State of New South Wales v Elomar (Final)

[2021] NSWSC 411

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Elomar (Final) [2021] NSWSC 411

Hearing dates:

8, 9 April 2021

Date of orders:

22 April 2021

Decision date:

22 April 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Summons dismissed.

(2) Application for extended supervision order dismissed.

(3) Interim supervision order revoked.

Catchwords:

CIVIL LAW - high risk offender - terrorism - violent extremism - whether offender should be subject to further extended supervision order - whether unacceptable risk offender will commit serious terrorism offence - where offender has committed no acts of terrorism - where offender has family members involved in such activities - offender susceptible to influence - calculus of risk - appropriate test - where offender made substantial progress on previous ESO - supportive family - attack on credibility of offender’s father - where senior politician describes father as community leader and man of courage - where offender rejected associates with connection to extremism - strong case of rehabilitation and network of positive influences

Legislation Cited:

Crimes Act 1900 (NSW), s 60(3A)

Evidence Act 1995 (NSW), s 50

Terrorism (High Risk Offenders) Act 2017 (NSW), ss 27, 28, 59F, 60

Cases Cited:

Cheema v State of New South Wales [2020] NSWCA 190

Cornwell v Attorney General for NSW [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

R v Ahmed Elomar (unreported, District Court of NSW, Noman SC DCJ, 10 February 2021)

State of New South Wales v Dickson (Final) [2020] NSWSC 100

State of New South Wales v Elomar(No 2) [2018] NSWSC 1034

State of New South Wales v Elomar(Preliminary) [2020] NSWSC 1850

State of New South Wales v Elomar(Preliminary) [2021] NSWSC 403

State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328

State of NSW v Barez(Preliminary) [2019] NSWSC 1589

State of NSW v Ceissman [2018] NSWSC 508

State of NSW v Elomar(No 3) [2018] NSWSC 1234

State of NSW v Tiggelen [2018] NSWSC 1399

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Ahmed Elomar (Aka Ahmad Elomar; Aka Charlie Jafesn) (Defendant)

Representation:

Counsel:
J Emmett SC; M Dalla Pozza (Plaintiff)
P Lange (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Kings Law Group (Defendant)

File Number(s):

2021/33506

Publication restriction:

Nil

Judgment

1. By summons filed 23 November 2020, the State of New South Wales makes an application for an extended supervision order (“ESO”) for a period of two years under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) in relation to the defendant, Ahmed Elomar. While the formal statutory pre-requisites for the making of an ESO are established, I am not satisfied to a high degree of probability that Mr Elomar poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision pursuant to such an order. The summons must be dismissed. These are my reasons for declining to make the final orders sought by the State.

2. Mr Elomar was subject to an ESO imposed by Bellew J on 8 August 2018 for a period of two years. [1] On 15 December 2020, Beech-Jones J made an interim supervision order (“ISO”) commencing 24 January 2021 for a period of 28 days. [2] That ISO was renewed for a further 28 days by Bellew J on 19 February 2021 (to commence on 21 February 2021), and again on 19 March 2021 (to commence on 21 March 2021). At the conclusion of the final hearing on 9 April 2021, I extended the ISO for a further six days to allow the maximum time possible to consider the evidence and submissions and prepare this judgment. By that date Mr Elomar will have been subject to an ISO for the (3 month) maximum period allowed by sub-ss 28(7) and (8) of the Act. [3] The ISO will expire on 23 April 2021.

   1. State of NSW v Elomar (No 3) [2018] NSWSC 1234.

   2. State of New South Wales v Elomar (Preliminary) [2020] NSWSC 1850.

   3. State of New South Wales v Elomar (Preliminary) [2021] NSWSC 403.

Overview of the legal framework

3. The primary object of the Act in s 3(1) is:

“…to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community.”

4. Section 3(2) provides that “[a]nother object of this Act is to encourage these offenders to undertake rehabilitation”. The structure and purpose of the legislation makes it clear that the primary objective of the Act is to ensure the safety of the community.

5. Section 20 of the Act lists the criteria that must be satisfied before making an ESO:

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:

(a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed):

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

(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and

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

(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, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.

6. The State submits that Mr Elomar is an “eligible offender” (as defined in s 7 of the Act) and a “convicted NSW terrorism activity offender” (as defined in s 10) to which the Act applies. The State notes that Beech-Jones J made these findings at the preliminary hearing: in State of New South Wales v Elomar (Preliminary) [2020] NSWSC 1850 at [4] and [8]-[9]. Mr Elomar conceded these matters although he disputed that the requirement in s 20(d) of the Act is established. The findings of Beech-Jones J at the preliminary hearing are not binding at the final hearing and I must consider whether the formal prerequisites are established as well as decide if the test in s 20(d) is met.

7. Mr Elomar concedes, correctly, that he is caught by s 10(1)(c)(ii) of the Act, to the effect that he:

(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.

8. The concept of “advocating support” for violent extremism or a terrorist act encompasses a broad range of conduct: see s 10(1A)(a) of the Act. An “association” or “affiliation” with a person is also defined broadly and includes “networking or communicating” including via social media applications and websites: see s 10(1A)(b).

9. Mr Elomar does not dispute that he has previously had such associations. His associations with persons who advocate in favour of terrorist acts or violent extremism, and what expert evidence establishes is his susceptibility to be influenced by others, lie at the heart of the State’s application for a further supervision order. There is no evidence that Mr Elomar himself has ever been involved in planning or committing a terrorist act, advocated violent extremism, been a member of a terrorism organisation, or attempted to fight in a foreign incursion. However, members of his family and social network have done some or all of those things and, over a number of years, Mr Elomar associated with those people.

10. The statutory pre-requisites for the making of an order under sub-ss 20(a), (b) and (c) are established. The live question is whether the Court “is satisfied to a high degree of probability that [Mr Elomar] poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order”: s 20(d) of the Act.

11. A “serious terrorism offence” is defined in s 4 as “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”. The Court does not need to be satisfied that there is an unacceptable risk that Mr Elomar will commit a terrorist act or be personally involved in acts of violent extremism. It is sufficient for the State to establish that there is an unacceptable risk that Mr Elomar may commit, for example, an offence of possessing things connected to a terrorist act or planning or doing any act in preparation for a terrorist act: ss 101.4 and 101.6 of the Criminal Code. Counsel for the State set out some of the offences that are caught by the expression “serious terrorism offence” in their written submissions at [32]:

“A ‘serious terrorism offence’ is defined to mean an offence against Part 5.3 of the Commonwealth Criminal Code (Criminal Code) for which the maximum penalty is 7 or more years of imprisonment: s 4(1) of the Act. These offences include:

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

providing or receiving training connected with terrorist acts (s 101.2);

possessing things connected with terrorist acts (s 101.4);

collecting or making documents likely to facilitate acts (s 101.5);

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

directing the activities of a terrorist organisation (s 102.2);

membership of a terrorist organisation (s 102.3);

recruiting for a terrorist organisation (s 102.4);

training involving a terrorist organisation (s 102.5);

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

providing support to a terrorist organisation (s 102.7).

