) implicitly established that the risk assessment task is to proceed by reference to the period during which the defendant could be kept under supervision under the order. That period is a period of three years from the day on which the order commences: s 26(6) of the THRO Act.

8. In the present case, there is likely to be some delay before the commencement of any order, on account of the defendant’s sentence for the foreign incursion offence. At present (though subject to any appeal), the defendant’s non-parole period will expire on 21 May 2021 (it was noted that date was approximately 19 months from the date of the plaintiff’s written submissions).

9. The question of how the defendant’s ongoing imprisonment bears upon the task the Court is required to undertake in s 20(d) therefore arises. That task requires a consideration of the risk posed by an offender “if not kept under supervision under the order”. Whether or not an extended supervision order is made, the offender will (again subject to any appeal) be in custody for a further period; his risk of committing a serious terrorism offence during that period will presumably be lower than if he were not so confined.

10. Despite this, it would be appropriate for the Court to conclude that the offender presents an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an extended supervision order.

11. The statutory basis to make an extended supervision order in the current circumstance is clear. The THRO Act contemplates the making of extended supervision orders in cases where a person will remain in custody after the order is made:

1. Section 26(1) provides that an extended supervision order will commence either when it is made, or when the eligible offender’s current custody or supervision expires, whichever is the later.

2. The Court may order that a continuing detention order be followed by an extended supervision order, without the need for a further hearing to be held at or shortly prior to the conclusion of the continuing detention order.

12. Section 31 of the THRO Act provides for the variation or revocation of an extended supervision order.

14. In summary, the position of the defendant was as follows:

1. The defendant correctly conceded the threshold requirements in s 20(a)-(c) of the THRO Act has been met.

2. The defendant accepted the submission advanced by the plaintiff as set out in [13(4)]-[13(9)] above.

3. The Court could not be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a “serious terrorism offence”, if not kept under supervision under an extended supervision order during what will be the relevant period of the extended supervision order, given the delayed commencement of the extended supervision order period.

4. The defendant conceded that the evidence would allow the Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk for the purpose of s 20(d) of the THRO Act. It may be noted, in that respect, that the defendant’s concession relates to present day circumstances which could change and hence it was contended, by the defendant, the Court could not be so satisfied for the period in which the extended supervision order would operate.

5. It was not in issue that that the expert and other evidence supported the defendant is currently an unacceptable risk of committing a serious terrorism offence if not kept under supervision under and order. However, prior to the extended supervision order coming into effect, those matters, pursuant to s 25(3) of the THRO Act, which have been considered by the experts and to which the Court must have regard when considering whether to make an extended supervision order, may change and current risks may be mitigated before the extended supervision order comes into effect.

6. By reason of s 26 of the THRO Act, the period when the defendant is required to comply with an extended supervision order will not come into effect until the expiration of the defendant’s current term of imprisonment and may potentially cover a period extending to just over 6 years in the future.

7. The defendant did not agree with the plaintiff’s supplementary submissions to the effect that the THRO Act contemplated the making of extended supervision orders in circumstances which exist in the defendant’s case. To the contrary, the defendant submitted the extended supervision order provisions under the THRO Act do not contemplate the extended supervision order extend for the period of an extended supervision order as sought by the plaintiff. The effect of the relief sought by the plaintiff is that the extended supervision order covers a period which may not potentially begin until 22 September 2022, and which may not end until 22 September 2025, up to 6 years into the future.

8. It is submitted that the effect of the length of the order sought by the plaintiff in this case would be crushing, oppressive and arguably a disincentive to rehabilitation. Such disincentive is contrary to the object of the THRO Act to encourage offenders to undertake rehabilitation, which rehabilitation it was submitted would better achieve the primary object of the THRO Act which is to ensure the safety and protection of the community.

9. Furthermore, it is submitted that the THRO Act does not contemplate the assessment of the risk be assessed so far into the future, but rather contemplated that assessments be proximate to the proposed extended supervision order period.

10. The THRO Act requires an extended supervision order application may not be made until the last 12 months of an eligible offender’s “current custody or supervision”: s 23(2) of the THRO Act. This is a time more proximate to the extended supervision order period.

11. The THRO Act does not contemplate or provide for what is in this case, an atypical and somewhat artificial exercise, brought about by an application which sought to extend the reach of NSW legislation to bring the defendant within the Act for a foreign incursion offence which was not itself an eligible offence under the THRO Act.

12. Given s 23(2), it followed that the THRO Act does not contemplate risk assessments be undertaken until sometime proximate to the anticipated release of the offender and the extended supervision order period starting.

13. Section 31 of THRO provided for the variation and revocation of orders usually in circumstances where the Court had made an extended supervision order after previously satisfying itself, based upon a sufficiency of evidence, to the high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order. Section 31 did not provide a remedy or answer to deficient applications such as in this case, where there is insufficient evidence for the Court to be satisfied at the outset for the extended supervision order to be made.

14. Given the lack of a risk assessment in this case which covers the proposed extended supervision order period, combined with the uncertainties associated with the tools for predicting risk in terrorism cases, an extended supervision order should not be made in this case.

15. If the Court is satisfied that the defendant does pose an unacceptable risk and that an extended supervision order should be made, the extended supervision order should not be made for a period of 3 years, as sought by the plaintiff, but for a shorter period. Any order should not exceed 12 months. Such a course would not prejudice the plaintiff, as pursuant to s 23, the plaintiff can make a further application prior to the expiry of that shorter extended supervision order based upon an assessment more proximate to the extended supervision order coming into effect. A shorter extended supervision order would ensure the safety of the community, and also ensure the defendant is not subjected to an extended supervision order in circumstances where he is no longer a risk.

16. The defendant did not argue against the plaintiff’s supplementary submissions on the appropriateness of an adjournment.

EVIDENCE ON THE APPLICATIONS

15. The plaintiff relied on the following evidence in support of the application:

1. affidavits of Vincenzo Camporeale affirmed 18 February 2019 (together with exhibit VC-1), 22 February 2019 (together with exhibit VC-2) and 6 March 2019;

2. affidavit of Claudia Pendlebury affirmed 23 August 2019 (together with exhibit CP-1);

3. Risk Assessment Report of Ms Naomi Prince, a registered psychologist, dated 7 January 2019 (“the RAR”);

4. expert report of Dr Anna Farrar, forensic psychiatrist, dated 19 August 2019;

5. expert report of Dr Susan Pulman, forensic psychologist, dated 19 August 2019;

6. affidavit of Plain Clothes Senior Constable Amber Selvage affirmed on 13 February 2019; and

7. affidavit of Robert Bermingham affirmed on 27 November 2018.

16. Cross-examination was not required of the deponents of the affidavits or the experts or the author of the RAR.

THE STATUTORY REGIME

17. The primary object of the THRO Act is to “provide for the extended supervision and continuing detention of certain defendants posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community” (s 3 of the THRO Act).

18. In making a determination the Court is required to consider the matters set out in s 25(3) of the THRO Act. It is necessary to have regard to the preconditions for the making of any such order under s 20 of that Act.

STATUTORY PRECONDITIONS (s 20(a)-(c))

19. As mentioned, there was no contest that the statutory preconditions) to the making of an extended supervision order are set out in s 20 of the THRO Act. By those preconditions the plaintiff is required to satisfy the Court of the following:

1. That the defendant is an “eligible offender” (the preamble to s 20).

2. That the defendant is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed) while serving a sentence of imprisonment for a NSW indictable offence (s 20(a)).

3. That the extended supervision order application is made in accordance with Pt 2 of the THRO Act (s 20(b)). Those requirements are set out in ss 23 and 24.

1. Pursuant to s 20(c), that the defendant is:

1. a convicted NSW terrorist offender;

2. a convicted NSW underlying terrorism offender; or

3. a convicted NSW terrorism activity offender.

5. That the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an extended supervision order (s 20(d)).

The defendant is an eligible offender (s 20)

20. Section 7 of the THRO Act defines an “eligible offender” as one who is:

1. 18 years of age or older, and

2. serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence.

21. A “NSW indictable offence” is defined in s 4(1) to be an offence against the law of NSW for which proceedings may be taken on indictment.

22. The defendant is an eligible offender because:

1. He is 29 years of age.

2. The offences for which he was imprisoned at the time of the application under the THRO Act, being assault law enforcement officer (other than a police officer) in the execution of the officer’s duty and inflict actual bodily harm, contrary to s 60A(2) of the Crimes Act, are offences against the law of NSW and may be dealt with on indictment.

3. An interim supervision order was made by Campbell J on 12 March 2019. The operation of that order is currently suspended pursuant to s 28(6) of the THRO Act. It continues to apply to the defendant.

Custody or Supervision (s 20(a))

23. Pursuant to s 20(a), a person will be “in custody or under supervision” while serving a sentence of imprisonment for a NSW indictable offence or while under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

24. Section 6 provides that a person is “serving a sentence of imprisonment” when the person:

1. is serving a sentence of imprisonment by way of full-time detention, or

2. is on parole in respect of the offence.

25. As noted above, the defendant’s sentence for the index offence expired on 17 March 2019. The requirements of s 20(a) were, therefore, satisfied because at the time the application was filed, the defendant was “in custody or under supervision” for the purposes of s 20(a).

