State of New South Wales v Fayad (Preliminary) - [2020] NSWSC 1681

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681
Hearing dates: 19 November 2020
Date of orders: 25 November 2020
Decision date: 25 November 2020
Jurisdiction: Common Law
Before: Johnson J
Decision:
Refer to [292] of this judgment.

Catchwords:
HIGH RISK TERRORISM OFFENDER - preliminary hearing - whether interim supervision order (“ISO”) should be made - whether psychiatrist and psychologist should be appointed to examine Defendant - “convicted NSW terrorism activity offender” - Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism - Defendant serving full sentence of imprisonment for seven years for non-terrorist offences - Defendant disengaged from PRISM program - parole refused - held relevant risk of commission of serious terrorism offence established - ISO granted subject to conditions - order made for psychiatric and psychological examination by court-appointed experts

Legislation Cited:
Community Protection Legislation Amendment Act 2018
Crimes (Administration of Sentences) Act 1999
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Code (Cth)
Evidence Act 1995
Terrorism (High Risk Offenders) Act 2017

Cases Cited:
Ainsworth v Burden [2005] NSWCA 174
Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231
Atai v R [2020] NSWCCA 302
Cheema v State of New South Wales [2020] NSWCA 190
Fayad v R [2017] NSWCCA 81
Lawrence v State of New South Wales [2020] NSWCA 248
Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121
Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360
R v Alqudsi [2016] NSWSC 1227
R v Biber [2018] NSWSC 535
R v Musleh (No. 5) [2018] NSWSC 1927
R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856
State of New South Wales v Ceissman [2018] NSWSC 508
State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876
State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008
State of New South Wales v Elmir (Final) [2019] NSWSC 1867
State of New South Wales v Osman [2020] NSWSC 1646
State of NSW v Alam [2020] NSWSC 295
State of NSW v Elomar (No. 2) [2018] NSWSC 1034
State of NSW v Elzamtur [2019] NSWSC 186
State of NSW v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328
State of NSW v Naaman (No. 2) [2018] NSWSC 1329
State of NSW v Sturgeon [2019] NSWSC 559
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Texts Cited:
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Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Wassim Fayad (Defendant)
Representation:
Counsel:
Mr J Emmett SC; Ms C Palmer; Mr A Mykkeltvedt (Plaintiff)
Mr S Prince SC: Dr J Lucy
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2020/288820
Publication restriction: ---

Judgment

JOHNSON J: By Summons filed on 7 October 2020, the Plaintiff, the State of New South Wales, seeks orders under the Terrorism (High Risk Offenders) Act 2017 (“THRO Act”) with respect to the Defendant, Wassim Fayad (formerly known as Fadi Alameddine).
The initial relief sought by the Plaintiff involves the appointment under s.24(5) THRO Act of a psychiatrist and a psychologist to conduct separate psychiatric and psychological examinations of the Defendant together with an interim supervision order (“ISO”) for a period of 28 days subject to conditions pursuant to ss.27-29 THRO Act.
An element of urgency surrounded the proceedings as the Defendant’s current sentence is to expire by effluxion of time on 28 November 2020.

The Preliminary Hearing

The Court undertook a preliminary hearing of the Summons on 19 November 2020. Mr James Emmett SC appeared for the Plaintiff with Ms Claire Palmer and Mr Anders Mykkeltvedt of counsel. Mr Shane Prince SC and Dr Juliet Lucy of counsel appeared for the Defendant.
An extensive list of objections by the Defendant to the Plaintiff’s evidence (MFI4) had been provided to the Court in advance of the hearing. Senior counsel for the Defendant informed the Court that, subject to one area, to which I will return, the Defendant did not object to the Plaintiff’s evidence for the purpose of the preliminary hearing, but invited the Court to have regard to the Defendant’s objections when assessing the weight to be given to evidence.
On this basis, a substantial volume of documentary material was tendered at the preliminary hearing.
Contained within a folder (Exhibit A) were the following affidavits and reports tendered by the Plaintiff:

affidavit of Amay Tembe, solicitor, affirmed 10 September 2020;

further affidavit of Mr Tembe affirmed 8 October 2020;

further affidavit of Mr Tembe affirmed 28 October 2020;

further affidavit of Mr Tembe affirmed 11 November 2020;

further affidavit of Mr Tembe affirmed 18 November 2020;

affidavit of Senior Constable Danny El Helou sworn 14 September 2020;

affidavit of Detective Sergeant Matthew Schenke sworn 14 October 2020;

affidavit of Stuart Lyle, Manager of Security at High Risk Management Correctional Centre Goulburn (“HRMCC”) affirmed 14 October 2020;

affidavit of Renee Craft, Manager of Security, Custodial Corrections, Corrective Services NSW affirmed 22 October 2020;

affidavit of Detective Sergeant Kate James sworn 27 October 2020;

report of Dr Mariam Farida dated 22 September 2020 - Dr Farida is a Middle East expert whose work focuses on recruitment, mobilisation and ideology;

risk assessment reported dated 28 September 2020 of Chelsey Dewson, forensic psychologist;

affidavit of Ms Dewson affirmed 4 November 2020;

supplementary risk assessment report of Ms Dewson dated 11 November 2020.

Also tendered by the Plaintiff were:

three volumes of documents which were Exhibit AT-1 to Mr Tembe’s affidavit of 8 October 2020 (Exhibit AT-1);

one volume of documents which was Exhibit AT-2 to Mr Tembe’s affidavit of 28 October 2020 (Exhibit AT-2);

two volumes of documents which were Exhibit AT-3 to Mr Tembe’s affidavit of 28 October 2020 (Exhibit AT-3);

one volume of documents which was Exhibit AT-4 to Mr Tembe’s affidavit of 11 November 2020 (Exhibit AT-4); and

one volume of documents which was Exhibit KJ-1 to the affidavit of Detective Sergeant James dated 27 October 2020 (Exhibit KJ-1).

The Plaintiff also tendered a USB stick containing footage of a visit by several persons to the Defendant at the Goulburn Correctional Centre on 2 November 2014 (Exhibit B). The parties agreed that it was not necessary for the Court to view the recording (about two hours and 30 minutes in length). Rather, an aide memoire was provided which summarised the images recorded (MFI2).
No evidence was adduced in the Defendant’s case at the preliminary hearing.
The Court had received detailed written submissions prepared by counsel for the Plaintiff and the Defendant in advance of the hearing.
Oral submissions were made by counsel by reference to the evidence at the conclusion of which the Court adjourned the hearing to 25 November 2020 for decision.
On 23 November 2020, with the consent of the Defendant, the Court was provided with a chronology of references to evidence made in the Plaintiff’s oral submissions (MFI5). This document was provided as a result of comments made by me in the course of the hearing on 19 November 2020. The document has assisted the Court in preparation of this judgment.
The areas of dispute indicated in the Defendant’s written submissions were narrowed considerably in amended submissions furnished before the hearing. A number of concessions were made by the Defendant for the purpose of the preliminary hearing.
Although it remains a matter for the Court to determine whether the criteria under the THRO Act have been satisfied so as to make the orders sought at the preliminary hearing, I observe that the approach of the Defendant was both practical and well founded.