Notably, the offences cover a very broad range of conduct and do not, for example, require the commission of an act of violence. Inclusion of such a wide range of conduct is consistent with the legislative intention underlying Act, being protection of the community.”

(Footnotes omitted.)

12. The determination of whether a defendant poses an “unacceptable risk” requires a consideration of the likelihood of risk along with the magnitude of the consequences if that risk manifests itself. The correct approach to this issue was articulated by Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26]-[32]:

“[26] It is further necessary for the Court to deal with the construction of the term, ‘unacceptable risk’, within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of ‘harm, hazard or loss’. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. 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.

[28] A risk that is insignificant is not an unacceptable risk, and therefore not a risk in my view, with which the Court should be concerned: see State of NSW v Pacey [2015] NSWSC 1983, per Harrison J who said:

‘A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.’

[29] With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term ‘insignificant’ instead of ‘very low’.

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

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

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

The Evidence

13. The parties are to be commended for providing a relatively contained amount of material at the final hearing. At the encouragement of Beech-Jones J at the preliminary stage, and pursuant to orders under s 50 of the Evidence Act 1995 (NSW), a number of evidence summaries were prepared and relied on with the consent of both parties.

14. The plaintiff read a number of affidavits with exhibits and relied on various expert reports. The voluminous exhibits to some of the affidavits read by the plaintiff were adduced in the form of five evidence summaries. This material was tendered in two volumes and marked exhibit A.

15. The evidence summaries included previous psychologist reports, risk assessment reports and other expert reports, Mr Elomar’s criminal and custodial history, facts of the index offence and other offences, OIMS case notes, police records, intelligence reports, breach reports, Community Correction reports, investigators’ notes, and many other documents relating to Mr Elomar’s associates. The State also relies on the judgment of Rothman J in State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 for the limited purpose of identifying associations between Mr Elomar and various people.

16. The State tendered separately Mr Elomar’s inmate profile (Exhibit B), custodial history (Exhibit C), a risk management report dated 30 November 2020 under the hand of Kimberley Rambaud and endorsed by Shane Bagley (Exhibit D), recent OIMS reports (Exhibit E), the sentencing judgment of Judge Woodburne SC in relation to the index offence (Exhibit F), a supervision order direction (Exhibit G) and bail report of Mahmoud Elomar, Mr Elomar’s cousin (Exhibit H).

17. On the first day of the hearing, Detective Senior Constable Patch of the High Risk Terrorist Offender Unit, NSW Police and Mr Bagley, Terrorism High Risk Offender Applications and Operational Governance Officer of Corrective Services NSW were called by the State. Three expert witnesses - Ms Dewson, Ms Czerkies and Dr Allnutt - gave evidence concurrently. They provided opinions as to Mr Elomar’s risk of committing a serious terrorism offence and the triggers, or risk factors, that may lead him to commit such an offence.

18. Mr Elomar also relied on a number of affidavits and other documents that were included in Exhibit A. An affidavit of Mamdouh Elomar (Exhibit 1) and two investigators’ notes (Exhibit 2 and 3) were tendered at the hearing. Mamdouh Elomar, Mr Elomar’s father, was called for cross-examination on the second day of the hearing.

Background

19. Mr Elomar was born in Australia and grew up in the western suburbs of Sydney. He is the second of five children. His parents emigrated from Lebanon. Mr Elomar commenced work at a young age at his father’s steel fabrication workshop, learning to drive a crane at the age of 10 or 11. Although he experienced learning difficulties at school, he was a talented boxer and boxed professionally for a period of time.

20. Mr Elomar is now 38 years old. He lives on his father’s property in western Sydney with his wife and six children. Mr Elomar keeps horses on the property and his long-term ambition is to breed and show Arabian purebred horses. He recently completed Certificate III and IV in personal training through the Australian Institute of Fitness and has expressed a desire to work as a personal trainer.

Matters under section 25 of the Act

21. Section 25(3) lists the matters that the Court must have regard to in determining whether or not to make an ESO, although the safety of the community remains the paramount consideration: s 25(2) of the Act. The list in s 25(3) is not exhaustive and permits the Court to take into account any other matter it considers relevant.

22. The State relies substantially on Mr Elomar’s criminal history, his behaviour while subject to the previous ESO, information gathered from intelligence authorities and his associations and susceptibility to the influence of others. I have considered each of the mandatory factors in s 25(3) but will focus on the matters upon which the State places particular reliance.

The “index” offence and the views of the sentencing judge – s 25(3)(k)

23. Mr Elomar first came under the purview of the Act in 2012, after an incident that occurred when he was participating in a protest in Hyde Park. A group of 300 – 400 people gathered to protest the derogatory depiction of the Prophet Muhammad in a YouTube film that originated from the United States. It was just one of a number of protests that occurred across the globe in response to that particular film. The group congregated on the steps of the MLC building in Martin Place, Sydney. Police formed a line in front of the protestors in order to move them on to Hyde Park. The majority of the protestors behaved peacefully, indeed some were praying, however a small group of males began pushing the police line and hurling objects. The sentencing Judge found that Mr Elomar was “at the forefront of the aggression”. He was captured on CCTV footage throwing a water bottle at police. That offence was taken into account on a Form 1.

24. Later, when the group had moved to Hyde Park, Mr Elomar was captured on CCTV footage carrying a large, black flag with the slogan, “OUR DEAD ARE IN PARADISE, YOUR DEAD ARE IN HELL”, which was attached to a thin, wooden flagpole of about two metres. He was wearing a t-shirt with “Sixth Pillar” written across his chest. The group attempted to move down George Street but were again blocked by police. Mr Elomar was, again, one of a number of protestors pushing against the police line. Police officers deployed capsicum spray in the direction of the crowd. Mr Elomar raised the wooden flagpole above his head and struck a police officer on the top left side of his head. The force of the blow caused the flagpole to bend. The police officer collapsed, lost consciousness and suffered a mild concussion. He was taken to St Vincent’s Hospital where he received four stitches to his head wound.