Application in accordance with Pt 2 of the THRO Act (s 20(b))

26. The procedural requirements in Pt 2 of the THRO Act were complied with because:

1. The application was in respect of an eligible offender who was in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence (s 23(1)(a)).

2. The defendant was in the last twelve months of his sentence for the index offences (s 23(2)).

3. The application is supported by documentation addressing the matters referred to in s 23(3), including a risk assessment report by Ms Prince, a registered psychologist, addressing the likelihood of the defendant committing a serious terrorism offence.

A convicted NSW terrorism activity offender (s 20(c))

27. Section 20(c) provides as follows:

20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk

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

…

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

(i) a convicted NSW terrorist offender,

(ii) a convicted NSW underlying terrorism offender,

(iii) a convicted NSW terrorism activity offender, ...

28. The defendant is a “convicted NSW terrorism activity offender” as that term is defined in s 10 of the THRO Act: s 20(c)(iii).

29. Section 10(1) is in the following terms:

10 Convicted NSW terrorism activity offender

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

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

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

(c) the offender:

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

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

30. The defendant was serving a sentence of imprisonment for a NSW indictable offence. The remaining question, on the plaintiff’s case, is whether the defendant falls within the provisions of s 10(1)(c)(i) or (ii). Section 10(1A) provides:

10 Convicted NSW terrorism activity offender

…

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

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

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

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

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

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

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

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

31. By s 4 of the THRO Act, the term “terrorist act”, as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code. There, the term is defined as follows (see s 100.1):

"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.

32. The subsections (2) and (3) referred to in the above definition read as follows:

(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.

33. In R v Lodhi [2006] NSWSC 584, Whealy J observed that the definition of “terrorist act” in the Criminal Code “postulates an action or threat of action of the widest possible kind” (at [75]).

34. The term “violent extremism” is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines “extremism” as “[t]he holding of extreme political or religious views; fanaticism”. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views. It was submitted by the plaintiff, correctly in my view, that the inclusion of the term “violent extremism” was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, an act not directed at coercing the government or intimidating a section of the public.

35. For the purposes of s 10 of the THRO Act, the term “terrorist organisation” has the same meaning as it takes in Div 102 of Pt 5.3 of the Criminal Code. Section 102.1 of the Criminal Code defines “terrorist organisation” as follows:

“terrorist organisation” means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

36. Islamic State is specified as a terrorist organisation by the Criminal Code (Terrorist Organisation – Islamic State) Regulations 2017 (Cth).

37. Section 11 of the THRO Act specifically lists a series of matters the Court may take into account in determining whether the defendant is a convicted NSW terrorism activity defendant.

38. The issue then emerging is whether the defendant is a person “advocating support for any terrorist act or violent extremism” s 10(1)(c)(i) of the THRO Act.

39. The definition of “advocating support” in s 10(1A), set out above, makes clear that the term is intended to capture a broad range of conduct. On that basis, the defendant has made statement/s and/or carried out activities advocating support for a terrorist act or violent extremism.

40. In my view, the features of the foreign incursion offence amount to advocating support for engaging in terrorist acts or violent extremism. The agreed facts on which the defendant was sentenced for the foreign incursion offence summarised the conduct constituting the offending. Those facts were further summarised in the judgment of Davies J on sentence.

41. On 7 April 2016, the defendant left Sydney with his mother and father, aboard a flight bound for Doha, Qatar. The defendant’s mother and father returned to Australia on 23 April 2018 on a flight inbound from Doha. The defendant did not return to Australia with his parents. Rather, he left them in Dubai without informing them of his travel plans.

42. On about 23 or 24 April 2016, the defendant arrived in Istanbul, Turkey. The defendant then remained in Turkey for approximately two months, during which time he conducted preparatory acts to cross the Turkish border into Syria to join and fight for Islamic State and to promote their agenda. The defendant took steps to facilitate his travel into Syria such as staying in a “makar” (an Islamic State safe house) somewhere in Turkey, obtaining military equipment and contacting others to help him cross the border.

43. One of the people the defendant sought assistance from was “EB”, a 17 year old Australian who was subsequently convicted, following a plea of guilty, of an offence of give/receive services to promote a s 119.1 offence (namely, an offence by the defendant of entering Syria with the intention of engaging in a hostile activity), contrary to s 119.4(5) of the Criminal Code.

44. While in Turkey, the defendant exchanged a series of messages with EB. The plaintiff referred to the following passages of the record of a conversation between EB and the defendant on 17 June 2016:

EB: whats new

Defendant: Wallah just waiting so far no one here has any religion

EB: lmao Alhamdulilah [Thanks/Praise be to God] … Alhamdulillah [Thanks/Praise be to God] how long do us have to wait to get in

Defendant: Soon in sha Allah [if God wills it]

EB: lol i told some boys here amin still in turkey everyone shocked

Defendant: Lol why

EB: cause been so long

Defendant: Bro alhumdulilah (Thanks/Praise be to God) some people been here 6 months Theres pregnant woman and all

EB: Alhamdulillah (Thanks/Praise be to God) have u met anyone else whos waiting any westerners

Defendant: Yeah a couple of westerners the rest are all arabs

EB: Saudis ayy

Defendant: Suadis [sic] moroccons [sic] and Tunisians

EB: hahahahahaa Alhamdulillah [Thanks/Praise be to God] in shaa Allah [if god wills it] youll arrive safely next thing we know ur on Al hayatmedis [Al-Hayat Media – a media arm of Islamic State] media

Defendant: In sha Allah [if god wills it]

45. On 19 June 2016, EB and the defendant had the following exchange:

Defendant: Bro they threw me out on the street with all military equipment they even tried to rob over takfeer al athir [declaring as an unbeliever someone who themselves excuse unbelievers – often due to the unbelievers perceived ignorance]

EB: who akhi [my brother]

Defendant: The amir [commander] Im in the middle of the street with bags and I cant get a hotel

EB: which amir [commander]   r u in turkey go get a cheap sketchy hotel for now jump in a cab

Defendant: My passport is revoked And im carrying all military studf [sic]

EB: so what u gna do akhi [my brother]

Defendant: I got to [sic] options im gonna knock the amir or go embassy

EB: what u gna do at embassy ??

Defendant: Come back

Juvenile: Akhi [my brother]

Defendant: Bro the amird here are all kuffar [unbelievers]

EB: dont come back

Defendant: They want to rob me because im not athir [one who excuses unbelievers based on their perceived ignorance]

EB: Akhi [my brother] do what ever but don’t come back wallahi [I swear to God] u will bite ur nails for d rest of ur life.

46. The defendant then asked EB if he could speak to someone connected with Islamic State regarding his situation. The exchange then continued:

EB: ur going dawlah [Islamic State] for Allahs sake

Defendant: Exactly

EB: a lot of these amir (commander) are spinnas

Defendant: Im going for allahs sake im not praying behind some murtad [Muslim who is considered to have left the faith] for Allahs sake I almost killed the amir (commander) he shit it I took my money of him by force

EB: Try and find contacts to cross the border Do u know any Australians bros on d other side

Defendant: I can cross the border in sahawat [awakening/dawn] but whats the point The amirs [commander] when I get there are gonna ask me to commit kuffar [likely means kufr – unbelief. Kuffar means unbelievers] … I want to stay herr Until I verify dawlah aqeedah [Islamic State creed or articles of faith] Even if I buy a Syrian passport 350 I can stay here   … And they all give you up and no one in dawlah [Islamic State] is helping    What am i gonna do walk in and ask them do you need passport With a bag full of military equipment The only thing i can do is try knock the amir [the commander] and take the makar [base/safe house] …

EB: or yous can just sort [sic] it out and bite your tongue until u get to the other side

Defendant: Sort what out he wants me to say words of kufr (unbelief)

EB: akhi just don’t say nothing literally just use him   to cross be 2 face bro akhi [my brother] this is hijrah [migration to Islamic State territory]

Defendant: How conditions they gave me is to say one of them is mulsim [sic]

EB: its nothing small

Defendant: Im gonna kill him I know what he walks and when he leaves …

EB: fear Allah and leave it …

Defendant: Why hes murtad [Muslim who is considered to have left the faith] dog Hes blood is halal [permissible]   …

EB: if u wna do that then go do a op on Turkish military instead

Defendant: With what

EB: what ever

Defendant: Halet ill grab a rock

EB: lol

Defendant: lol

47. On 20 June 2016, shortly after the defendant was ejected from the “makar”, the defendant’s father flew from Sydney to Istanbul, to bring the defendant back to Australia. On about 21 or 22 June 2016, the defendant was stopped by Turkish National Police and placed in immigration detention. On 30 June 2016, after the defendant had been issued with an emergency passport, he was deported from Turkey back to Australia.

48. The act of travelling to Turkey and seeking to enter Syria to make contact with persons connected to Islamic State constituted an activity “advocating support for any terrorist act or violent extremism”; the act of seeking to participate in violent extremism (i.e. making preparations to engage in hostilities on behalf of Islamic State) necessarily constitutes “advocating support” for such activities. The conclusion is fortified by the following further statements and activities of the defendant.