The THRO Act

Before moving to the circumstances of this case, it is appropriate to say something about the statutory scheme enacted by the THRO Act.
The THRO Act commenced on 6 December 2017 and has been amended most recently by the Community Protection Legislation Amendment Act 2018.
In the course of the second reading speech for the Terrorism (High Risk Offenders) Bill 2017 (“THRO Bill”) (Hansard, Legislative Assembly, 15 November 2017), the Attorney General, Mr Speakman, observed that the legislation would complement the Commonwealth’s post-sentence detention scheme for Commonwealth offenders (contained in Division 104 of the Criminal Code (Cth)) and that it “builds on structures in place for the New South Wales post-sentence supervision and detention framework for serious sex and violence offenders”.
In the second reading speech for the THRO Bill, the Attorney General said (Hansard, Legislative Assembly, 15 November 2017):

“The protection of the community from the ongoing threat of terrorism is of paramount importance to the New South Wales Government. We will do whatever we reasonably can to ensure law enforcement authorities have at their disposal effective powers to keep the community safe.”

In many (but not all) respects, the THRO Act is modelled upon the Crimes (High Risk Offenders) Act 2006. There are similarities and differences between the two statutes: Cheema v State of New South Wales [2020] NSWCA 190 at [10]-[11].
The protection of the community was emphasised again in the second reading speech of the Attorney General for the Community Protection Legislation Amendment Bill 2018 which amended the THRO Act in a manner which is significant for the present application (Hansard, Legislative Assembly, 13 November 2018).
Section 3 states the objects of the THRO Act:

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

Sections 10 and 11 are of particular significance to the present application. Section 10 relevantly provides:

“10    Convicted NSW terrorism activity offender
(1)    In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender:
…
(c)    the offender:
(i)    is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or
(ii)    has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.
(1A)    Without limiting subsection (1) (c):
(a)    advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following:
(i)    making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,
(ii)    using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,
(iii)    making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and
(b)    an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following:
(i)    networking or communicating with the person, group of persons or organisation,
(ii)    using social media sites or any other websites to communicate with the person, group of persons or organisation.
(2)    Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).
(3)    In this section:
terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.”

Section 11 provides as follows:

“11    Determining whether eligible offender is convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender
In determining whether an eligible offender is a convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender, the Supreme Court may take into account:
(a)    the views of the sentencing court at the time the offender was sentenced for the offender’s offence, and
(b)    the views of the sentencing court at the time a person other than the offender was sentenced for an offence if the person was a co-accused of the offender or was convicted of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit the offender’s offence, and
(c)    evidence adduced in the proceedings for the offender’s offence or in proceedings against another person for an offence referred to in paragraph (b), and
(d)    any relevant terrorism intelligence, and
(e) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in the State or elsewhere), and any pattern of offending behaviour disclosed by that history, and
(f)    the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the offender’s history of behaviour (including any patterns in, or the progression of, that behaviour to date), and
(g)    any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody), and
(h)    any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender’s associates and affiliations, and
(i)    information indicating that current or former associates of the offender have been or are involved in terrorism activities, and
(j)    any other information that the Court considers relevant.”

Section 27 relates to an application for an ISO:

“27 Interim supervision order
The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

Consideration of an application for an ISO under s.27(b) requires attention to be given to the criteria for making an extended supervision order (“ESO”) under s.20 THRO Act which provides:

“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.”

Section 21 provides for the determination of risk:

“21 Determination of risk
For the purposes of this Part, the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.”

As s.24(5) and s.27(b) require the Court at a preliminary hearing to consider the criteria for making an ESO, it is appropriate to note the terms of s.25 which states:

“25    Determination of application for extended supervision order
(1)    The Supreme Court may determine an application for an extended supervision order:
(a)    by making an extended supervision order, or
(b)    by dismissing the application.
(2)    In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
(3)    In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:
(a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender’s participation in any such examination,
(b)    the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(c)    the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence,
(d)    any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community,
(e)    any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community,
(f)    any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives,
(g)    options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,
(h)    the likelihood that the offender will comply with the obligations of an extended supervision order,
(i)    without limiting paragraph (h), the level of the offender’s compliance with any obligations to which the offender is or has been subject while:
(i)    on release on parole, or
(ii)    subject to a control order, or
(iii) subject to an earlier extended supervision order or interim supervision order, or
(iv)    subject to any other order of a court,
(j)    the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(k)    the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(l)    any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities,
(m)    any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.
(4)    In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

Section 24 concerns pretrial procedures, with s.24(5) containing the statutory test for ordering psychiatric and psychological examination of a person at a preliminary hearing as sought in this case. Section 24(5)-(7) provides as follows:

“24    Pre-trial procedures
…
(5)    If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:
(a)    appointing:
(i)    2 qualified psychiatrists, or
(ii)    2 registered psychologists, or
(iii)    1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b)    directing the eligible offender to attend those examinations.
(6)    Without limiting subsection (5) (a), the Supreme Court may also make orders appointing any other relevant experts to furnish reports to the Supreme Court in respect of the eligible offender on specified matters.
(7)    If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.”

Meaning of “Serious Terrorism Offence”

At the conclusion of the preliminary hearing, the Court must make orders under s.24(5) THRO Act for psychiatric and/or psychological examination of the Defendant if it is satisfied that the matters alleged in the supporting documentation (under s.23(3) THRO Act) would, if proved, justify the making of an ESO.
This directs attention to the test for making an ESO in s.20(d) THRO Act, namely that the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under the order. The Court is not required to determine that the risk of a person committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence: s.21 THRO Act.
Further, if it appears to the Court at the conclusion of the preliminary hearing that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, then an ISO may be made: s.27(b) THRO Act. Once again, this directs attention to the criteria for making an ESO in s.20(d) and s.21 THRO Act.
It is necessary to say something about the concept of “serious terrorism offence” which is a focal point for these steps.
The term “serious terrorism offence” is defined in s.4(1) THRO Act as follows:

“serious terrorism offence means an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment.”

As noted in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [80], the offences caught by the definition of “serious terrorism offence” extend to a wide range of conduct and include engaging in a terrorist act (s.101.1 Criminal Code (Cth), noting the extended definition of "terrorist act" in s.100.1); 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 terrorist 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 or participating in the activities of 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).
The term “terrorist act” is defined in s.100.1(1) Criminal Code (Cth):
In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44], Gummow and Crennan JJ considered the term “terrorist act” in the Criminal Code (Cth):

“What is a ‘terrorist act’? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of ‘terrorist act’. This was introduced by the 2003 Act. A ‘terrorist act’ is defined as ‘an action or threat of action’ which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of ‘advancing a political, religious or ideological cause’. Secondly, there must be an intention which is expressed in the alternative. The first alternative is ‘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’. The second is ‘intimidating the public or a section of the public’. The reference to ‘the public’ is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in sub-s (2) of s 100.1. Action falls outside the definition if it be ‘advocacy, protest, dissent or industrial action’ and is not intended to cause serious harm that is physical harm to a person, or a person’s death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (sub-s (3)).”