25. Mr Elomar was charged with reckless wounding of a police officer while in the execution of duty during a public disorder contrary to s 60(3A) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years imprisonment. Mr Elomar was sentenced by her Honour Judge Woodburne SC to a term of imprisonment of 4 years and 8 months, with a non-parole period of 2 years and 6 months. That sentence expired on 8 May 2018.

23. Referring to the various reports tendered on sentence, her Honour found that Mr Elomar’s “mild intellectual disability on a background of epilepsy and [a] probabl[e] learning disorder” (discussed further below), impacted his “cognitive faculties and emotional restraints to make reasoned judgments” but did not deprive him of the ability to recognise that the offending was wrong. Her Honour moderated the sentence but found that general deterrence, the need for denunciation and personal deterrence were still relevant considerations.

24. Her Honour made a finding that Mr Elomar was remorseful based on a number of character references attesting to his sincere remorse and willingness to get his life back on track. In relation to rehabilitation, her Honour found that Mr Elomar’s prospects were reasonable, enhanced by a lack of substance abuse and support from family and friends.

Criminal history and pattern of offending behaviour – s 25(3)(j)

28. Mr Elomar’s criminal history does not include any terrorism related offences. While his criminal record discloses a pattern of traffic offending, this is not particularly relevant to the question before the Court except insofar as it demonstrates disobedience to the law and an indifference to court orders.

29. Mr Elomar was convicted of failing to keep a firearm safely in 2003.

30. In 2005, he was convicted of a number of offences including assault occasioning actual bodily harm and destroy damage property, arising out of a violent incident outside a KFC restaurant. He was sentenced to a good-behaviour bond of two years.

31. In 2012, Mr Elomar was convicted of affray and assault and sentenced to a term of imprisonment of 12 months with a non-parole period of 8 months. The offences arose in the context of a conflict between a group of men associated with an Islamic bookstore in Bankstown, and another group associated with a neighbouring juice bar, “Juicylicious”. The owner of the bookstore essentially tried to intimidate the proprietors of the newly established juice store by encouraging the community to boycott the business, asserting that the owner of Juicylicious was of the Shia branch of Islam and a supporter of Bashar Al-Assad (the President of Syria). The bookshop owner demanded proof that the Juicylicious owner did not support Al-Assad in the form of a donation to the bookstore. The owner of Juicylicious refused to donate and a few days later a group of 20 men, including Mr Elomar, surrounded the juice store and assaulted the owner. Mr Elomar grabbed the owner by the throat and threatened to burn down the store. The owner sold Juicylicious two weeks later.

32. Towards the end of 2012, Mr Elomar was involved in another incident giving rise to two charges of common assault. Mr Elomar, along with his brother, Mohammed Mahmoud Elomar and cousin, Khaled Sharrouf, attended a shop belonging to the family of their sister’s husband after the breakdown of their sister’s marriage. Mr Elomar punched one of the members of the family (who suffered from cerebral palsy) in the head at least four times. Mr Elomar was sentenced to a fixed term of 7 months’ imprisonment for this offence.

Mr Elomar’s “associations” as information concerned with the likelihood that he will commit a serious terrorism offence – s 25(3)(m)

33. Mr Elomar’s historical and current associations with people who have advocated support for terrorism and extremist ideologies is, quite properly, of significant concern to the State. This is particularly so in the context of the opinions of various experts in relation to Mr Elomar’s susceptibility to influence.

34. Mr Elomar is part of a large extended family where some members have been known to advocate support for terrorist acts and violent extremism. His younger brother, Mohammed Mahmoud Elomar, was killed in Syria in 2015 after he travelled there to fight alongside the Islamic State (“ISIS”). Mahmoud’s wife, Fatima Elomar, was convicted of supporting Mahmoud in that endeavour. His cousin, Khaled Sharrouf, is also believed to have been killed after travelling to fight for ISIS. Mohammed Ali Elomar, Mr Elomar’s paternal uncle, is currently serving a 28-year term of imprisonment for conspiring to do acts in preparation for a terrorist act. The State does not rely on any recent association with the abovenamed people.

35. The State tendered the decision of Rothman J at the preliminary stage of the previous ESO “for the limited purpose of identifying the associations between the Defendant and various persons named in that judgment which were relied upon by the State in the course of those proceedings [in 2018]”. [4] Because the State does not rely on any recent association between the Defendant and those persons in these proceedings, it is not necessary to set out their names. These historical associations are relevant to the risk factors identified by the experts.

    4. State of New South Wales v Elomar (No 2) [2018] NSWSC 1034.

36. The State sets out a number of more recent associations of concern in their submissions:

• Ibrahim Massri – Mr Elomar associated with Mr Ibrahim Massri in February 2020 by sending eight multimedia messages, one text message and receiving three missed calls. Police hold intelligence that Mr Massri is involved in the recruitment of ISIS fighters and has facilitated the transfer to the leader of a known terrorist organisation.

• Edriz Barez – On 30 June 2019, Mr Elomar exchanged 46 messages over Whatsapp with Mr Edriz Barez using a ‘phone that belonged to either his mother or his wife. Those messages supposedly related to horses. Mr Barez, by reason of a blatant tattoo down his left arm saying “ALQAEDA”, has been known to support the terrorist organisations Al-Qaeda: see also Fullerton J’s comments in State of NSW v Barez (Preliminary) [2019] NSWSC 1589 at [16]. Mr Barez was previously subject to an ESO which has expired, and the State has not sought to impose a further ESO. Mr Elomar was charged with breaching his ESO in relation to this conduct, although the charges were dismissed. The fact that the offences were not established beyond reasonable doubt does not mean they are irrelevant to an assessment of risk for the purpose of the Act. The Court is not called upon to apply the criminal standard of proof. Rather, the assessment of risk must be undertaken globally with the paramount purpose of the Act kept firmly in mind. I have taken the allegations relating to Mr Barez and Mr Elomar’s breach of his ESO into account although I have been cautious not to give them too much weight.

• Moawiya Holali – On 2 August 2020, Mr Elomar sent a text message to Mr Holali saved in his contact list as “Marlwer Bro For Horse”. Police intelligence reports indicate that Mr Holali has been in possession of photos and videos of violence, torture and human body mutilation and that he may be involved in funding violent extremism. There is a further report that he may have been involved in an attack on the Syrian embassy in Canberra in 2012.

• Diaa Kara-ali – In September 2018, Mr Elomar sent and received text messages from Mr Kara-ali. Mr Kara-ali is associated with the Diwan Al Dawla guild described as a “religious community”. Mr Kara-ali was allegedly aggressive towards police when they attended the guild and has referred to police as “disgraced souls”, “putrid” and “the devil”. There is no evidence before the Court to suggest the Diwan Al Dawla guild is a terrorist organisation, or that Mr Kara-ali has advocated support for a terrorist act or violent extremism.