49. A review of activity on a Facebook page named “Muhamad Dawah”, used by the defendant, included a number of posts and likes suggesting that the defendant held extremist views, or supported those who do, some of which are listed below:

1. he liked the page of Al Hayat Media Centre, a media arm of Islamic State;

2. he liked the site of Shaykh Muhammad Abudl Jabbar, a British Salafist and online preacher;

3. he liked a video lecture by Ahmad Musa Jibril, a Palestinian-American Salafist scholar whose speeches are popular amongst jihadis and foreign fighters; and

4. the defendant also liked the page “Islamqa”, an online Salafist source of religious guidance which propagates a conservative, fundamentalist interpretation of Islam and a sense of Islamic “victimhood” at the hands of external oppressors.

50. The criteria in s 10(1)(c)(i) of the THRO Act are thereby met in this matter. It is strictly unnecessary to refer to the provisions of s 10(1)(c)(ii). However, I will briefly refer to the plaintiff’s alternative submissions, in that respect, which are correct.

51. Section 10(1A)(b), set out above, defines “association or other affiliation” for the purpose of the THRO Act in very broad terms.

52. Prior to the insertion of that subsection, N Adams J in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 noted that the phrase “associated or otherwise affiliated with” is intended to capture a wide range of relationships (at [30]):

[30] 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 … 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.

53. The material filed in these proceedings included evidence regarding the defendant’s association with a number of persons who appear to hold extremist views. In particular, it was correctly submitted that the defendant’s association with EB was sufficient to satisfy s 10(1)(c)(ii) of the THRO Act.

54. By sending EB messages whilst in Turkey, the defendant was undoubtedly “communicating” with EB for the purposes of s 10(1A)(b)(i) of the THRO Act.

55. As noted above, EB was convicted, following a plea of guilty, of an offence of give/receive services to promote a s 119.1 offence (namely, an offence by the defendant of entering Syria with the intention of engaging in a hostile activity), contrary to s 119.4(5) of the Criminal Code. The facts of that offending are summarised in R v EB [2018] NSWSC 201.

56. During the course of the investigation of EB’s conduct, police located a range of material on his telephone including:

1. photographs of EB posing with his index finger raised in a manner consistent with an expression of support for IS;

2. a photograph of EB standing in front of a street sign reading “Isis St”;

3. 264 images of material linked to Islamic State or Islamic extremism, including photographs of beheadings, depictions of the Islamic State Flag, images of Osama Bin-Laden and images of Australian citizens suspected of having been killed after travelling to conflict zones; and

1. multi-media files appearing to be Islamic State propaganda: R v EB at [13].

57. Police also intercepted some calls and messages made by EB using a different phone. Those messages included:

1. a message containing an image of two bloodied and deceased children, together with the comment “if dying so these children can live a happy life is terrorism may I die the biggest terrorist”; and

2. a message stating “Allah knows my intention of wanting to die a Shaheed [Islamic martyr] … so in sha Allah I will”: R v EB at [15].

58. In my view, EB was a person that “is or was advocating support for any terrorist act or violent extremism”. The past association between the defendant and EB satisfies s 10(1)(c)(ii) of the THRO Act.

MANDATORY CONSIDERATIONS

59. These matters are relevant to the consideration of unacceptable risk.

Defendant’s criminal history

60. Apart from the foreign incursion offence, there are no entries relating to violent extremist conduct or terrorist acts in the defendant’s criminal history.

61. However, the following additional considerations are of note.

62. During a meeting with corrections personnel on 29 June 2011, the defendant stated that he committed the offence for which he was then incarcerated, being aggravated break and enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act, in part for the “thrill” associated with it, as “life was boring”.

63. The facts surrounding the foreign incursion offence make clear that the defendant holds extreme religious views, and is prepared to countenance violent conduct in support of those views. As an example, the defendant exchanged messages with EB, in which he indicated a preparedness to kill the “amir” with whom he had apparently disagreed on religious matters:

Defendant: Im gonna kill him I know what he walks and when he leaves …

Juvenile: fear Allah and leave it ...

Defendant: Why hes murtad [Muslim who is considered to have left the faith] dog. His blood is halal [permissible].

(That extract also appeared earlier in this judgment and is repeated for convenience of reference).

64. Davies J found that the defendant “had every intention of crossing into Syria until he had the falling out with the people at the IS safe house over seemingly theological issues”: sentencing judgment at [34]. Davies J then noted that the dispute between the defendant and those at the safe house “arose because the other supporters of IS at the safe house did not, as far as the defendant was concerned, hold sufficiently extreme views against Muslims who were prepared to make allowance for non-believers”: sentencing judgment at [35]. Following this dispute, Davies J found that the defendant’s “intentions were only brought to an end because he was arrested by the Turkish police and put into immigration detention”: sentencing judgment at [43].

65. Davies J also found there was “sufficient organisation in the offending” and that the 70 kilograms of military equipment referred to in the conversations “did not consist of innocuous objects like a tent or sleeping bag”: sentencing judgment at [38]. Davies J went on to observe (at [42]):

[42] … [The defendant] was, by June 2016, considerably radicalised and I conclude from the conversations he had with EB that he intended to engage in hostile activity when he entered Syria, given the military equipment that he had managed to acquire.

Expert reports tendered on sentence and conclusions of sentencing judge

66. A psychology report of Mr John Machlin and a psychiatric report from Dr Richard Furst were tendered on sentence for the foreign incursion offence.

67. In interview with Mr Machlin, the defendant stated that he developed sympathies for Islamic State in the two years following 2014, apparently primarily in response to information he was exposed to regarding the activities of the Syrian government. He used social media, chat sites and the Telegram app (an encrypted messaging application) to engage with persons in relation to Islamic State activities and the conflict in Syria.

68. Dr Furst, on the other hand, expressed a view that the primary driver of the defendant’s actions was his extreme religious beliefs:

Mr Elmir’s actions of attempting to enter Islamic State through Turkey between April and June 2016 were likely driven by the extreme religious ideologies held by Mr Elmir at the time, consistent with Islamic State ideologies, and more general concerns about the plight of other Muslims in Syria at the hands of the Al-Assad regime.

69. The defendant told both Mr Machlin and Dr Furst that he had changed his beliefs in relation to Islamic State, that he regretted his offending and renounced his previous Islamic State affiliation or ideology. Davies J was not satisfied that the defendant had, in fact, changed his views. His Honour’s conclusion in that respect was attributable to five matters (sentencing judgment at [58]-[62]):

1. He did not give evidence.

2. He had not had access to any formal program of rehabilitation or de-radicalization.

3. When asked by Dr Furst about atrocities and terrorist attacks linked to Islamic State, the defendant stated that he did not trust the Western media’s reporting of such events saying “you never get the full story”.

4. The defendant’s conversations with EB demonstrated that at least one significant reason for the fall out with those at the IS safe house was that the defendant did not consider their Islamic beliefs to be as “pure as his nor as rigorous as he considered they ought to be” (at [61]).

5. The defendant declined to stand when Davies J entered and left the court at the sentence hearing and on the date of judgment (at [62]).

70. It is also noteworthy that the defendant told Dr Furst that he “was going to get killed anyway”. Davies J observed that this “suggests that [the defendant] intended to take an active part in hostilities” (at [38]).

71. As to the foreign incursion offence, Dr Furst reported:

He appears to have distanced himself from such Islamic State ideologies since the time of his offence, expressed regrets about his actions and has accepted his guilt in relation to the offence in question before the Court. Mr Elmir said he wants to find employment when released on parole, get married and support his mother.

Rehabilitation

In my opinion, his attitude to his offending, stated change of beliefs in relation to Islamic State, and the apparent acceptance that his actions were wrong represents encouraging evidence that Mr Elmir has the capacity to renounce extremist beliefs and ideologies associated with the Islamic State over the longer-term.

I understand he has not yet had any access to a formal program of rehabilitation and/or deradicalization, such as PRISM, or any more moderate religious teaching from the visiting Imam at the HRMCC, which would probably also assist in moderating his previous extreme beliefs and reducing the risk of radicalization in the future, giving Mr Elmir reasonable prospects of being successfully rehabilitated

72. When sentencing the defendant for the foreign incursion offence, Davies J was not satisfied that the defendant had renounced his extremist views: sentencing judgment at [71]. His Honour observed, in that respect, that the defendant had not had access to any formal program of rehabilitation or deradicalization. Davies J also observed in relation to concern about the offender’s ongoing extremist ideology at [90]:

[90] … He needs a considerable amount of time to be de-radicalised, perhaps with the assistance of moderate Imams, so that he no longer presents any sort of threat to the community.

Expert reports ordered by the Court

73. Pursuant to orders made under s 24(5) of the THRO Act following the preliminary hearing of the matter, Dr Farrar and Dr Pulman provided reports to the Court.