The Court of Appeal in State of NSW v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [16] described the definition of “terrorist act” in the Criminal Code (Cth) (as picked up in s.4 THRO Act) as being “broad”.
In considering the breadth of terrorism offences in the Criminal Code (Cth), emphasis has been placed upon the legislative policy underlying the creation of a range of preparatory offences which serve to criminalise conduct which would not be caught by the general law of criminal attempt. In Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121, Spigelman CJ (McClellan CJ at CL and Sully J agreeing) said (at [66]):

“Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.”

These principles have been emphasised and applied in later decisions. In Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, Barr J (at [211]) observed that ss.101.4, 101.5 and 101.6 Criminal Code (Cth) “make offensive acts of a preliminary nature falling short, some well short, of attempt”. In the same case, Price J emphasised (at [229]) that offences under ss.101.4, 101.5 and 101.6 are not crimes of attempt but “anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it”. Price J observed as well (at [242]) that acts done in preparation for, or planning, a terrorist act undoubtedly can embrace a wide range of conduct.
With regard to the insertion of s.10(1A) THRO Act, the Attorney General stated (Hansard, Legislative Assembly, 13 November 2018):

“[The amendment] will clarify the meaning of ‘advocating support’ ... for the purposes of determining whether a person is a ‘convicted NSW terrorism activity offender’… Clarification will be provided through inserting a non-limited list of examples of action that fall within the meaning of ‘advocating support for terrorist acts or violent extremism’ … [This amendment] will clarify that advocating support for terrorism activity or violent extremism is distinct from the actual commission of a terrorism offence. Advocating support for terrorism activity or violent extremism is an indicator of the potential risk posed by the offender. A determination of risk is made by the Supreme Court …”

The term “violent extremism” is not defined in the THRO Act. The term was added to s.10 by the Community Protection Legislation Amendment Act 2018. I accept the Plaintiff’s submission that the inclusion of the term “violent extremism” broadened s.10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of “terrorist act”: State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [34].
What can be seen then is that the broad range of conduct caught by serious terrorism offences in the Criminal Code (Cth) is widened further to include conduct falling within the definition of “convicted NSW terrorism activity offender”, as extended further since 2018 by the insertion of s.10(1A) THRO Act.

Principles to be Applied at Preliminary Hearing

The task for the Court at the preliminary hearing is to apply the statutory formula in s.24(5) (concerning the appointment of a psychiatrist and a psychologist to carry out examinations of the Defendant) and s.27(b) (concerning the making of an ISO).
Before making the orders sought by the Plaintiff, the Court must determine:

that the Defendant’s current custody or supervision will expire before the proceedings are determined: s.27(a); and

that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: ss.24(5) and 27(b).

In State of NSW v Naaman (No. 2), the Court of Appeal (Basten, Macfarlan and Leeming JJA) described the Court’s task at a preliminary hearing as follows (at [17]) (my emphasis):

“Broadly speaking, the Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order.”

This statutory interlocutory process exists in legislation intended to protect the community. A lower standard applies at a preliminary hearing to determine whether the application should proceed further where the Court will be assisted by expert psychiatric and psychological reports prepared after examination of the Defendant. At a final hearing, the Court will have the benefit of reports by court-appointed experts with the THRO Act provisions to be applied at that hearing by reference to all evidence adduced by the Plaintiff and the Defendant.
This approach does not overlook the potential adverse consequences for the Defendant if orders are made at the preliminary hearing. Rather, it reflects the statutory two-stage process where a lower hurdle applies at the interlocutory stage.
The Court looks at the allegations and documentation “through the lens of the plaintiff’s case” and takes them “at their highest when deciding whether the test articulated in section 27(b) THRO Act has been made good in all the circumstances of the case”: State of NSW v Naaman (No. 2) [2018] NSWSC 1329; State of NSW v Elzamtur [2019] NSWSC 186 at [4].
In undertaking the assessment at the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation: State of NSW v Sturgeon [2019] NSWSC 559 at [6].
It is necessary for the Plaintiff to allege certain facts which, if proved, would lead to a conclusion that would justify the making of an ESO: State of NSW v Elomar (No. 2) [2018] NSWSC 1034 at [7]-[10].
Section 27(b) THRO Act requires attention to be given to “the matters alleged in the supporting documentation”. A “matter alleged” should have some proper foundation and could not include matters of rumour, possibilities unfounded in fact or wholly unsupported speculation: State of NSW v Alam [2020] NSWSC 295 at [159].

The Defendant’s Approach at the Preliminary Hearing

As mentioned earlier, certain concessions were made by the Defendant for the purpose of the preliminary hearing.
It was conceded for the Defendant that a number of formal requirements under the THRO Act were satisfied in this case.
Senior counsel for the Defendant conceded that it was open to the Court, upon the evidence adduced at the preliminary hearing, to conclude that the Defendant was a “convicted NSW terrorism activity offender” for the purpose of s.10(1)(c)(ii) THRO Act by reference to his personal association with persons who were advocating support for any terrorist act or violent extremism.
The Defendant conceded, for the purposes of the preliminary hearing only, that he is a “convicted NSW terrorism offender” as defined in s.10(1)(c)(ii) when read with s.10(1A) THRO Act. This concession was made because the definition of association for the purposes of s.10(1)(c)(i) is extremely broad and, taking the Plaintiff’s case at its highest, the issue is whether it is established that the Defendant had the requisite knowledge of “the intention of the [associate] … to engage in the activities referred to in section 10(1)(c)(ii)” with this being a matter properly reserved for a final hearing.
However, the Defendant did not concede that he must be taken to have knowledge of the activities or statements of the relevant associates. Once again, for the purposes of the preliminary hearing, the Defendant accepts that he is “a convicted NSW terrorism activity offender” on the basis of having had association with some offenders who have been convicted of advocating support for terrorist acts or violent extremism.
It was also conceded for the Defendant that it would be open to the Court to draw an inference, from the totality of the views expressed by the Defendant, that he would endorse or approve of actions of Islamic State or like organisations if they were judged to be justified or allowed by Islamic scholars (paragraphs 87 and 103, Defendant’s Amended Written Submissions).
It was not conceded for the Defendant that he was a “convicted NSW terrorism activity offender” by operation of s.10(1)(c)(i) THRO Act by reason of him having made any statement advocating support for any terrorist act or violent extremism.
Although these concessions were made, it was submitted for the Defendant that the Court would not be satisfied that the prerequisites for the making of an ISO and an order for psychiatric and psychological examination had been established in accordance with s.20(d) and s.27(b) THRO Act.
It remains a matter for the Court to determine whether the necessary criteria under the THRO Act have been established or the purpose of making the orders sought by the Plaintiff at the preliminary hearing. The concessions made by the Defendant assist in narrowing the real issues in dispute at the preliminary hearing.
Before turning to the evidence, however, it is appropriate to address the one area of objection to evidence.