• Abdul Alnimer, Ausamah Alnimer, Nadeer Alnimer – Mr Elomar’s father gave evidence that he considers these brothers to be members of his family. The brothers do work for the family and their businesses. The three brothers are suspected by Police to hold extremist ideologies. A fourth Alnimer brother, Shareef Alnimer, is believed to be in Syria fighting with ISIS. Mr Elomar is closely associated with the Alnimer family. He openly told his Community Corrections Officer that the brothers sometimes look after his children and that they have family dinners together on Saturday nights. They were also involved in construction work on his father’s property.

• Oussama Benbrika – Between 24 April 2020 and 7 May 2020, Mr Elomar exchanged 36 multimedia messages, 74 text messages and two phone calls with Mr Benbrika. There was also contact on 8 May 2020 and 26 June 2020. Mr Benbrika also comes under suspicion because of his own familial relationships. His father is a convicted terrorist. There appears to be no particular evidence suggesting that Mr Benbrika supports his father’s extremist views. The State relies on an incident on 8 June 2018 where police stopped and searched a vehicle containing Mr Benbrika and four others. Police located three copies of the Qur’an with bookmarks on pages that referred to “killing Shi’ites” and “enemies as livestock”. In view of the notorious attitude of ISIS to Shia Muslims, the relevance of this is readily apparent. Even so, this somewhat tenuous and indirect connection demonstrates the nature of some aspects of the State’s case in support of its application for a further supervision order against Mr Elomar. Mr Benbrika also buys, sells and trains horses and it seems the flurry of messages were related to Mr Elomar’s interest in horses.

• Mazen Touma – Mr Touma has been convicted of terrorism offences. There does appear to be some historical association with Mr Touma as referred to in State of New South Wales v Elomar (No 2). [5] However, this is not an instance of actual recent association. The evidence states that Mr Elomar raised the prospect of contacting Mr Touma with his Community Corrections Officer, was advised not to, and apparently did not contact Mr Touma.

  5. [2018] NSWSC 1034 at [65].

37. While some of these associations appear to be somewhat tenuous, it is the combination of the number of associations, the period of time over which they have occurred and Mr Elomar’s involvement in protests and offences of violence that raise concern. This concern is more potent when are considered alongside the opinions of the experts as to his susceptibility to influence. These factors combined raise a serious question as to whether there is an unacceptable risk that Mr Elomar will commit a serious terrorism offence.

Reports of Court appointed psychiatrists and other assessments prepared by qualified experts – s 25(3)(a), (b) and (c)

Beliefs or commitments of the offender that support engaging or participating in terrorism activities – s 25(3)(i)

38. Dense reports were prepared by Chelsey Dewson (psychologist) and Dr Stephen Allnutt (psychiatrist). I have also considered reports by Dr Katie Seidler (forensic psychologist) and Mr Elomar’s treating psychologist and counsellor, Katrina Czerkies. These reports, in turn, summarised a number of earlier expert reports. Additionally, the evidence summaries contained detail of earlier reports. Ms Dewson, Ms Czerkies and Dr Allnutt gave concurrent evidence at the hearing. These reports presented a reasonably consistent body of opinion evidence. It is impossible in the time available to summarise the contents of this evidence. I will merely set out the key considerations as they relate to Court’s determination of the application pursuant to s 25 of the Act.

39. Ms Dewson and Dr Allnut also provided annexures to their psychological reports that provided a summary of material subject to orders under ss 59F and 60 of the Act (“the Terrorism Intelligence Orders”). I have considered the summary of that material contained in those annexures and the way in which that material has informed their respective opinions.

40. The experts provided their opinions on the level of risk of Mr Elomar committing further offences and specifically violent offending and offences involving “violent extremism”. Various tools were used by the experts and there was some criticism of these, in particular the “Violent Extremism Risk Assessment - Version 2 Revised” (“VERA-2R”). This is not an actuarial tool and it was not presented as such. However, I accept the joint opinion of the experts that it is useful protocol to provide structure to the process of interviewing an offender where there is a need to provide an assessment of the likelihood that they will be involved in violent extremism and terrorism offences.

41. The reports show that Mr Elomar’s engagement in the process was commendable. For example, Dr Allnutt said he was “cooperative, with clear and coherent speech”, answered the questions asked of him and “was open to clarification”. He did not present as “overly resistant, resentful or dissatisfied with being interviewed… given his circumstances”.

42. There is a consistent opinion that Mr Elomar has a mild intellectual disability and a desire to please others that makes him vulnerable or susceptible to the negative influence of others. He has some impulse control issues, and this is reflected by his criminal history, particularly his propensity to act violently in stressful situations.

43. Ms Dewson took the view that there was a “high-risk” that Mr Elomar would commit some kind of criminal offending in the future and a “moderate risk” that he would engage in “violent extremist behaviour” and “violent offending” generally. She described him as a “vulnerable individual” and noted his community and family connections and relatively low cognitive functioning. I generally accepted Ms Dewson’s evidence but did not accept her opinion that Mr Elomar lacks insight and continues to place himself in “high risk situations” through associating with “antisocial people”. The evidence shows that in recent times Mr Elomar has actively disassociated himself from people known to have contacts with extremist groups. His approach to the possibility of having contact with Mazen Touma provides an illustration. Mr Elomar sought the advice of his supervising officer and accepted the advice not to contact Mr Touma. How this can be held against him, as some of the submissions suggest it might be, is a mystery.

44. Ms Dewson gave the following opinion in relation to Mr Elomar’s beliefs and commitments:

“Mr Elomar has consistently denied holding any commitment to an ideology (in this case, religion) that justifies the use of violence. That being said, his behaviour around the time of the index offence and whilst in the early stages of custody suggests to me that he likely viewed violence as a means to achieve religious goals. The exact nature of his ideology at that time is somewhat unclear. However, this appears to have developed from his experiences being incarcerated in Lebanon and potentially associated with his belief that the Australian government may have been responsible (or at the least, didn’t support him upon his return to Australia). He strongly denied any current ideology that justifies the use of violence. He acknowledged having some grievances towards ASIO in the past, and his correspondence with others suggests frustrations at times towards the Australian government. There was no evidence that he currently holds strong grievances or perceived injustices.”

45. Ms Dewson was provided the additional material subject to the Terrorism Intelligence Orders described at [39] above after providing her original report. In her supplementary report, Ms Dewson found that the additional information had already been considered in the initial risk assessment and did not change the overall risk formulation.