Elements of the Reports by Subject Areas

Account of the foreign incursion offence

74. During her interview with the defendant, Dr Farrar asked the defendant to give an account of the offending. He indicated that his decision to go to the Islamic State safe house was motivated by things he saw on Facebook, regarding atrocities committed by the Syrian Government. As for how he came into contact with Islamic State, he gave the following account:

Facebook is filled…Telegram. Twitter. I was using my Facebook account. I was speaking to people on Telegram. I had met them on Facebook. They speak English. I do speak Arabic, my reading and writing not the best. I was suggested to come when I was in Dubai. From there I ended up booking a ticket from Dubai to Turkey. I never planned it. I never had it in my mind to go. It was a while I was in Dubai. I made an irrational decision. I was on holidays with my family. I had gone on a pilgrimage though Saudi Arabia. We all went together to Saudi Arabia, 2 weeks, mom, brother, sister...heaps…all of LMA (Lebanese Muslim Association). I went from Saudi Arabia to Dubai. Speaking to someone 2016 maybe on Telegram. He’s the one that told me to fly to Turkey and wait there. I just left. I messaged them later on, don’t worry. It would be a week. I was in Turkey. I was in a hotel in Turkey a month and a half. I was running out of money. I went to safe house. I was doing like terrorist stuff. I never went to Syria. I went there and it started dragging on. They don’t tell you everything. I just waited. 2 weeks. After a couple of days I didn’t want to continue. I didn’t know exactly what it was. I told them [parents] I was in Malaysia to do an operation in Malaysia after it dragged on. I didn’t know what was going on. I didn’t want to say anything. It did get physical with me and one of the leaders. They tried to rob me. I disbelieve in your core values. I didn’t want to say it. I asked my dad to get my… my passport was cancelled something…based on message while I was in the safe house. The government never told me the exact cause. I was illegal immigrant. I went from safe house and I got a hotel. I was in an ISIS safe house. I got arrested in Turkey. My phone was… My dad came. I didn’t want to stay in hotel. They asked me for passport. They arrested… detention centre 2 weeks. I brought my own passport… emergency passport.

75. He went on to say that he “got emotional” and was “[d]oing it for the sake of Allah”. He then acknowledged that he had made a mistake.

76. Similarly, the report of Dr Pulman stated that the defendant asserted that his actions were a spontaneous decision, driven by a desire to “help those people”.

Violent extremism risk assessment

77. The plaintiff provided a summary of the reports of Drs Farrar and Pulman, in this respect, which is correct and reflected below.

78. Both doctors applied the Violent Extremism Risk Assessment – Version 2 Revised (“VERA-2R”) structured assessment tool to the defendant. The VERA-2R consists of five main indicators. The experts’ key observations in respect of those indicators are summarised below.

79. Dr Farrar noted that the defendant supported an ideology that justified the use of violence under specific conditions. This observation was made by reference to the defendant’s observation: “If people are being killed they have the right to defend themselves. I didn’t know if what real or not”.

80. Dr Farrar also noted that the defendant expressed grievances relating to political, religious, social or other issues and appeared to reject some of the democratic values, norms and laws of Australian society. In the latter respect, the defendant stated: “I don’t agree with the way they make their laws and systems. Some I agree. Protect people’s health and safety. I believe in Islam”. He observed that he would prefer to live in Saudi Arabia, though when asked what he disliked about Australia, the defendant seemed to focus on laws around matters such as speeding, taxation and the like, rather than matters relating to religion.

81. Dr Pulman identified a number of the same matters in relation to these indicators. In interview with Dr Pulman, the defendant stated that other religions were “wrong” though denounced violence against them. When asked about “fundamentalist beliefs”, the defendant responded: “what is fundamentalism?”.

82. Both experts noted that the defendant had a history of accessing and communicating violent extremism materials from websites and social media. During interview with Dr Farrar, the defendant stated:

Facebook posts, Telegram. I used to post. I did post Islamic stuff. There were extreme views in the conversation. I posted a lot of things in my time. Maybe there was something extreme I can’t remember.

83. Additionally, the defendant had direct contact with persons associated with Islamic State and persons in Australia known to have extremist views.

84. In interview with Dr Farrar, the defendant denied any current thoughts of violence in response to perceived injustices. When asked if he ever considered giving his life for a higher cause, the defendant stated: “it was never 100% that I was going to die. It could have happened. It was a very rash decision”.

85. The defendant disclosed to Dr Farrar he was influenced to travel to Turkey by an Islamic State group member. Of this, Dr Farrar observed that “he had previously been susceptible to influence control by a leader or a person who advocated acts of violent extremism”.

86. Dr Farrar scored the defendant highly on indicators relating to his organisational skills and access to sources of help on account of travelling to Turkey and access to people with resources necessary for planning and executing extremist violent acts.

87. In the domain of history, action and capacity, Dr Pulman noted the defendant’s history of offences involving the possession of weapons; his interest in military training; and his demonstrated willingness to travel with an intention to engage in hostile activities, together with his associations with extremist actors, as indicators of concern.

88. The defendant is said to have told Dr Farrar that people have the right to defend themselves for their religions and “if Muslims sticking up for themselves I’m not saying what they are doing is wrong”.

89. Dr Farrar observed that the defendant was strongly motivated to participate in extremist violent acts by “solidarity, membership or group bonding”. The defendant observed, “I think what I believe in is the best. I think Islam is the best. I don’t think anyone thinks they are following something inferior”.

90. In interview with Dr Pulman, the defendant “emphasised that a motivation for his decision to travel to Turkey was to enter Syria with the intention of assisting the Syrian peoples who were being slaughtered by the Assad regime and that ISIS had the goal of freeing the Syrian people and returning to true Islam”.

91. In addition to religious motivations, Dr Farrar concluded that the defendant was “partly motivated by excitement and adventure to participate in extremist violent acts”.

92. In terms of protective factors, Dr Farrar stated that the defendant had demonstrated some moderation of his views and was willing to participate in a de-radicalisation program. He also had significant family support.

93. Dr Pulman also identified the defendant’s family as a “strong source of support” and noted that he had demonstrated a capacity to secure casual and full-time employment, though noted that he has a history of instability in employment.

94. Overall, as to concerns of his risk of extremist violence, both Dr Pulman and Dr Farrar noted that the application of the VERA-2R tool suggested the defendant posed a moderate/high risk of committing a serious terrorism offence.

95. Dr Farrar also observed that the presentation and supporting documentation suggested that the defendant may have Antisocial Personality Disorder. Dr Pulman similarly noted that the defendant’s history “suggests antisocial tendencies” and that “[h]is characteristics suggest a lack of empathy towards victims of his offences”.

96. As to the implications of the defendant’s placement in the community for his risk of committing a serious terrorism offence, Dr Farrar observed:

Mr Elmir’s risk of committing a serious terrorism offence might be increased in the community due to increased personal contact with violent extremists and increased access to violent extremism materials on the internet or social media. In addition, if Mr Elmir experiences problems with his work, legal situation, violence, relationships, finances, identity and/or accommodation in the community he may be more likely to re-adopt violent extremism views.

97. In summarising her assessment of the defendant’s risk, Dr Pulman observed:

In my opinion, Mr Elmir poses a risk of committing a serious terrorism offence if not kept under supervision. Although Mr Elmir denounced extremist views during current interview, other sources reviewed in the documentation suggest he continues to maintain strong religious view and ideology and accordingly remains a significant risk of further engagement in extremist religious activities if not monitored. Mr Elmir would benefit from theological support and religious education with a person with a grounded mainstream view of Islam. Engagement with an Islamic chaplain through Corrective Services during his incarceration is recommended if feasible. Upon his release into the community, engagement with a Sheik or religious mentor who can challenge his extremist views and provide guidance and education to Mr Elmir is recommended.

98. Dr Pulman opined that the defendant “is at risk of continued association with others convicted of terrorism and their networks. Should he be released into the community without supervision there remains the risk that he will re-engage with previous online extremist religious networks and explore avenues to pursue activities which support his religious beliefs”.

Additional passages of reports relied on by the defendant

99. The defendant referred to a number of features of the reports of Dr Farrar and Dr Pulman that may be suggestive of change over time and, in particular, that risk factor may reduce in “3 or 6 years” time.

100. Dr Farrar reported the defendant:

1. had acknowledged wrong-doing and stated to Dr Farrar, “I think my experience has woken me up. I made a mistake. Bad experiences will be the main thing that’s going to stop me. I don’t want to be 40 and have nothing”;

2. has “demonstrated a change in values regarding his extremist ideology and had considered some moderation in his views”;

3. was open to a reconsideration of the use of violence as a means to achieve goals;

4. would participate in de-radicalisation and other relevant programs; and

5. identified support from the community and his family for relinquishing the use of violence.

101. Dr Farrar referred to the possibility of the defendant’s risk of committing a serious terrorism offence in the future:

It is possible that Mr. Elmir’s participation in specific inmate rehabilitation programs, including PRISM (Proactive Integrated support Model), Extreme Threat Inmate Individual Management Plan and VOTP (Violent Offender Treatment Program) may reduce his risk of committing a serious terrorism offence in the future.

102. Dr Pulman’s report also included that the defendant:

1. was pleasant and cooperative. However, the defendant accepted that Dr Pulman described him as guarded in response to a question regarding the difference between his beliefs and those of Islamic State;

2. maintained that he did not condone violence;

3. when asked about his views on other religions, the defendant said, “I believe Islam, Islam is right and they are wrong, but I’m respectful towards them but they’re not right” and when asked about his involvement in the Commonwealth offence, he said, “of course I regret it”; and

4. denied any current motivation to engage in further activities supporting violent and religious extremism.