Objections to Judgments Under s.91 Evidence Act 1995

Contained with Exhibit AT-1 were a number of judgments including sentencing remarks in the following matters:

R v Alqudsi [2016] NSWSC 1227 (Adamson J);

R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 (Bellew J);

R v Biber [2018] NSWSC 535 (Adamson J); and

R v Musleh (No. 5) [2018] NSWSC 1927 (Adamson J).

When sentencing these persons, the sentencing Judge referred to evidence of association between that person and the Defendant and (in some cases) made findings concerning that association when sentencing the relevant offender.
The Plaintiff relied upon what was said in these sentencing remarks concerning the Defendant, with this being said to relate to his associations with persons who had been advocating support for any terrorist act or violent extremism for the purpose of s.10(1)(c)(ii) THRO Act.
Mr Prince SC objected to the admission of these judgments upon the basis of s.91 Evidence Act 1995. Mr Emmett SC submitted for the Plaintiff that s.91 Evidence Act 1995 did not stand in the way of the admission of these judgments at the preliminary hearing, but submitted as well that the judgments were admissible by application of provisions contained in the THRO Act.
It is not necessary to recite in greater detail submissions made with respect to the objection, with those submissions to be found in the transcript of the hearing (T21-37, 19 November 2020). At the conclusion of submissions, I said (T37, 19 November 2020):

“HIS HONOUR: I propose to admit the judgments to which objection has been taken. I will give reasons for that ruling in my judgment. The fact that they are admitted, of course, does not mean that submissions cannot be made about the weight to be attached to them and, in particular, to the judgment of Justice Bellew with respect to Mr Khalid.”

In determining to admit the sentencing remarks to which objection was taken, I was satisfied that each judgment had been supplied to the Plaintiff pursuant to a request under s.59(a) THRO Act, made on 18 September 2020 by the Solicitor General as delegate of the Attorney General for the State of New South Wales (Exhibit AT-4, pages 194-196). The affidavit of Mr Tembe affirmed 8 October 2020 confirms that material supplied to the Plaintiff as a result of requests under s.59 THRO Act included material supplied by the Supreme Court of New South Wales on 30 September 2020 and 2 October 2020 (paragraphs 19-26).
As the judgments in question were provided to the Attorney General under Part 5 of the THRO Act, the judgments are “admissible in proceedings under [the THRO] Act despite any Act or law to the contrary”: s.61 THRO Act. Section 50(2) THRO Act qualifies s.61 to an extent by stating that the fact that documents may be admissible by operation of s.61 “does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence”.
Accordingly, to the extent that s.91 Evidence Act 1995 may operate as a barrier to admissibility, the provisions of s.59 and s.61 THRO Act render the documents admissible in the present proceedings, subject to the operation of other evidentiary rules as specified in s.50(2) THRO Act.

In any event, there is a live question as to whether s.91 operates to exclude the judgments given the purpose for which they are tendered at the preliminary hearing. Section 91 Evidence Act 1995 provides:

“Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.”

The Plaintiff relied upon the decision of the Court of Appeal in Ainsworth v Burden [2005] NSWCA 174, where Hunt AJA (Handley and McColl JJA agreeing) said at [109]:

“It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose — as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false — they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act. In any event, the facts which the coversheets would have established were that a company associated with the plaintiff had made an application for a gaming licence, the police had objected to the grant of that licence, the terms of the grounds of objection, the rejection of the objection and the grant of the licence. None of the those facts was ‘a fact that was in issue’ in the Licensing Court proceedings, and s 91 did not exclude the coversheets stating those facts.”

It is pertinent to observe that nearly all the primary material contained in these judgments, to which objection is taken, is also to be found elsewhere in evidence admitted at the preliminary hearing. There are, however, further findings made in a number of the judgments which is additional to the primary material itself.
In R v Alqudsi, Adamson J referred (at [23]-[24], [32], [50] and [66]) to electronic communications between Hamdi Alqudsi (“Alqudsi”) and the Defendant which are summarised in her Honour’s judgment.
In R v Sulayman Khalid and Ors, Bellew J referred (at paragraph 88 of the Statement of Facts reproduced at [29] of the remarks) to a visit by Sulayman Khalid (“Khalid”) and others to the Defendant at Goulburn Correctional Centre on 2 November 2014. There is evidence of that visit found elsewhere in the evidence at the preliminary hearing, to which reference will be made later in this judgment.
A more controversial area is contained in Bellew J's sentencing remarks (at paragraph 75 of the Statement of Facts at [29]) where reference is made to a conversation between Khalid and IM which mentions the Defendant. This piece of evidence is capable of attracting the qualification contained in s.50(2) THRO Act in the circumstances of this case so as to limit the probative value which ought be attached to it. It was this aspect of Bellew J’s sentencing remarks which I noted in the short ruling given on 19 November 2020 (see [67] above).
In R v Biber, Adamson J refers to a text message from the Defendant to Alqudsi on 13 June 2013 (at [7]) and a recorded conversation between the Defendant and Alqudsi on 9 July 2013 (at [24]).
In R v Musleh (No. 5), Adamson J refers to the same text message from the Defendant to Alqudsi on 13 June 2013 (at [13]) and the intercepted telephone conversation between those two men on 9 July 2013 (at [37]). Her Honour referred further to the 9 July 2013 conversation in making findings (at [68]).
In the circumstances of this case, I was satisfied that the sentencing remarks to which objection was taken were admissible, but with limited weight being given to that part of Bellew J’s judgment where reference was made to a conversation between two persons in which the Defendant was allegedly named.
I note, for completeness, that Wright J considered the operation of s.91 Evidence Act 1995 in the context of the THRO Act in State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 at [16]-[25], in circumstances which were somewhat different to those in the present case. Nothing said by Wright J in that decision operates against the admission of the judgments to which objection was taken in the present case.

The Plaintiff’s Approach to the Application

Senior counsel for the Plaintiff submitted that there are two key questions on the present application:

Do the Defendant’s acts, if proved, render him a “convicted NSW terrorism activity offender” within the meaning of s.10(1)(c) THRO Act, specifically on the ground that:

(i) the Defendant has previously made any statement (or has previously carried out any activity) advocating support for any terrorist act or violent extremism, and/or

(ii) the Defendant 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?

If the matters alleged in the supporting documentation were proved, would the Court be satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision: s.27(b) and s.20(d) THRO Act?

The Plaintiff submitted that there were three matters that would, if proved, weigh very significantly in favour of a determination that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not subject to supervision following his release:

firstly, the Defendant has been the subject of credible allegations arising from events in 2013 and 2014 that he was involved in the recruitment of several young men to travel to Syria to fight for terrorist organisations;

secondly, prior to the 2013 index offence, the Defendant had been convicted of a whipping offence in 2011 which was said to have occurred in accordance with Islamic law in response to the victim’s alcohol and drug use - in this way, the Defendant demonstrated a propensity to deploy violence in pursuit of religious or ideological ends without regard for the criminal laws of this State;

thirdly, the Defendant has associated with a wide range of people who have been convicted of terrorism offences and/or who harbour extremist views.