46. Dr Seidler administered various well-known risk assessment tools and provided generally similar opinions. Dr Seidler thought Mr Elomar’s risk of committing an offence was high, but the risk of violent offending or extremist violence was moderate. Again, Dr Seidler viewed Mr Elomar’s low intellectual functioning and vulnerability to negative peer influence as the major risk factors. On the other hand, Mr Elomar has consistently denied supporting terrorism and extremism. His past support of a more radical form of Islam was “best understood as part of the influence enacted on him by those he was associated with”. The “salient area of risk” relates to his “personal associations” including, but not limited to, his associations with his family members (now deceased or incarcerated).

47. Ms Czerkies found that Mr Elomar’s current risk profile for being involved in “violent extremism, politically motivated violence or terrorism” was “low/moderate”. She noted that this was significantly reduced (since the ESO was made in 2018) when Mr Elomar’s risk profile was “moderate to high”. She “hypothesised” that the “significant reduction in risk” was due to the ESO itself and the improvement in protective factors including psychological intervention and vocational educational pursuits. Ms Czerkies is Mr Elomar’s treating psychologist and had seen him on about 16 occasions at the time of writing her report. She did, however, note that the treatment programme was disrupted due to COVID-19 and that this resulted in “a lack of consistency in contact”. Further, her intervention is part of the current supervision order and she will not be able to continue with the counselling in the absence of a further order.

48. Ms Czerkies agreed that Mr Elomar’s personal contact with and network of family and friends either involved with or associated violent extremism, politically motivated violence and terrorism remains his “most significant risk factor”. Ms Czerkies reported that Mr Elomar “continues to deny holding extremist religious beliefs that condone the use of violence to achieve religious goals” and has “accepted his current circumstances and is often described as compliant in his interactions with authorities despite his ongoing mistrust and belief that he is constantly being ‘set-up’”.

49. Dr Allnutt synthesised a number of relevant factors and concluded that “[o]verall, I place him in the low/moderate risk for future violent offending for the foreseeable future”. Dr Allnutt placed him in the “moderate/high-risk group for general offending”. Most significantly, Dr Allnutt was of the opinion that “he falls into a group whose risk is low/moderate for serious terrorism offence[s], a terrorist act and violent extremism”. Dr Allnutt noted the “high loading” of historical risk factors such as past violent offending and associations with people with extremist views, denoting a “longer-term predisposition to violent behaviour”. Against that, Dr Allnutt noted his improved insight, engagement with rehabilitation and treatment programs and family support. His intellectual disability is the most significant condition increasing his vulnerability to influence by other. Relevant to his “low/moderate” risk of committing acts of violent extremism Dr Allnutt said:

“There is insufficient evidence that he has forcibly or voluntarily participated in violent acts or behaviour related to extremist beliefs, despite his possible idealisation of other family members who had in the past (other than possibly the protest in Hyde park). There is no evidence that he currently feels obligated to engage in extremist or violent behaviour to achieve status.

The most important things in his life reported by him were his family, to some degree his religion and his work.”

50. There is some evidence in the reports that the imposition of further period of supervision may be counterproductive in the sense that it may cause resentment or interfere with some of the positive or protective factors such as Mr Elomar’s employment. For example, Ms Dewson says “there is a risk that a further period of supervision could fatigue Mr Elomar, resulting in grievances towards individuals and organisations/establishments”. Dr Allnutt says, in a balanced and enigmatic sentence, “the potential protective effects of an ESO need to be considered, along with the limitations that an ongoing ESO may place on his capacity to develop psychosocially in areas such as occupation and, possibly, more prosocial contacts”.

50. I have considered the earlier reports, largely in summary form. In particular, I have taken into account those prepared for, or tendered in, the earlier ESO application in 2018 including a substantial report by Professor Stephen Woods, a forensic psychologist. A comparison between the circumstances prevailing in 2018 and those that exist now, demonstrates that the risk factors have diminished significantly, and the protective factors have increased. The significant diminution in the assessment of risk in the more recent expert reports reflects this.

Level of the offender’s compliance with the earlier ESO and on parole – s 25(3)(i)

52. The State suggests that Mr Elomar “may not have been entirely compliant with his obligations on parole” based on the fact that he was convicted of intimidation in 2017 after allegedly threatening a supporter at an under-16’s soccer match in which his son was playing, whilst on parole. Those convictions were overturned on appeal. In the Local Court the victim gave evidence that Mr Elomar said “it’s lucky I’ve got this bracelet on, otherwise I’d kill you” but it “wasn’t said in an angry voice or aggressively”. His Honour Acting Judge Delaney found that the conduct did not fall within the definition of intimidation. I give this conduct some, but not very much weight in the overall assessment of risk. It was a minor incident with nothing to do with religious or political extremism.

53. The State concedes that Mr Elomar has “generally been of good behaviour while subjected to the [previous] ESO”. It refers to three matters which it concedes should only be afforded minor weight. Those matters include a comment to officers from the Terrorism High Risk Offenders Unit that “if you want to kill someone you should do it overseas not here”, a heated argument following a road rage incident and calling police officers “dogs”, a comment for which he later apologised.

54. In addition to his associations and susceptibility to risk, the State relies on alleged breaches of the previous ESO to prove that Mr Elomar poses an unacceptable risk of committing a serious terrorism offence. Mr Elomar was charged with two counts of breaching the ISO in 2018 and nine counts of breaching the previous ESO in 2019. All 11 charges were dismissed.

55. The State relies on the circumstances underlying the first count in relation to the breaches in 2018, where it was alleged that Mr Elomar failed to comply with his ESO by not truthfully answering questions from his enforcement officer about what he was doing. Mr Elomar had requested permission to fill up his car at a BP petrol station that was not an approved location. He was given permission to fill up petrol but was advised not to be longer that 10 minutes. Electronic monitoring detected that Mr Elomar was still at the petrol station 40 minutes later. When he was called, Mr Elomar said that he had been waiting for the radiator to cool down as he had an old car and that he was leaving now. CCTV footage later obtained, showed Mr Elomar having a conversation with another male by the name of Mohamad Hijzai. The reasons as to why this charge was dismissed is not before the Court.

56. In relation to the second set of charges in 2019, the State relies on Mr Elomar’s alleged conduct of deleting his internet history after accessing a number of “western-produced documentaries” about ISIS on YouTube, A Current Affair video called “Ahmed Elomar – Is he public enemy number one?” and a number of Australian news articles relating to terrorism. It submits this conduct demonstrates an ongoing interest in issues indicative of a an “extremist Islamic world view”.