103. Dr Pulman opined that, although based on the material available to her at the time of preparing her report, she considered the defendant to be a medium to high risk of engaging in extremist violence if he is not kept under supervision whilst in the community under an extended supervision order, her opinion was subject to change should further information come to light.

103. In respect of mitigating the risk and rehabilitation, Dr Pulman reported:

Mr Elmir would benefit from theological support and religious education with a person with a grounded mainstream view of Islam. Engagement with an Islamic chaplain through Corrective Services during his incarceration is recommended if feasible. Upon his release into the community, engagement with a Sheik or religious mentor who can challenge his extremist views and provide guidance and education to Mr Elmir is recommended.

105. Dr Pulman also reported that notwithstanding the defendant denied holding extremist views, and there remained the possibility that he did, the risk could be moderated if the defendant was willing to engage in programs.

Duration of an Extended Supervision Order

106. The defendant made the following submission in his primary submission in this respect:

Whilst the defendant does not take issue with the experts’ opinions as to their findings about the risk posed by the defendant based upon their assessments to date, it is submitted that given the delay before the ESO comes into effect in this case, any assessment so far in advance of the proposed ESO period, can only be “mere speculation” at this time as to the risk posed in the ESO period.

Risk Assessment Report

107. As earlier mentioned, Ms Prince prepared the RAR dated 7 January 2019.

108. The report was prepared in the absence of an interview with the defendant, who had indicated that he wished to obtain legal advice prior to participating, given the outstanding Commonwealth charge.

109. In those circumstances, the assessment conducted for the purposes of the RAR was predicated principally on historical information.

Violent extremism risk assessment

110. Ms Prince also applied the VERA-2R to the defendant. According to Ms Prince, the completion of the VERA-2R did not require the active participation of the subject.

111. Ms Prince’s application of the VERA-2R also yielded a risk profile for extremist or politically motivated violence in the moderate to high range. It was noted that the defendant identifies as a Sunni Muslim and maintains a strong view that other forms of Islam are not “relevant”. Ms Prince also observed that the defendant previously ceased employment during Ramadan and in 2012 chose to remain unemployed for a time to focus on his religious studies.

112. The RAR made reference to the defendant’s attempt to join Islamic State in Syria; to his apparent disillusionment with some persons associated with the group (including his comment to EB that “Dawlah [Islamic State] is nice and all but I’m not makeing [sic] hijrah [migration] there to pretend to be muslim”); and to his association in prison with inmates holding extremist views.

113. As to concerns regarding the defendant’s conduct overseas, the RAR observed that “Mr Elmir has acknowledged a willingness to die for the cause, although specific intent of martyrdom [was] not apparent”.

114. Regarding the religious views expressed by the defendant, the RAR noted that the defendant had engaged in regular communications in which he had sought to play an “educator role to peers” and “engage in religious debate”. It was said that “throughout such discussions Mr Elmir appears to hold and promote a strong fundamentalist interpretation of Islam which at times resulted in conflict with others”.

115. The RAR noted that the defendant “has a history of engaging in ordinary criminal group-based violence and may be susceptible to group influence, particularly with ongoing and constant exposure. Information available suggests that he had agreed to set his cell on fire in recognition of the end of Eid, in concert with Sulayman Khalid, another inmate. Whilst this did not eventuate, it at least provides an indication that Mr Elmir may be susceptible to the influence of peers”.

116. The RAR concluded – in line with the assessments of Dr Pulman and Dr Farrar – that the defendant posed a moderate to high risk of engaging in politically motivated violence, violent extremism or terrorism activity.

117. Given the absence of an interview with the defendant, Ms Prince conceded that it is “not possible at this time to provide meaningful insight in to [sic] possible risk scenarios leading to Mr Elmir engaging in serious terrorism activity”.

118. Nevertheless, the RAR observed that:

The willingness to engage in hostile action overseas raises concern regarding his willingness and ability to engage in serious terrorism activity in or from Australian soil.

Beliefs or commitments of the defendant

119. I accept the submission of the plaintiff that there is a range of material to suggest the defendant holds very strong religious beliefs.

120. From May 2012 onwards, Community Corrections noted that the defendant began wearing traditional Islamic dress and that he became increasingly preoccupied by religious themes. A note taken by a Community Corrections Officer on 22 May 2012 recorded:

Elmir was observed to be in different clothing that his other reporting occasions – he had Islamic dress and indicated he was going to the mosque in Bankstown. Defendant has not previously expressed his religious position and this appeared to be a significant change from prior reporting occasions. PPO encouraged ELMIR to continue with this with the view that it encourages pro-social thinking and behaviour.

121. It is reported that, in September 2012, the defendant expressed strong views regarding Islam to his parole officer. The Corrective Services Officer’s note of this conversation read as follows:

PPO asked defendant about weekend event in Sydney City – ELMIR claimed that he was not there and did not know about it until after the events. This led to an in depth discussion with the defendant about his religious beliefs and feelings toward non-Muslims. It was determined during this discussion that ELMIR was strong in his position about Islam; he reported being a Sunni and stated that no other faction within Islam other than Sunni is relevant. ELMIR claimed that he would not take this any further other than to hope other non-believers consider becoming believers. ELMIR advised that he has watched social media lectures by well known speakers such as AL Qaeda heads – claimed that these lectures don’t incite violence against innocent people but do comment on defending against soldiers of war (or similar with reference to military). ELMIR claimed to have nothing against non-believers.

122. In October 2012, the defendant indicated that he did not wish to seek paid employment as he wanted to focus on his religious studies. He noted at that time that he “did not need money, was not concerned about the future, and was comfortable with dying as he believed that it would be ‘God’s will’ on what happened to him”. His parole officer recorded that his views on religion were “beyond moderate”.

123. Corrective Services Intelligence Officers conducted an interview with the defendant on 28 December 2016. The relevant intelligence report recorded:

ELMIR claimed there is only one real sect of Islam which he follows. When questioned regarding his views of other branches of Islam, ELMIR claimed that he does not see the Shia or Alawite sects of Islam as valid or as part of the Muslim religion. When further questioned about possible placement issues with inmates from other religious, ELMIR explained there wouldn’t be issues unless they had issues with him. When enquiries were made as to his views on Islam, ELMIR explained ISLAM as it is portrayed in Australia through books and Islamic scholars is wrong. Further, ELMIR explained Islamic scholars in Australia are inexperienced and that foreign books on Islamic theology are more valid.

124. The intelligence report further noted:

It was noted during the interview that ELMIR expressed a fundamentalist view of Islam. Further, ELMIR showed strong intolerance towards persons of differing religions, which included those who follow other sects of Islam.

125. Police engaged the assistance of an expert in Islamic studies in relation to some items of interest revealed during a review of the defendant’s Facebook page and some summaries of telephone conversations between the defendant and his mother. The expert expressed the following conclusion regarding the defendant’s beliefs:

Based on various comments and views expressed, he appears to be belonging to the Salafi school of thought. Not all Salafis are violent or extremist. Some are. Many Salafis would be seen as very conservative (re thought, social issues etc).

126. In an Offender Telephone System call with his mother on 29 June 2019, the defendant – in speaking about his sentencing hearing – affirmed the strength of his religious beliefs, stating: “I’m the one who needs the punishment. I’m the one who needs the sacrifice, not Allah who needs to be the sacrifice. I’m the one who wants the high levels of Jannah [paradise/heaven]”.

127. In the same call, the offender addressed the fact that he had not stood to acknowledge the Court. His statements in that respect reference a continued focus on religious matters, including the availability of “rewards” after death:

… I lost the point anyway, they said I’m radical anyway, so what’s the difference if I stood or I didn’t stand? Regardless, I didn’t care anyway. What they added was nothing, like the guy, they said, oh, yeah, they says that he’s not, he’s still radical, oh but you’ve been saying for the last one hour hundred per cent I’m still radical. What do I care?

…

But either way he’s gonna say I’m a liar. Well I’m allowed I’d rather be a liar and [humiliate], what’s the difference? They can kick me out, I don’t care. Religious wise, anyway it’s better for me. I’ll get better rewards for it. Hamdulilah [thank god]… I get rewarded for it for it, al-hamulilah [thank god] I’m happy, I don’t care.

128. I accept the submission for the plaintiff that, overall, there is a range of material to suggest that the defendant has frequently been preoccupied with religious themes and holds strong views about Islam. The defendant has, via his conduct overseas, demonstrated a willingness to take extreme steps in connection with those views.

Views of the sentencing court

129. Many of the remarks of Davies J in passing sentence for the foreign incursion offence have been earlier set out in this judgment.

130. Davies J observed that the defendant’s prospects of rehabilitation are “only fair”. His Honour also observed (at [72]):

[72] … Whilst I do not consider that he is likely to reoffend by committing an offence of the type for which he is being sentenced, I cannot be sure that he will not reoffend by engaging in the sort of behaviour contemplated by s 119.4(5) of the Criminal Code of performing services for someone else who may themselves be offending or intending to offend against s 119.1 of the Code.