In addition to these matters, the Plaintiff pointed to additional features of the Defendant’s history and conduct which supported the making of the orders sought at the preliminary hearing, including the following:

the Defendant has been the subject of a risk assessment report by Ms Dewson, forensic psychologist, which evaluated him as being a high risk of engaging in violent extremist behaviour (supplementary risk assessment report, 11 November 2020, paragraph 28);

the Defendant appears to harbour fundamentalist religious beliefs and rejects key aspects of Australian democratic society; and

the Defendant has disengaged totally from the Proactive Integrated Support Model (“PRISM”) program and his previous participation with PRISM is said to have been purely strategic.

Formal Requirements Under the THRO Act

I record my satisfaction that a number of formal requirements under the THRO Act have been met in this case.
Application for an ESO was made in accordance with Part 2 THRO Act and those procedural requirements have been met. The application has been made in respect of an eligible offender who is in custody whilst serving a sentence of imprisonment for a NSW indictable offence: s.23(1)(a). He is in the last 12 months of his current custody or supervision: s.23(2). The application is supported by documentation addressing the matters referred to in s.23(3) THRO Act, including a risk assessment report prepared by a registered psychologist which addresses the likelihood of the Defendant committing a serious terrorism offence.

The Defendant

The Defendant was born in Lebanon in 1967. He came to Australia with his family when he was two years old. The Defendant is an Australian citizen. He is of the Muslim faith.
The Defendant is married, but separated from his wife. There are six children of the marriage. The Defendant completed Year 10 at school and is a cabinet maker by trade. He has worked in the mining industry and performed labouring work and odd jobs over the years.
The Defendant had a limited criminal history until he was well into his 40s.

The Index Offence for Which the Defendant is Serving a Sentence

On 15 May 2013, the Defendant together with two co-offenders (one of whom was Milad Al-Ahmadzai (“Al-Ahmadzai”)) used two stolen vehicles to commit a ram-raid offence, crashing through the glass front doors of a shopping centre in the early hours of the morning. After driving through the doors, the three offenders attempted to drive one of the cars into several ATMs. They were not able to gain access to the cash stored in the ATMs, but they caused significant damage. After leaving the scene, the Defendant drove home in a motor vehicle registered to his son. In the course of that journey, he activated a speed camera.
The Defendant pleaded guilty to one count of aggravated (in company) break enter with intent to commit a serious indictable offence (steal) contrary to s.113(2) Crimes Act 1900, an offence punishable by imprisonment for 14 years.
The Defendant requested the sentencing Judge to take into account on sentence under s.32 Crimes (Sentencing Procedure) Act 1999 two further offences, being an offence of take and drive conveyance without consent of the owner contrary to s.154A(1)(a) Crimes Act 1900 and a wholly unrelated offence of being an accessory after the fact to assault with intent to rob with an offensive weapon causing grievous bodily harm, being an offence relating to a shooting at the Arrows Nightclub on 30 April 2013 to which reference will be made shortly.
On 27 November 2015, the Defendant was sentenced at the Parramatta District Court by her Honour Judge Woodburne SC to imprisonment for seven years commencing on 29 November 2013 with a non-parole period of four years and nine months expiring on 28 August 2018 and a balance of term of two years and three months expiring on 28 November 2020.
At the conclusion of the sentencing proceedings at the Parramatta District Court, the Defendant refused to stand when sentence was to be passed. Counsel appearing for the Defendant at the sentencing proceedings informed her Honour as to why the Defendant was not standing (sentencing remarks, 27 November 2015, page 31):

“[HER HONOUR]: Mr Fayad would you please stand whilst I impose sentence.
CARROLL: I don't believe he would, your Honour.
HER HONOUR: Beg your pardon?
CARROLL: I don't mean to be disrespectful but I don't believe he will, your Honour.
HER HONOUR: Is there a difficulty?
CARROLL: Well again, your Honour, it's a religious conviction. I don't wish to be the person who interferes with the process, but that's the situation. I'm only raising this so the sentencing process can be completed. He believes that as according to his religious instructions that it would be against his faith to do so. It's no personal situation, it's standing before any man.”

Her Honour proceeded to sentence the Defendant who did not stand for that purpose.

The Arrows Nightclub Offence

As noted earlier, the accessory after the fact offence with respect to the Arrows Nightclub shooting was taken into account when the Defendant was sentenced at the Parramatta District Court on 27 November 2015 for the ram-raid offence.
On 30 April 2013, a man was attacked by an unknown man and Al-Ahmadzai in the carpark of the Arrows Nightclub in Rydalmere, a sex-on premises venue. In the course of the attack, the victim was shot a number of times by the unknown male. The victim suffered life-threatening injuries in the attack, but survived.
Some time between the attack and 13 September 2013, the Defendant became aware of the offence. The Defendant informed Osama Toffic (“Toffic”) (who was suspected of being the unknown shooter) that he should leave the country because he was going to be arrested.
On 16 November 2013, Toffic was arrested at the airport whilst attempting to leave the country.
On 29 November 2013, the Defendant was arrested for the ram-raid offence and in relation to being an accessory after the fact to the shooting at the Arrows Nightclub. He was refused bail and has been in custody continuously since that date.

Appeal to the Court of Criminal Appeal

On 28 April 2017, the Court of Criminal Appeal (N Adams J, Simpson JA and Button J agreeing) dismissed the Defendant’s sentence appeal with respect to the ram-raid offence: Fayad v R [2017] NSWCCA 81.

The Whipping Offence

On 28 February 2013, the Defendant (in the name of Fred Toufuc Alameddine) was convicted at the Burwood Local Court of offences (committed on 16 July 2011) of assault occasioning actual bodily harm in company contrary to s.59(2) Crimes Act 1900 and stealing from a dwelling house contrary to s.148 Crimes Act 1900. That matter concerned the lashing of a man 40 times with a cable who had come to the Defendant for guidance in adhering to his religious faith. The Defendant lashed the victim, purportedly in accordance with Islamic law in response to the victim’s alcohol and drug use.
The sentencing proceedings for the whipping offence were adjourned to 24 June 2013. It was during this period, and whilst the Defendant was subject to bail, that the ram-raid offence was committed.
On 14 June 2013, the Defendant was sentenced at the Burwood Local Court to a total term of imprisonment for two years with a non-parole period of 16 months for the offences of assault occasioning actual bodily harm in company and stealing from a dwelling house. He appealed to the District Court against conviction and sentence and was released on appeal bail on 24 June 2013.
During this period of bail, the Defendant committed the accessory after the fact offence relating to the Arrows Nightclub shooting. As noted earlier, the Defendant was arrested on 29 November 2013 for the ram-raid offence and also the accessory after the fact offence and remained in custody thereafter.
On 14 February 2014, the Defendant’s appeal against conviction and sentence with respect to the whipping offence was heard by his Honour Judge Bennett SC at the Sydney District Court. The appeal against conviction was upheld on the stealing from a dwelling house offence, but dismissed on the charge of assault occasioning actual bodily harm. The sentence appeal was successful. In lieu of the sentence imposed in the Local Court, the Defendant was sentenced for the whipping offence to imprisonment for two years which was suspended pursuant to s.12 Crimes (Sentencing Procedure) Act 1999. Of course, the Defendant was not released from custody at that time because he remained bail refused in relation to the other offences.