57. The State also relies on the charges relating to communication with Mr Barez as evidence of that association, a matter dealt with above at [36].

58. The State submits that the alleged conduct is relevant to the current assessment of risk, notwithstanding the dismissal of the charges. Reference was made to the comments by Harrison J in State of NSW v Tiggelen [2018] NSWSC 1399 at [102] concerning the Crimes (High Risk Offenders) Act 2006 (NSW):

“The Court can consider any alleged criminal conduct even if that conduct has not resulted in a conviction for any offence in the evaluative task under s 5B(d): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124] per Adamson J; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14] per R A Hulme J.”

59. It is true that a different standard of proof is to be applied in the current proceedings.

60. Noman SC DCJ was called on to decide if each of the elements was established beyond reasonable doubt. In making the judgments and findings required for the purpose of making an order under the Act, the State is not required to prove any particular matter to the criminal standard. What is required is for the combination of matters established by the evidence to persuade the Court to “a high degree of probability” that the offender poses an unacceptable risk: s 20(d) of the Act. The Court must be satisfied of the existence of an unacceptable risk to a higher degree than would be the case if the normal civil standard of proof applied, although not to the criminal standard of beyond reasonable doubt: see Cornwell v Attorney General for NSW [2007] NSWCA 374 at [21], although I note the nature and content of the test has been considered in a number of subsequent cases decided in the Court of Appeal. The content and operation of that standard or test is now well established by past cases decided under the Act and other similar pieces of legislation. [6]

    6. See for example, Crimes (High Risk Offenders) Act 2006 (NSW), Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51]-[56] (Beazley P) and [132] (Basten JA), Cheema v State of New South Wales [2020] NSWCA 190, State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29]; State of New South Wales v Dickson (Final) [2020] NSWSC 100 at [34].

61. In dismissing the charges relevant to the conduct of deleting the internet history, her Honour Judge Noman SC found that “there [was] blunt evidence that data was deleted” but dismissed the charges on the basis that they were duplicitous as the prosecution did not allege a sole occasion on which the data was deleted. [7] In short, the evidence did establish that the searches subject of the breach offences were made and then deleted from the history of the device it was accessed on. However, I accept that his conduct amounted to a breach of the ESO, but acknowledge it was a rare breach in circumstances where Mr Elomar appears to have been generally very compliant with his obligations.

    7. R v Ahmed Elomar (unreported, District Court of NSW, Noman SC DCJ, 10 February 2021).

62. The State also asks the Court to draw an inference that the alleged conduct may be evidence of an ongoing interest “in the same sort of issues that might be of particular interest to those with an extremist Islamic worldview” or alternatively the conduct may suggest that Mr Elomar is more susceptible to influence from persons who hold such views. I am unable to accept that such an inference can be drawn. The conduct, at its highest, suggests that Mr Elomar has a continuing interest in the portrayal of terrorism, and the conflict in Syria, in the Western media. This is not a case of someone searching the internet for opinions and ideas that confirm an extremist worldview, rather Mr Elomar sought out news from mainstream media.

Reports of relevant authorities as to whether Mr Elomar can be reasonably and practicably managed in the community – s 25(3)(d) and (e)

63. A risk management report was prepared by Kimberley Rambaud on behalf of the Commissioner of Corrective Services NSW and was endorsed by Mr Bagley. The report states that Mr Elomar’s response to Community Corrections’ supervision has been “largely positive”. It notes that Mr Elomar has made positive progress through education and employment. In particular he has formed new connections in the community through undertaking studies in the fitness industry.

64. In that report Mr Elomar is assessed as a moderate risk of “violent extremist behaviours” using the VERA-2R. The only identified risk factor of concern is Mr Elomar’s “susceptibility to influence of [peers aligned with ideologies consistent with violent extremism] in the assisting, planning and organising of a terrorist act”. However, it is noted that Mr Elomar does not currently condone or espouse any commitment to violent extremism himself, nor did he present as having any interest in committing any act of violent extremism. In contrast, Mr Elomar presented as having positive attitudes towards Australia, the Government and the opportunities he has in this country.

65. The report proposes a “risk mitigation plan” should he receive a supervised order which includes weekly face to face meetings with an enforcement officer and monthly home visits focussed on encouraging and “supporting a pro-social lifestyle, emotional regulation, goal setting and impulsivity management”.

Treatment and rehabilitation programs and Mr Elomar’s participation in these programs and initiatives – s 25(3)(f) and (g)

66. Mr Elomar has willingly participated in a number of programs and engaged in counselling with Ms Czerkies. For example, Mr Elomar has engaged in psychological intervention programs specific to countering violent extremism and participated in community-based programs, including the Engagement and Support Program. During Mr Elomar’s sessions with Ms Czerkies as part of the Engagement and Support Program, they have devised (collaboratively) a psychology intervention plan. Ms Czerkies noted that not only had Mr Elomar contributed to the development of the plan, suggesting individual treatment targets relating to his interpersonal functioning and social awareness, he had also been fully compliant with that plan to date.

67. The evidence suggests that Mr Elomar’s engagement with counselling services and recommended treatment plans have had a positive impact and that he has gained a greater understanding and insight into the triggers and risk factors that impact on his behaviour.

68. I have also considered the fact that the support Mr Elomar currently receives from Ms Czerkies is offered by Corrective Services NSW and only to offenders who are subject to supervision pursuant to an ESO (or similar orders). These services, which provide for the intense monitoring and oversight of high-risk offenders, will not be available to Mr Elomar if he is no longer subject to an ESO. In cross-examination, Ms Czerkies suggested, however, that there are “practitioners in the community who have some experience in working with people who have been identified as at risk of committing offences of politically motivated violence, violent extremism or terrorism”. Mr Elomar would not receive the same intensive case management that he currently receives from “Praxis” – the specialised psychology unit located within the THRO Unit.

69. I accept, as acknowledged by Ms Czerkies, that Mr Elomar has expressed an interest in participating in disengagement programs and counselling whether he is in custody or in the community, and has demonstrated a proactive approach and willingness to engage with psychological assistance to date.

The likelihood that Mr Elomar would comply with the conditions of an ESO – s 25(3)(h)

70. Mr Elomar has expressed some disquiet as to the strictures of the ESO and, as has been observed, there have been some allegations of relatively serious breaches of the ESO (see above at [52]-[57]). However, on the whole he has been compliant. I am satisfied that he would continue to comply with the conditions of any ESO imposed on him, in spite of resentment to the infringement of his freedom and the privacy of his family.