131. His Honour did not address the prospect that the defendant might offend by committing a serious terrorism offence as that term is defined in the THRO Act. An offence against s 119.4(5) is not such an offence. However, it is regarded as a serious offence, carrying a maximum penalty of imprisonment for life, and there are parallels for the purposes of these proceedings between such offending and serious terrorism offences such as those under s 102.7 (providing support to a terrorist organisation), or s 101.6 of the Criminal Code, being other acts done in preparation for, or planning a terrorist act.

132. The sentencing remarks in respect of the index offences do not provide any relevant insights for present purposes.

133. In relation to the June 2009 break and enter offending, Judge Armitage observed that while the defendant did not present with any psychological or psychiatric condition, he is “somewhat disinhibited when faced with a situation where he might wrongly think that violence is appropriate”.

Risk Intervention Report

134. A Risk Intervention Report dated 22 January 2019 was prepared on behalf of the Department of Justice, Corrective Services NSW in anticipation of an application under the THRO Act in relation to the defendant.

135. Should the defendant be subject to an extended supervision order, the THRO Act mandates a number of conditions under s 29(1A), unless the Court orders differently. The proposed management plan was essentially based upon these mandatory conditions, including electronic monitoring.

136. Having regard to the terms of the Risk Intervention Report, the plaintiff submitted that the imposition of an extended supervision order including the conditions sought in the summons, including that the defendant not leave New South Wales except with the approval of the Commissioner of Corrective Services is likely to satisfactorily mitigate the risk of the defendant committing a serious terrorism offence either in or from Australia or in a foreign country.

Compliance with obligations and post release conduct

137. The defendant has some history of failing to comply with his bail obligations.

138. His criminal history also suggests that some of his 2009 offending occurred while he was subject to a good behaviour bond.

139. The defendant’s previous non-compliance suggests that he would be unlikely to comply with the conditions of an extended supervision order. In June 2013, for example, at the conclusion of his supervision for the aggravated break and enter offence, he was noted to have responded satisfactorily to supervision throughout the period of his parole. The defendant also reported during his interview with Dr Pulman that he had previously been given information relating to the extended supervision order and that he would comply with any orders if made by the Court.

Other relevant matters

Time in custody

140. In 2009, the defendant spent approximately 6 months in custody. In 2011, he was in custody for about 8 months. In 2014, he spent approximately 2 months in custody. His current period of incarceration has extended for approximately 2 years.

141. During his time in custody the defendant has been charged with a number of institutional offences:

1. damage or destroy property on 11 February 2018;

2. unlawful delivery or receipt of property on 10 February 2018;

3. fail to comply with correctional centre routine on 10 February 2018;

4. fail to look after clothing and bedding (etc) on 27 October 2017;

5. fight or other physical combat on 14 November 2014;

6. unlawful delivery or receipt of property on 9 October 2011;

7. damage or destroy cell on 6 August 2011; and

8. fail to attend muster on 29 August 2009 and 2 September 2009, respectively.

142. In addition to those institutional offences, the index offence was, as noted earlier, committed while the defendant was in custody.

143. As earlier mentioned, on 22 June 2017, a Correctives Intelligence Group intelligence report suggested that the defendant and Mr Sulayman Khalid were planning to light a cell on fire on Eid (which was to fall between 25 and 26 June 2017). No fire eventuated. The relevant intelligence report noted that the defendant “is not previously known within Corrective Services NSW (CSNSW) intelligence holdings for involvement in fires or destructive behaviour whilst in custody. Information contained within holdings indicates ELMIR may have had some military training, which may have provided him with specialised skills and knowledge. He is reported within holdings for demonstrating a strong intolerance towards persons following different religious ideologies, which would provide support for him engaging in adverse behaviour directed towards correctional centre staff, under the guide of his religious beliefs”.

144. In October 2017, the defendant was involved with an incident that resulted in him having a falling out with a number of other Muslim inmates. A Corrective Services intelligence report dated 10 October 2017 recorded: “[v]arious inmates have stated that ELMIR is mad, unpredictable and unstable and they want nothing to do with him”.

145. On 25 October 2017, the defendant was observed “continually yelling out to inmates on Unit 9”. The defendant stated that he wanted to “fuck your Aunty & Mother” and “I’m going to fuck them up the arse you fucking dog”.

146. The defendant’s conduct in custody has been consistently poor.

Further intelligence reports

147. The plaintiff submitted that there is some police intelligence material to suggest that the defendant may have, at least in the past, had access to firearms in Australia:

1. In 2013, police received information that the defendant was associating with Mr Omar Hamide, who had taken to carrying around a “larger than normal ‘man bag’ which contained a firearm”.

2. A police intelligence report dated 8 May 2015 referred to a search of a motor vehicle driven by the defendant. Nothing of note was located in the search. The police note of the search records that the defendant had been subject to a Firearms Prohibition Order since October 2014 and that he was “strongly believed to have access to firearms”.

148. I do not consider that the Court may properly draw any inferences from this material alone, which would suggest that the risk associated with the defendant was not limited to offending overseas.

Unacceptable risk of committing a serious terrorism offence (s 20(d))

149. The plaintiff submitted that the Court should be satisfied on the evidence, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision (s 20(d) of the THRO Act).

150. Both parties relied upon the discussion of the elements of s 20(d) in Naaman. The Court of Appeal summarised the key aspects of the provision as follows (at [29]):

[29] Paragraph (d) is a complicated provision, and in light of the State’s submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately.

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

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

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

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

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

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

151. Reference may also be made to the remarks of Rothman J in State of NSW v Ceissman [2018] NSWSC 508 (at [26]–[27]):

[26] …In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.

[27] The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant.

152. “Serious terrorism offences” are defined to be offences against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s 4(1) of the THRO Act).

153. Those offences include:

1. engaging in a terrorist act (s 101.1 of the Criminal Code);

2. doing acts in preparation for, or planning, a terrorist act (s 101.6);

3. membership of a terrorist organisation (s 102.3);

4. recruiting for a terrorist organisation (s 102.4);

5. getting funds to, from or for a terrorist organisation (s 102.6); and

6. providing support to a terrorist organisation (s 102.7).

These offences cover a very broad range of conduct and do not, for example, require the commission of an act of violence.

154. The offence the defendant has been convicted of, being one against s 119.4 of the Criminal Code, is not an offence under Pt 5.3 of the Criminal Code.

155. However, a number of the offences listed above are subject to “extended geographical jurisdiction – category D” such that the relevant offence is committed whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia: see s 15.4 of the Criminal Code. Of particular relevance, extended geographical jurisdiction – category D applies to both an offence of engaging in a terrorist act, contrary to s 101.1 of the Criminal Code and an offence of doing acts in preparation for, or planning, a terrorist act, contrary to s 101.6: see ss 15.4 and 101.6(3) of the Criminal Code.

156. A person commits the latter offence even if:

1. a terrorist act does not occur; or

2. the person’s act is not done in preparation for, or planning, a specific terrorist act; or

3. the person’s act is done in preparation for, or planning, more than one terrorist act (see s 101.6(2)).

157. Accordingly, a person can commit a serious terrorism offence, even where the relevant conduct does not occur in Australia. The defendant may present an unacceptable risk of committing such an offence, even if it is adjudged that the main risk he presents relates to the commission of such an offence overseas.

158. As earlier mentioned, there was no dispute from the defendant that the Court may find the requirement of s 20(d) satisfied at this time. That concession was properly made.

159. The views expressed in the RAR, when read in combination with those conveyed in the expert reports, strongly support a determination that the defendant poses an unacceptable risk of committing a serious terrorist offence if not kept upon supervision.

160. In considering what conduct the defendant is likely to engage in that may amount to a serious terrorism office, the report of Dr Pulman, opined that the defendant is at risk of continued association with others convicted of terrorism and their networks. Should he be released into the community without supervision there remains the risk that he will re-engage with previous online extremist religious networks and explore avenues to pursue activities which support his religious beliefs.

161. There is a range of material to suggest that the defendant has frequently been preoccupied with religious themes and holds strong views about Islam. The defendant has, via his conduct overseas, demonstrated a willingness to take extreme steps in connection with those views.

162. I accept the submission of the plaintiff that the foreign incursion offence demonstrated that the defendant is prepared to go to extreme lengths in pursuit of his religious beliefs. He made a number of attempts to gain entry to a warzone in an effort to fight on behalf of a proscribed terrorist organisation. He obtained military equipment for that purpose.

163. His conduct demonstrated a strong sense of affiliation with an organisation that it well known to have encouraged violence against non-Muslim citizens in western countries.

164. The plaintiff submitted, correctly in my view, the fact that the defendant spent a significant period of time in Turkey, and apparently made a number of attempts to arrange entry into Syria, calls into question his explanation that the offending was spontaneous. However, if the defendant’s decision was, in fact, a spontaneous one, that provides a concerning illustration of the drastic lengths the defendant is prepared to go without an extended consideration of the possible consequences of his actions.

165. The circumstances constituting the foreign incursion offence, together with the defendant’s history of offending, including offending apparently driven by “thrill-seeking” urges, militate very strongly in favour of a determination that the defendant poses an unacceptable risk of committing a serious terrorism offence.