Refusal of Parole

The Defendant became eligible for parole on 28 August 2018. He has not been released to parole.
On 11 December 2018, the State Parole Authority determined that the Defendant is a “terrorism-related offender” for the purposes of Division 3A of Part 6 Crimes (Administration of Sentences) Act 1999 and decided that it could not be satisfied that the Defendant would not engage in or incite or assist others to engage in terrorist acts or violent extremism for the purpose of s.159C(1)(a) of that Act.
Accordingly, the State Parole Authority was obliged to refuse the Defendant parole.

The Evidence Concerning the Defendant in Chronological Order

It is appropriate to set out, in chronological order, acts and statements of the Defendant which emerged from the evidence which are relevant to the risk assessment process to be undertaken at the preliminary hearing under the THRO Act.
It is appropriate to consider the evidentiary picture as a whole and not in a fragmented way. I adopted this approach in State of New South Wales v Cheema (Preliminary) at [160]-[162]:

“160 I have mentioned earlier the Plaintiff’s submissions which invited an assessment of the Defendant’s acts and words at various times in a cumulative and non-piecemeal fashion. That approach is correct in assessing the evidence adduced at the preliminary hearing under the THRO Act.
161 It is important not to consider the different pieces of evidence relied upon by the Plaintiff concerning the acts and thought processes of the Defendant in a piecemeal fashion. Like a circumstantial case in a criminal trial, it is necessary to consider the totality of the evidence concerning acts or statements of the Defendant which may shed light upon his thought processes in areas relevant to risk assessment for the purpose of the THRO Act: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46], [48]; The Queen v Baden-Clay (2016) 258 CLR 308: [2016] HCA 35 at [47].
162 Other matters identified in the evidence should be taken into account, as part of the total mosaic of evidence, in determining what inferences should be drawn from the evidence for the purpose of the preliminary hearing. An issue for consideration is not only what the Defendant was doing at different times, but also why he was doing these things. What did his actions indicate concerning his state of mind in the areas of terrorism and violent extremism? This goes to the heart of the process of risk assessment required under the THRO Act.”

Similar reasoning applies to the Court’s task with respect to the Defendant. Mr Prince SC submitted that it remained important to consider the nature and strength of the evidence concerning the individual parts of the factual mosaic. Whilst noting the limited task of the Court at a preliminary hearing, I have considered the nature of the individual pieces of evidence. A great many of them are not contested. The Defendant’s interaction with a range of persons over several years and the context of that interaction, forms an important part of the Court’s function at the preliminary hearing.

The Defendant’s Criminal History

The Defendant has a limited criminal history which includes matters in the Children’s Court (in 1983 and 1984). His adult criminal history includes a fine for offensive behaviour (1987), a fine and disqualification for driving whilst licence cancelled (1998), fines and periods of disqualification for driving whilst disqualified (1999, 2000 and 2001) and fines for conducting a security activity without a licence, giving a false name and false address and using a false instrument (2002).
Thereafter, the Defendant’s criminal history comprises the matters referred to earlier - the offences arising from the whipping incident (committed on 17 July 2011) and the ram-raid offence and Form 1 offences committed in 2013.

The Whipping Offence in 2011

Between about 11.30 pm on 16 July and 2.00 am on 17 July 2011, the Defendant attended the victim's house with three other men.
At about 9.18 pm that evening, Zakaryah Raad (“Raad”), sent the Defendant a text message stating “Allam, the Shana bring the right material. It's important”. Further text messages were exchanged where reference was made to an extension cord in the context of the “right material”. Telephone calls between Raad and the Defendant followed. These discussions made reference to the appropriate number of lashes “being in the vicinity of about 40”.
On the victim's account, the Defendant told the victim “that under Islamic law I was going to get lashed 40 times and for me getting lashed I was going to remember never to drink or take drugs again”.
The other men held the victim down while the Defendant lashed him with a co-axial electrical cable made into loops. The victim received 40 lashes. The Defendant counted out the lashes and allowed the victim breaks between each sequence of 10 lashes. The victim's evidence was that he consented to the first, 11th and 21st lashes, but withdrew his consent and begged the Defendant to stop.

The victim asked the Defendant to contact a sheikh, to check whether the punishment was warranted. One of the Defendant’s co-offenders used a mobile phone to make a call before saying something to the Defendant to the effect that the ordinary punishment was 80 lashes and that only sick or infirm people receive 40 lashes.
When the victim begged the Defendant to stop, the Defendant told him he loved him and wanted him to be a good person and the way that he was going, he (the victim) was ruining his life. The Defendant cut down the number of loops on the whip to lessen the blows.
The victim suffered severe bruising as a result of the whipping.
The Defendant later stated that his actions were “justified” on the basis of his religious beliefs and were part of a “counselling process” to help the victim through his addiction.
During the hearing in the Local Court, a statement of Sheik Omar El Banna, the Imam of the Omar Mosque, was tendered. That statement included the following:

"... [the victim] said words to the effect of- 'I have been purified, they applied the Sharia Ruling on me. Is it right to apply the Sharia law to me?'
I said ... 'This is ridiculous. You can't apply this ruling, this is wrong. This isn't what should be happening’.
As scholars of Islam from the Imams' Council, we made a press release in relation to this stating that the actions taken by the males involved were not sanctioned by the community in any way. Furthermore, it is my belief and the belief of the community that their actions were not authorised by any Imams or religious leaders.”

Local Court Magistrate Maloney found the offence proven, on the basis that any consent by the victim was not informed consent and was withdrawn in any event. In the course of his Honour's judgment, Maloney LCM stated:

"Mr. Fayad is not an Imam nor recognised religious teacher. He is one who has volunteered his time to assist as a salesman at the Bukhari House bookshop. He is a devout Muslim and his beliefs are an integral part of his life. He readily shares his beliefs with those who choose to seek him out. This Court does not question those beliefs and the practice of his faith nor his fellow accused. They were his disciples, he their leader."