Other information as to the likelihood Mr Elomar will commit a serious terrorism offence – s 25(3)(m)

71. Mr Elomar tendered a number of affidavits relevant to an assessment of whether he poses an unacceptable risk of committing a serious terrorism offence if he is freed from the strictures of the supervision order.

72. John Lewis OAM is a retired boxing trainer. He has known Mr Elomar for over 20 years. He speaks of him as “one of the most respectful and genuine young men [he has] come across in the boxing scene”. Mr Lewis spoke of Mr Elomar’s future plans including his desire to get back into boxing and establish and maintain a successful horse stud farm, breeding and training horses. Mr Lewis views Mr Elomar’s plans to return to boxing specifically, as a positive thing as it will provide discipline in his life and promote a healthy lifestyle. Mr Lewis is retired but intends to help Mr Elomar get back into boxing training and provide his advice and guidance.

73. Mari-Luise Agius knows Mr Elomar through boxing and personal training and also spoke of Mr Elomar as being a “gentle, respectful and courteous man”.

74. Adam Payne runs the gym where Mr Elomar trains and has recently taken up a position as a “trainee trainer”. Mr Payne has met the defendant’s family at horse shows and family barbeques. He is positive about Mr Elomar’s future in training and the fitness industry and says that he is well-liked at the gym and has the ability to connect with people from all walks of life. Mr Payne also considers the defendant’s involvement with horses to be a positive aspect of his life.

75. Ahmad Merhi is a director of a community-based organisation catering for Islamic religious festivities. Mr Merhi knows Mr Elomar as a neighbour and through their mutual interest in the Arabian stallion and horse industry. He speaks of the defendants “character and compassion for others, including animals”. Mr Merhi says that Mr Elomar has a special skill with horses and in helping children and adults learn to ride. He says the defendant has told him that he intends to limit his associations and that he has a “positive attitude towards life moving forward”. He confirms other evidence of Mr Elomar’s success in breeding and training horses and notes that Mr Elomar trained an Arabian horse which won third place in the recent East Coast Arabian Championships. Mr Merhi appears to be a distinguished member of the community and is keen to assist the defendant in maintaining a positive lifestyle in the future.

76. Dr Jamal Rifi AM is the defendant’s General Practitioner and has known Mr Elomar on a personal basis for over 10 years. While he provided a positive testimonial, there is no evidence that he has arranged any ongoing counselling or therapy for Mr Elomar. However, Dr Rifi notes Mr Elomar’s stated intention to provide a positive role model for his six children and says that he is “now focussed on [living] a trouble-free life”. Dr Rifi recommends that Mr Elomar spend more time with his horses “as a form of therapy”.

77. Dixie Scaife-Elliott is a friend of the defendant through their mutual interest in horse breeding and training. Her letter is extremely positive and optimistic about the defendant’s future. Ms Scaife-Elliott says that Mr Elomar’s “enthusiasm for Arabian horses is rapidly bringing him friendships and respect within the industry” and introducing him to people who share his passion for horses and can “keep him grounded in everyday life”. Ms Scaife-Elliott is an example of the kind of positive role model and influence who will reduce the likelihood that the defendant will become involved in violent extremism.

78. Matthew Blair provides a similar letter and is another associate that Mr Elomar has come to know through his love of horses. He says:

“Seeing Ahmed around his loving family and genuine friends I truly feel confident that the Ahmed I know is a mature person of sense and reason with a strong desire to move on and enjoy the benefits of a life of peace, happiness and honest hard work.”

79. Elisha Grounds is yet another friend and associate of the defendant who knows him through the horse industry. Again, Ms Grounds’ affidavit is positive and optimistic about Mr Elomar’s future. In particular, she comments that Mr Elomar is “a very talented horseman who… has a positive future”.

80. Montaha Eid is an associate Mr Elomar met through the fitness industry. She speaks highly of Mr Elomar’s capacity as a personal trainer and as a person. Mr Elomar has also expressed his interest in boxing again to Ms Eid.

81. Joe Saba describes the defendant as his best friend and exercise partner. Mr Saba speaks of his qualities as a parent – “a worldly and deeply caring father” – and a lover of animals, particularly birds and horses.

82. Several of Mr Elomar’s close relatives provided affidavits. This included his mother, father, brother and wife. It seems that Mr Elomar’s family is very close and provide a stable and positive influence and are the core of his support network. A number of members of the family live on or near the father’s property. Some members of the family made complaints about the way in which the ESO operates indirectly to interfere with their lives. While these complaints are no doubt genuine, and while there may have been some unreasonable interference with the privacy of these third parties, this is the unfortunate consequence of the defendant’s prior offending and associations. Regrettably, it is a price that the family must pay to ensure the community is protected from the possibility of terrorism and a consequence of the requirement that community protection is the paramount consideration in the making of an supervision (or detention) order under this type of legislation.

83. Of greater concern are opinions provided by family members, echoed in some of the expert reports and evidence given at the hearing, that the strictures of the order may have an adverse impact on Mr Elomar’s rehabilitation in the sense that they interfere with his employment opportunities and capacity to maintain and increase his positive social network.

84. There is no doubt that the support and encouragement that the defendant receives from his wife and family, and his earnest desire to provide a stable and safe environment for his six children, is a primary motivator for him to remain out of trouble and disassociate from people who may have a negative impact on his life. The expert evidence generally supported this view although some difficulties of a personal nature in the relationship with his wife were noted.

85. Mr Elomar’s father, Mamdouh Elomar (“Mr Elomar Senior”), was cross-examined on his affidavit. It emerged that he was charged some years back with an offence of bribing a foreign official and received a gaol sentence. The bribe was made in the context of attempting to secure a business contract in Iraq. The connection of the offence to Iraq is a somewhat concerning fact, given that many foreign incursion offences involve Australians travelling to that country and neighbouring Syria to fight with ISIS. However, in spite of this earlier offence, I found Mr Elomar Senior to be a straightforward and convincing witness. I do not accept, as was put to him in cross-examination, that he tried to hide the earlier offence by not including it in his affidavit. In 2014, Mr Elomar Senior was commended in Commonwealth Parliament by the politician who now occupies the office of the Prime Minister. Mr Morrison, Member for Cook and then Minister for Immigration and Border Protection, described Mr Elomar Senior as a “brave and courageous” man who showed “strong community leadership”. Mr Morrison noted “that Mamdouh’s brother and son have both become those who have fallen into the terrorists’ snare and have advocated those horrible things” and that Mamdouh “has had to stand up to that”. While considerable caution should be adopted in acting on the things politicians say in Parliament, this snippet of the Hansard highlights the complexity of somebody living within a community where passionate political views are held about an area of the world subject of military conflict.