The Additional Issues

166. However, as earlier mentioned there was a dispute as to whether the evidence permitted a conclusion that, at the time an extended supervision order might operate, the Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order.

167. In summary, the defendant’s submissions, in addition to those summarised at the outset of this judgment, were as follows:

1. The plaintiff and the defendant agree the risk assessment task is to proceed by reference to the period during which the defendant could be kept under supervision under the extended supervision order, and s 20(d) requires a consideration of the risk posed by the offender “if not kept under supervision under the order”.

2. If the Court does exercise its discretion to make an extended supervision order, given the uncertainty associated with the current assessment tools and how they can vary over time, an order for no longer than 12 months should be made.

3. The only assessment tool specifically addressing violent extremism is the VERA-2R, an assessment tool which is “significantly influenced by time and social context”.

4. The process of assessment of the risk of violent extremism and politically motivated violence is comparatively new when compared with the risk assessment for general, violent and sexual offending behaviours. Tools for assessing the risk of the probability of the offender posing an unacceptable risk during the likely extended supervision order period are limited. The tools used for the prediction of risk do not have the statistical basis common in other ordinary criminal offending risk assessment tools, and the “assessment of risk of violent extremism cannot be anchored in statistical probabilities”.

5. Section 31 of THRO Act provides for the variation and revocation of orders subsequent in the usual circumstance where the Court has made an extended supervision order after previously satisfying itself, based upon a sufficiency of evidence, to the high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order. Section 31 does not provide a remedy or answer to deficient applications, such as in the present case, where there is insufficient evidence for the Court to be satisfied at the outset for the extended supervision order to be made. The Court could not be satisfied that the defendant does pose such a risk during the extended supervision order period. Given the lack of a risk assessment in this case, which covers the proposed extended supervision order period, combined with the uncertainties associated with the tools for predicting risk in terrorism cases, the defendant contended that no such extended supervision order should be made in this case.

6. Reference was also made to the plaintiff’s reliance on the judgment of the State of New South Wales v Boatswain [2014] NSWSC 1446 (“Boatswain”). The defendant responded to those submissions on a number of bases as follows:   

1. The circumstances of the offender in Boatswain bear no resemblance to the circumstances of the defendant. In Boatswain, the offender had been sentenced to an aggregate sentence of 23 years imprisonment with a minimum term of 15 years, and he had spent the majority of his life since the age of 13 in custody. The application was heard proximate to the extended supervision order period when the offender was released on parole. Furthermore, there was a compelling case for an order being made for a period of 5 years based upon the offender’s history and the expert opinions as to the risk during that 5 year period, as observed by Davies J:

[109] In my opinion, the ESO should be in place for a period of five years. I have made reference earlier in this judgment to the views of Dr Ellis and Dr O'Dea. Neither was required for cross-examination and their opinion concerning the time that will be needed for the Defendant's rehabilitation is amply justified in the evidence. The psychiatric conditions diagnosed are entrenched conditions where there is always a risk of relapse. I have regard, particularly, to Dr Ellis's opinion (at [35] above) that paraphilic disorders are not deemed in remission until five years from a controlled environment such as prison.

[110] As mentioned earlier, the Defendant has spent the vast majority of his life from the age of 13 in custody. The Sentencing Judge was of the view that upon the Defendant's release he would require supervision for a long period and in that sense he found special circumstances and provided for an eight year parole period. For reasons earlier given the Defendant was not released to parole.

[111] Those matters all point strongly in the Defendant's case to a term of five years for the ESO.

2. As referred to at [107] of Boatswain, courts determining applications under the CHRO Act have considered, when determining the length of time of an extended supervision order, that a shorter extended supervision order might in some circumstances be a greater incentive for an offender to pursue rehabilitation. It was observed in State of NSW v Conway [2011] NSWSC 925 by Hidden J, in another CHRO case where a shorter order of 3 years was made (which was less than the 5 years applied), that it is open for the Court upon an application by the State to make an application for a further order. His Honour observed in that case that the lesser period was a significant period in which to monitor the defendant as follows:

[28] … That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. It should be borne in mind that, by s 10(3) of the Act, this Court could make a further extended supervision order, and s 13 provides for the revocation or variation of an order on the application of the State or the defendant. That being so, the position can effectively be reviewed at the end of the 3 year period.

7. The effect of the length of the order sought by the plaintiff in this case would be crushing, oppressive and arguably a disincentive to rehabilitation. Such disincentive is contrary to the object of the THRO Act to encourage offenders to undertake rehabilitation, which rehabilitation would better achieve the primary object of the THRO Act, which is to ensure the safety and protection of the community.

Conclusion: Additional Issues

168. The THRO Act clearly contemplates the making of extended supervision orders in cases where a person will remain in custody after the order is made.

169. Section 26(1) of the Act provides that an extended supervision order will commence either when it is made, or when the eligible offender’s current custody or supervision expires, whichever is the later. Section 26(7) provides that the operation of an order is suspended while the offender is held in lawful custody, while s 26(6) extends the term of any extended supervision order for a period equivalent to the duration of any such suspension.

170. Further, the Court may order that a continuing detention order be followed by an extended supervision order, without the need for a further hearing to be held at or shortly prior to the conclusion of the continuing detention order: see s 39(1) and State of New South Wales v Dunn [2019] NSWSC 426 at [12] and [220]-[221] (per Wilson J).

171. The statutory regime is designed to allow for supervision of person who presents a risk of committing a “serious terrorism offence”, including those in custody for Commonwealth offences such as the foreign incursion offence. The duration of the period in custody may be relevant as to the period in which a risk assessment is applied and the exercise of the Court’s discretion. Naturally, persons who have committed Commonwealth offences, such as the foreign incursion offence, will be among those most likely to present a risk of committing a serious terrorism offence. It would undermine the clear intent of the THRO Act were such persons – when otherwise eligible – to escape the application of the regime on account of the duration of the sentence imposed upon them for a Commonwealth offence.

172. Section 23(2) provides that an application for an extended supervision order, in respect of an eligible offender, may not be made until the last 12 months of the offender’s current custody or supervision.

173. The defendant accepted that the THRO Act contemplated an extended supervision order will not always commence upon the order being made, but contended the THRO Act did not contemplate an offender would remain in custody prior to the commencement of the extended supervision order “for as long a period as the defendant in this case will remain in custody if the order sought is made”.

174. It was contended, by the defendant, that s 23(2) expressed a legislative intention that risk assessments would not be undertaken until sometime “proximate to the extended supervision period” (particularly as to the matters arising for consideration under s 25(3)). There was a related submission that the THRO Act did not contemplate the “atypical and somewhat artificial exercise” attended by the current application which “extended the reach of the [THRO Act]” to bring the defendant within that Act notwithstanding the foreign incursion offence was not an eligible offence under the THRO Act.

175. The difficulty with the defendant’s submission, in this respect, is that s 23(2) fixes a period for the making of an application. That provision is relevantly connected to s 20(b) which, as I will discuss below by reference to Naaman, fixes upon present day or historical considerations and, in that respect, stands in contrast to the risk assessment provisions of s 20(d), which are forward looking. It follows that the provisions of s 23(2) operate upon the period in which the risk assessment will be undertaken but do not necessarily cast a light upon or constrain the forward looking nature of that risk assessment.

176. Further, as the plaintiff contended, by extension, even where an offender is under supervision in respect of the index offence (as opposed to, as in the present case, a Commonwealth offence), an application may be dealt with a significant period before the offender is released from prison.

177. I turn then to the period in which the risk assessment applies.

178. As the Court of Appeal stated in Naaman (at [28]), the inquiry to be made requires a consideration of the “inherently uncertain future” as to whether something will occur.

179. That conclusion derives from the words “if not kept under supervision under the order” found in the expression in s 20(d): “the offender poses an unacceptable risk of committing serious terrorism offence if not kept under supervision under the order”. By those words, the predicative inquiry required by s 20(1)(d) is made referable to the particular offender and addresses the time frame within which the Court’s order can operate: Tillman v Attorney General for the State of New South Wales (2007) 178 A Crim R 133; [2007] NSWCA 327 at [8] (per Mason J and noting that his Honour’s observations related to a counterpart provision in the former CHRO Act and now s 5B) (see also The State of New South Wales v Fisk [2009] NSWSC 778 at [27] (per Howie J). The period for the risk assessment task is 3 years from the day in which the order commences (per s 26(6)(a)).

180. The real likelihood in this matter is that any extended supervision order, if made, would not commence to operate for a significant period of time because, subject to any appeal, the defendant’s non-parole period expires, as mentioned earlier, on 21 May 2021 (the defendant contended that the extended supervision order may not commence until 22 September 2022, the expiry of the foreign incursion offence sentence and, therefore, potentially continues in operation until 22 September 2025).

181. The question ultimately posed by the defendant is broadly how his ongoing imprisonment might bear upon the assessment to be made by the Court under s 20(d) and, in particular, the assessment of risk of the defendant committing a serious terrorism offence during the period in which any extended supervision order may operate.

182. In that respect, the defendant emphasised the uncertainty associated with the risk assessment tasks and, as earlier mentioned, the artificiality of the assessment in the present context.