For the charge of assault occasioning actual bodily harm in company, the Defendant was sentenced to two years’ imprisonment with a non-parole period of 16 months. For the steal property in dwelling offence, the Defendant was sentenced to 12 months' imprisonment to be served concurrently.
As noted earlier, on appeal in the District Court, the conviction for the steal property in dwelling charge was overturned. The sentence for the assault charge was suspended under s.12 Crimes (Sentencing Procedure) Act 1999, with the Defendant to be released from custody on condition of entering into a good behaviour bond for two years.
His Honour Judge Bennett SC found that the evidence was “unassailable” in establishing that the Defendant “is a man of deep religious faith and throughout these events was acting pursuant to and in accordance with what he understood to be his responsibility”.
His Honour concluded that the whipping offence was proven on the basis that consent was not a matter that the Crown needed to negative or, alternatively, did not provide a defence to a charge of assault occasioning actual bodily harm. In any event, the Court found that the victim’s consent did not extend to all that befell him, rather “[h]e consented to the first of the blows in each of the three sessions, but thereafter made clear in express terms that he wanted it to stop...the great majority of the blows were without the consent of the complainant”.
His Honour Judge Bennett SC determined that the Defendant’s purpose in whipping the victim was not to gratuitously harm him for the sake of doing so, but that the Defendant’s “goal was, according to his perception of matters, for the greater good, saving [the victim] from himself”.
In her report, Dr Farida noted that Sharia law is incorporated into the legal system of a number of countries which prohibit the use of drugs and alcohol in accordance with various Quranic verses. Dr Farida noted that the administration of punishment by whipping for use or possession of alcohol or drugs is required to be undertaken by the authorities, in accordance with the relevant judicial system, and that individuals are not permitted to take the law into their own hands. Dr Farida expressed the view that “administering corporal punishment in this case echoes similar examples to a strict adherence to an ideology that supports violent extremism”. She stated that “administering this type of violence outside the judicial system aligns with violent Islamist groups such as ISIS and Al-Nusra Front on administering acts outside the law even if it does not permit it” (paragraph 5.3, report of Dr Farida).
It was submitted for the Defendant that care should be taken before using the whipping offence, in a manner adverse to the Defendant, on an application under the THRO Act. It was submitted that the conduct involved in the whipping offence was well removed from any activity advocating support for any terrorist act or violent extremism for the purpose of s.10(1)(c)(i) THRO Act.
It was submitted for the Plaintiff that the act of engaging in violent extremism will generally amount to advocating support for such conduct: State of New South Wales v Elmir (Final) at [48]. The Plaintiff submitted, further, that the opinion of Dr Farida supported the whipping offence being taken into account as engaging in violence of a kind that is promoted by an organisation or organisations that support terrorist acts or violent extremism for the purpose of s.10(1A)(a)(iii) THRO Act.
The whipping offence is to be taken into account, together with other acts and statements of the Defendant as revealed in the evidence, for the purpose of determining whether orders should be made arising from the preliminary hearing. The Defendant committed the whipping offence when aged 43 years. The religious beliefs which underpinned the offence point to a very conservative or fundamentalist view of Islam. The opinion of Dr Farida points to a linkage between the acts carried out as a result of the Defendant’s religious beliefs and the beliefs of terrorist organisations or persons who support violent extremism. It is not appropriate to consider the whipping offence in isolation. It is an incident to be considered in conjunction with other evidence for the purpose of a risk assessment to be made concerning the Defendant in November 2020.

The Defendant’s Association with Alqudsi

The evidence indicates that the Defendant has had an association with Alqudsi for a number of years.
On 15 September 2012, a protest was held at Hyde Park, Sydney against the film “Innocence of Muslims” which involved violent incidents directed to the police. The evidence does not indicate that the Defendant was involved in any violence on that day. However, the Defendant and Alqudsi were photographed standing in Pitt Street with their arms around each other and with Alqudsi displaying a single raised index finger, a gesture which has been linked to extremist groups including Islamic State, the Al-Nusra Front and Al-Qaeda (paragraphs 93, report of Dr Farida). The Defendant and Alqudsi were also recorded speaking with each other in footage taken by a television network on 15 September 2012.
Alqudsi was convicted by a jury and sentenced with respect to seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities there contrary to s.7(1)(e) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth): R v Alqudsi.
The offences for which Alqudsi was convicted and sentenced were committed between 25 June 2013 and 14 October 2013. The attraction which led to foreign fighters travelling to Syria at that time related to the activities of Islamic State and other terrorist organisations in conflicts then raging with various armies in the region of Syria and Iraq.
In considering the evidence of the Defendant’s association with Alqudsi, it is appropriate to keep in mind that, on 28 June 2013, Jabhat al-Nusra was declared to be a “terrorist organisation” for the purpose of the Criminal Code (Cth) by the Criminal Code (Organisation-Jabhat at-Nusra) Regulation 2013.
The foreign fighters the subject of Alqudsi’s offences included, relevantly, Tyler Casey, Caner Temel, Mehmet Biber (“Biber”), Muhammad Abdul Karim Musleh (“Musleh”), and a man identified as Mr Aboshi.
On 13 June 2013, the Defendant used his own mobile telephone to send Alqudsi a text message in the following terms (excluding mobile telephone numbers):

"Peace be upon you my darling these r the numbers and names of brothers that l have God willing abu shaeed [xxx] abu abdul malik [xxx] ahmad syar [xxx] abu dajana [xxx] abu alam [xxx] abu sabbr [xxx] abu hassan [xxx] bill zahrour [xxx] abu mousa [xxx] abu abdul alem [xxx] abu bakrr [xxx] abu ka tah [xxx] abu ibrahem [xxx] …”

In sentencing remarks, Adamson J observed that these men were to travel to Syria. This list of names and numbers supplied by the Defendant was found by the Court to include Mr Casey (Abu Qaqa), Mr Temel (Abu Musa), Biber (Abu Abdul Malik), Mr Aboshi (Abu Hassan) and Musleh (Abu Alem/Abu Alim). Each of those men was the subject of one of the foreign incursion offences committed by Alqudsi.
Biber was subsequently convicted of an offence under s.6(1)(a) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) that he in July and October 2013 did enter into a foreign State, namely the Syrian Arab Republic, with intent to engage in a hostile activity in that foreign State. Musleh was also subsequently convicted of an offence pursuant to s.6(1)(a) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).
Dozens of telephone calls between the Defendant and Alqudsi were intercepted during the course of the investigation of Alqudsi’s activities by law enforcement authorities.
On 25 June 2013, Alqudsi spoke to the Defendant about other men who might travel to Syria. That conversation included what Adamson J referred as metaphorical or coded references to a “soccer game” and a “soccer club”:

“Alqudsi: And allah, the exacted and Most High, you know, he's got the soccer game, the soccer club.
Fayad:   Yes, yes.
Alqudsi: And he wants the right players to be in the soccer club, or else, or or
Fayad:   Yes, yes.
Alqudsi: - you're not going to be playing.
Fayad:   That's it, Allah willing. By the weekend it'll be all shined up, Allah willing.”

A significant conversation took place between the two men on 25 June 2013:

Alqudsi: Keep - keep ... (indistinct) ... because - because we need you, ABU ZAKARIA, that's why.
Fayad: I swear by Allah, may Allah bless you! I swear by Allah I love being a part of it, brother. That's the truth.
Alqudsi: Praise be to Allah! May Allah ... (indistinct) ... Paradise!
Fayad: You too, you too, you too, brother. I'll keep you posted on --.”