79. I accept that Mr Elomar Senior is a positive influence on his son and that he is genuine when he says he and the entire family will support the defendant in his path towards rehabilitation.

80. Three important documents tendered on behalf of the defendant emanate from the NSW Police Force.

81. The first (Exhibit 3) is an investigator’s note relating to the communications between Oussama Benbrika and the defendant relied on by the State as part of its case that the defendant is vulnerable to negative influence from associates with connections to terrorist groups and violent extremism. The note indicates that Mr Benbrika trains and deals in horses. The text messages between the men are described as “horse related”. One of the more underwhelming aspects of the State’s case concerns its reliance on an opinion provided by an expert Dr Shanahan’s that “[a]rchery and horses are of significance to jihadist groups”. The evidence establishes very clearly that Mr Elomar’s interest in horses is genuine and there is nothing that can rationally connect it Islamic extremism.

82. The second (Exhibit 2) is an investigator’s note comprising a transcript of a body worn video of a conversation on 5 April 2021 between Senior Constable Heleta and Mr Elomar. Mr Elomar refers to contact he has had with people with whom he should not associate, because of their connections with terrorism and violent extremism. Mr Elomar is recorded as saying:

“Let’s say the people on my non association list like Mazen TOUMA, I don’t give two fucks about him. Mohammed HOWCHA, just a hi and bye, his brother is married to my cousin.”

90. The conversation goes on:

“SC HELETA: We have been through this before, obviously family members you can’t get rid of and this ISO or ESO is not designed to be with you forever. The responsibility is up to you at the end of the day.

ELOMAR said: ‘I feel like it is, I don’t know why. I can understand where they come from, maybe stuff I have said over the phone, stupid things but I never said, ‘Let’s go attack this or lets blow up this’, I would never say any of that shit. Let’s say if someone wants to do something here is a fucking dog, I’ll jump on his head because anyone can be there. In our religion you are not allowed to do that. I don’t know where they get that shit from but you can’t harm people.’

ELOMAR continued by stating that at no point did he support ISIS or his brother Mohammed’s actions however stated that he loves him because he is his brother.”

91. The third document (Tab 26 of Exhibit A) is an email from a homicide detective to the defendant’s solicitor. It concerns the defendant’s cooperation and assistance in the investigation into the murder of his nephew. The detective says:

“Ahmed ELOMAR has assisted with family members cooperating with investigators in providing such statements and forensic procedures. This has created a positive working relationship between the ELOMAR Family and the Homicide Squad.”

Consideration and finding as to the degree of risk

92. I have taken into account the matters set out above and have considered the careful and comprehensive submissions made by counsel for the State.

93. The State’s case relies heavily on Mr Elomar’s susceptibility to influence by members of the Islamic community who hold extremist views or connections to terrorism and terrorist organisations. The expert evidence supports the State’s case that Mr Elomar’s cognitive deficit and personal traits (such as wanting to please others) do make him vulnerable to such influences. The case is also dependant on Mr Elomar’s close family and personal connections to people convicted of terrorism offences, or to people who police and intelligence agencies know, or suspect, are sympathetic or supportive of groups involved in radical Islamic politics. There is evidence that Mr Elomar’s index offence arose in a context that betrayed an association with such groups and ideas. His action in wounding a police officer by striking him with a makeshift weapon showed a capacity to inflict violence in a political context. Similarly, his criminal history demonstrates a propensity to violence and a difficulty with impulse control and anger management.

94. The evidence shows that Mr Elomar has become very conscious of the problems that can arise as a result of associations with people connected to violent extremism and radical Islamic ideas. He has actively avoided such contact and sought the advice of those administering the ESO to which he was subject to two years.

95. Some of the connections relied on by the State are, in my assessment, tenuous. It must be recognised that the Muslim community in Australia, like the community more generally, is diverse and people hold vastly different political views. It is inevitable that people will come into contact with those who hold radical and even dangerous ideas. In Mr Elomar’s case, he has family members (such as his uncle) who have committed terrorism offences or foreign incursion offences. But there is no convincing evidence that Mr Elomar is under the influence of these family members. His uncle is serving a lengthy gaol sentence and there is nothing to suggest that he has any influence over the defendant.

96. During the period of Mr Elomar’s ESO he has either been living or in frequent communication with members of his immediate and extended family who provided support to him in the past and will continue to do so. Mr Elomar has matured considerably since he committed the index offence and his behaviour on the ESO has largely been compliant, if not exemplary. He has a stable, if somewhat troubled, marriage and a family who supports his efforts to assimilate into the wider community. Mr Elomar has demonstrated a commitment to seeking professional help and the assistance of counsellors. Mr Elomar has been focussed on his future, his family and self-improvement while he has been subject to the strictures of the ESO. To this end, he has completed vocational training and is now qualified and employed as a fitness trainer and appears to be a welcome addition to his local fitness community.

97. Through his involvement in the horse industry, he has developed a network of positive peers and influences outside of the Islamic community. He has a keen interest in training and breeding horses and his passion these activities has had a positive impact on his livelihood and personal development.

98. All of these matters have led to a significant change in the expert opinion evidence as to the degree of risk Mr Elomar poses to the community. The experts generally agree that his risk of committing an offence involving violent extremism or terrorism is low to moderate. I too consider the risk to be low.

99. Against that assessment of risk or probability, I have considered the nature of any offence that Mr Elomar might commit if the risk manifests itself. It is extremely unlikely that Mr Elomar would himself commit a terrorist act; he has never committed any such act and has not expressed any view that suggests he has any interest in doing so. The facts suggest the opposite. The risk is that he would be used by sinister forces in some facilitative role. I accept the consequences of this are potentially very grave but, in attempting to predict the possible outcomes, Mr Elomar is unlikely to have any direct involvement in planning or organising such an act.

100. I have taken into account the protection of the community as the paramount consideration at every step of my reasoning and assessment.

101. Having considered all of the evidence, the opinions of the various experts, Mr Elomar’s connections and influences, his history of violence and compliance with the ESO, the submissions of the parties, along with all other relevant considerations, I am not satisfied to a high degree of probability that Mr Elomar poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

Disposition

102. For those reasons the summons and application for an ESO must be dismissed.

103. Accordingly, the Court makes orders:

1. The summons is dismissed.

2. The application for an extended supervision order is dismissed.

3. The interim supervision order made on 9 April 2021 and otherwise due to expire on 23 April 2021 is revoked.

**********

Endnotes

Amendments

03 May 2021 - Typographical errors amended in [85].

Decision last updated: 03 May 2021