183. In doing so, emphasis was placed by the defendant upon various passages of the RAR, in which Ms Prince referred to:

1. The process of assessment of the risk of “violent extremism” or “politically motivated violence” is comparatively new, when compared with the risk assessment for general, violent and sexual offending behaviours.

2. The assessment of risk of violent extremism cannot be anchored in statistical probabilities and subsequently a numerical score cannot be provided. Rather, the overall risk judgment is based on the clinician’s assessment of the available information at the time of the assessment.

3. The VERA-2R provides a structured professional judgment approach to the assessment of violent extremism risk. The assessed level of risk and risk scenarios are “significantly influenced by time and social context”.

4. These factors, it was submitted, impact upon both when a requisite finding may be made under s 20(d) and the exercise of a discretion as to the making of an order.

184. I commence discussion of the subsidiary issue by reference to my earlier discussion of risk. I adopt, but do not repeat, my earlier analysis of risk. The offender has had held extreme religious beliefs for a long time and has made significant efforts to engage in violence in connection with those beliefs.

184. The expert evidence, both as to the risk posed by the defendant and as to the appropriate duration of the orders, was unchallenged. The defendant has not himself adduced any evidence that suggests his risk has moderated, or even that it may do so in the future. Three different experts have expressed very clear views as to the defendant’s risk of committing a serious terrorism offence. That evidence shows that the risk is likely to persist for at least the next three years.

185. Both Drs Pulman and Farrar concluded that the defendant poses a moderate to high risk of committing a serious terrorism offence. Dr Pulman observed that she “supports the proposed duration of the Extended Supervision Order remaining in place for a period of three (3) years” whilst Dr Farrar expressed a view that “an Extended Supervision Order of a longer duration would be appropriate”. Ms Prince did not address the appropriate length of the order, but similarly placed the defendant in the moderate to high risk category and, in fact, recommended that the Court consider an interim detention order.

186. The Court has determined that the foreign incursion offence was sufficiently serious to warrant a lengthy term of imprisonment. Justice Davies’ conclusion that the offender had not renounced his extreme views played a significant role in that determination. I accept the submission advanced by the plaintiff, there is a potential to undermine the protective nature of the regime set out in the THRO Act if the provisions of that Act were found not to apply to the defendant merely because of the length of the sentence imposed upon him.

187. The assessment of risk needs to be undertaken in the context of the objects of the THRO Act. The primary object of the THRO Act is to “provide for the extended supervision and continuing detention of certain defendants posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community” (s 3). The safety of the community is the “paramount consideration” of the Court in exercising its discretion under s 25(1) of the THRO Act.

188. The defendant’s submission as to s 31 of the THRO Act and Boatswain (as earlier summarised) was responsive to the following submission, in summary, by the plaintiff:

1. Section 31 of the THRO Act provides for the variation or revocation of an extended supervision order in the following terms:

31 Supervision order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the eligible offender to whom it applies.

(2) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.

(3) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

(4) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, both the Commissioner of Corrective Services and the Commissioner of Police must provide the Attorney General with a report on the eligible offender at intervals of not more than 12 months.

(5) A report must indicate whether the Commissioner concerned considers the continuation of the extended supervision order to be necessary and appropriate.

2. No authority was located which specifically addressed the operation of s 31 of the THRO Act, which has been in place for less than 2 years. However, it was submitted that s 31 of the THRO Act applied in cases such as the present. Section 31(1) provides that the Court can make an order varying or revoking an extended supervision order “at any time”. Moreover, the application can be made by either the State or an eligible offender.

3. The prospect of variation or revocation following rehabilitation was touched upon in the second reading speech accompanying the introduction of the Terrorism (High Risk Offenders) Bill 2017 (NSW), where the Attorney-General said:

If an offender undergoes rehabilitation and no longer poses an unacceptable risk of committing a future serious terrorism offence, they will no longer be subject to the extended supervision or continuing detention.

4. Furthermore, the authorities concerning s 13 of the CHRO Act, which – insofar as relevant to the present question – is in identical terms to s 31 of the THRO Act, make it plain that the Court’s discretion to vary or revoke an extended supervision order is very broad.

5. The existence of a mechanism for variation or revocation has been regarded as relevant to a consideration of the length of an extended supervision order, and the conditions applying under it. In Boatswain, for example, the State applied for an extended supervision order under the CHRO Act for a period of 5 years. Much like the present case, the defendant did not dispute that the statutory preconditions for the making of the order were met. He contended, however, that an extended supervision order should only be made for a period of 3 years. In deciding to impose an extended supervision order for a period of five years, Davies J observed (at [113]):

[113] … it is always open to the Defendant to make application under s 13 of the Act to vary the conditions or the length of the ESO. A defendant who shows a significant change in circumstances and good progress towards rehabilitation may persuade a court that the ESO be varied in some way. Although the Defendant submitted that such a situation placed the onus on the Defendant rather than a shorter ESO requiring the Plaintiff to prove that another one was needed after three years, it seems to me that an onus on the Defendant is precisely what is appropriate in all the circumstances.

6. Those observations ought to be construed as establishing that a defendant automatically bears an onus of applying for a variation. At the least, however, Davies J’s reasons make clear that such an onus will not fall on the State merely because of its greater resources. To the contrary, there will be cases where the evidence suggests that a longer order is appropriate and that the obligation to apply to shorten the order should fall on the defendant. This is such a case.

190. There is force in the submissions of the defendant that the provisions of s 31 do not provide a remedy or answer to an application in which an evidentiary basis for the making of an extended supervision order is not made out, particularly in relation to the assessment of risk over the duration of a proposed order (although an application for variation may otherwise be made in the usual course). However, in this case, there is ample evidence to enable the Court to reach the requisite satisfaction in s 20(b) even though issues do arise, as a separate discretionary consideration, as to the duration of any order. (For completeness, I do not consider Boatswain is of any significance in the present context).

191. It may be further observed that the steps identified by the experts as relevant to rehabilitation and the mitigation of risk are yet to be relevantly undertaken by the defendant.

192. I am satisfied to a higher degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an extended supervision order.

Discretionary considerations as to whether to make the order

193. The statutory preconditions for the making of an extended supervision order are met.

194. Even where the Court determines that each of the threshold criteria enabling the making of an extended supervision order are satisfied (including the unacceptable risk test), the Court retains a discretion as whether or not to make an order.

195. The defendant has held extreme religious beliefs for a lengthy period of time, and has evinced a willingness to take very significant steps towards engaging in violent conduct in connection with those beliefs. In those circumstances, and having regard to the strength of the observations in the various expert reports regarding the risk the defendant poses (and my findings in that respect), as well as the protective objects of the THRO Act, in s 3, there is a substantial discretionary basis to justify the grant of an extended supervision order.

196. However, I do not consider the duration of the extended supervision order sought in the primary relief by the plaintiff should be granted.

197. I do not consider that the Court may be satisfied that the current evidence of the experts unequivocally addressed the risk the defendant would pose in the latter part of the extended supervision order proposed as primary relief by the plaintiff.

198. It is true, Dr Farrar opined that “an Extended Supervision Order of longer duration would be appropriate” but did not specify the greater period she had in mind. However, Dr Pulman supported the proposed duration of 3 years.

199. In coming to a conclusion as to duration, I have taken into account, the duration considered appropriate by Dr Pulman and Dr Farrar, the period the defendant will spend in custody before the operation of the order under supervision and control and the submissions of the defendant that the longer duration proposed by the plaintiff may act as a disincentive to rehabilitation. I emphasise I have had regard to the period the defendant may spend in custody and the management of risk during that period. Otherwise there was a strong basis for making the primary orders sought by the State.

200. In an alternative submission of the plaintiff, an extended supervision order was sought for a period of 18 months, by which time the applicant spent in custody and under the order will correspond to approximately a 3 year period. The defendant sought in the alternative a 12 month extended supervision order. I consider an extended supervision order of 12 months to be appropriate.

201. Both parties accepted that, if the proceeding were dismissed, the plaintiff would be “shut out” from seeking an extended supervision order on account of the need for a nexus between the application and a NSW indictable offence. Nonetheless, I do not consider that an adjournment of the proceedings is the appropriate course in the disposition of the proceedings (the first alternative position of both parties). In the light of the findings made in this judgment as to risk it is appropriate that supervision operate upon release, including if any appeal is successfully brought by the applicant, and that it is inappropriate given the findings I have made to rely upon urgent hearing made upon any further and later renewed application. Further, there must be at least some doubt, assuming that orders were sought for further psychiatric or psychological examinations, whether orders to that effect may be made, in the circumstances of this matter (see, for example, the limits of s 25(4) of the THRO Act).

202. Lastly, there was no dispute as to the conditions sought by the plaintiff in para 3(b) of the relief claimed in the summons (set out at [2] above).

203. Dr Pulman approved of those conditions, as did Dr Farrar; although Dr Farrar suggested some additional conditions. The conditions in Schedule A to the summons filed 19 February 2019 are appropriate.

Orders

204. The plaintiff shall bring in short minutes of order reflecting this judgment by 12noon on Friday, 20 December 2019.

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Decision last updated: 30 January 2020