The Plaintiff pointed to references to “Abu Zakaria” in other parts of the evidence, including conversations between Khalid and others. It is clear that the Defendant was known as “Abu Zakaria”.
On 6 July 2013, the Defendant and Alqudsi had a conversation which sheds light upon the role played by the Defendant:

“Alqudsi: Abu SABR, I talked to him. He seems to be very depressed. I said to him ‘what's wrong with you?’ He said to me ‘I can't wait; I'm sick of waiting’. I said to him ‘if you want to go next week, I will send you’. He said to me ‘Yeah, I am ready’. I said to him ‘all right’. I am talking to you now, this boy if I send him next week, will he be ready? This one ... in your opinion, in your own opinion ...
Fayad:   Yes.
Alqudsi: ... is he ready to go?
Fayad:   I swear to Allah brother to tell you the truth?
Alqudsi: Yeah.
Fayad:   And I be honest with you?
Alqudsi: Yeah.
Fayad:   From the day I met him that's for ... (indistinct)... speaks about.
Alqudsi: All right.
Fayad:   ... (indistinct) ... that's all what he speaks about I mean to a degree ... to a degree ... when, brother ... the Lord ... the Lord of the worlds is one lord. I mean don't think ... he wants to do here.
…
Alqudsi: I want you to focus on Abu Sabr.
Fayad:   Yes. Yes, that one is... may Allah bless him!
Alqudsi:   Yes, finished. You - you tested him before?
Fayad:   Yeah, yeah, yeah. A hundred percent, brother."

On 9 July 2013, Alqudsi told the Defendant that one of the men who had travelled overseas with a view to fighting (Musleh) was going to return. The Plaintiff submitted (accurately) that the terms of this conversation demonstrated both the trust Alqudsi reposed in the Defendant in the context of these activities, and the Defendant's preparedness to support Alqudsi (emphasis added):

“Alqudsi: The third thing is, which is a secret and I don't want any of the boys to know, just to give you a bit of   --
Fayad: What's that?
Alqudsi: Just to give you a bit of update and also --
Fayad: Yeah. Go ahead.
Alqudsi: Also, information so you can - so you can be supporting me on this with the permission of Allah, the Most High with your heart and your ... (indistinct) ...
Fayad: Yeah. Go for it. Go for it, man.
Alqudsi: One of - one of the boys is coming back today or tomorrow.
Fayad: There is no strength or might except from Allah.
Alqudsi: Okay? Bro - bro, it's a big game and the boys over there, the commanders, they are very disappointed and I don't want anyone to know. This is a secret between me and you. It stays between me and you. Brother, the brother's coming back and I won't mention his name - very staunch brother but, brother, it's not - it's a big thing over there. It's a huge thing over there. It's not a joke. So the boys …
Fayad: There is no strength or might except from Allah.
Alqudsi: The boys, they have to go through this training session. They - they pushed it with me over there. They pushed it very hard with me. And I'm sorry, brother, I can't lose -I can't close that door just because a few brothers - they're immature or they just wanna go because they're running away from a situation or this guy got his problem with Dad and I don't know what We don't want kids. This is serious. One of the brothers, after he saw what he saw, he went in and in and in and in, now he is coming back. He was speaking with me over the phone yesterday, he was crying over the phone. Like kids.
Fayad:   Glory be to Allah.
Alqudsi: You und … can you support me now? You understand where I'm coming from?
Fayad: Brother, a hundred per cent I'm gunna support you all the way.”

On 25 July 2013, the Defendant and Alqudsi had a further conversation relating to another man who wished to return from overseas. Again, the Defendant offered his support to Alqudsi:

Fayad: Talk to me, brother. Anything I can do to help you?
Alqudsi: Khalifah wants to come back.
Fayad: There is no power and no might except by Allah.
Alqudsi: And the boys are very, very upset with me What kind of calibre of brothers we are helping them with, we are sending. So, brother I want you to help me May Allah be pleased with you.”

Later in the conversation, the Defendant agreed with Alqudsi's assertion that “Whoever goes should know they can't come back" before suggesting that some form of penalty needed to be imposed:

"Yeah Yeah, but, brother, consequences, brother. There are no consequences, I mean we are not giving them penalties. We're not giving the . . (indistinct) ... penalties.”

The Defendant's involvement in Alqudsi's activities extended to financial matters. On 27 August 2013, the men had a conversation in which the Defendant indicated that he was going to retrieve $3,000.00 from a third person and offered that money to Alqudsi.
In response, Alqudsi told the Defendant “You keep the money with you” and later “I only want the money to be with you”. The conversation regarding the money appeared to be motivated, in part, by the risk that the parents of a “brother” might disrupt their plans. The relevant transcript records:

“Fayad: Keep the three thousand with me.
Alqudsi: Just in case, just in case something happens with the parents of Abu Omar.
Fayad: Yeah
Alqudsi: This way we can guarantee one brother, that's it.”

In submissions for the Defendant, it was emphasised that he had not been charged with any offence committed by Alqudsi. Whilst keeping this aspect in mind, the Court should have regard to the evidence concerning the Defendant’s association with Alqudsi in 2013 in circumstances which gave rise to Alqudsi’s conviction for serious offences. Although Alqudsi’s offences arose under legislation which predated the insertion of foreign incursion offences in the Criminal Code (Cth), the acts and words of the Defendant, including sentiments expressed by him to Alqudsi together with offers of assistance, bear upon the risk assessment process to be undertaken in the preliminary hearing.
It is pertinent to observe that the ram-raid offence (15 May 2013) and the Defendant’s acts as an accessory after the fact to the Arrows Nightclub offence (July-August 2013) occurred whilst the Defendant was engaging with Alqudsi in the manner revealed in the evidence.
Senior counsel for the Plaintiff referred to NSW Police intelligence reports concerning the Defendant with respect to the sourcing of cash and firearms in November 2013 (Exhibit AT-1, Tabs 23-24).

The Defendant in Custody from November 2013

On 29 November 2013, the Defendant commenced a period of unbroken custody as a result of being arrested and charged with the ram-raid offence and the Arrows Nightclub offence. Accordingly, all incidents revealed in the evidence since 29 November 2013 have occurred whilst the Defendant has been in custody.
On 3 December 2013, a search warrant was executed at the Defendant’s family residence at Auburn. A number of items containing material with extremist themes was located in the garage. This included a CD entitled “Syria Uprising” and a series of lectures given by Anwar al-Awlaki, a preacher whose work is relied upon by supporters of Islamic State and other terrorist organisations. Dr Farida referred to this material in her report, noting that the CD shared features of Islamic State propaganda. Although other persons lived in the Defendant’s family residence at that time, the location of this material just days after the Defendant’s arrest is relevant to the risk assessment process to be undertaken concerning the Defendant.
In January 2014, the Defendant is alleged to have been involved in an assault of an inmate (Exhibit AT-2, Tab 7).
In January 2014, custodial reports indicated that the Defendant had been attempting to convert other inmates to Islam (Exhibit AT-1, Tabs 8, 56).
Once again, custodial records in August and September 2014 indicated that the Defendant was seeking to convert, and had successfully converted, a number of inmates to Islam (Exhibit AT-1, Tabs 57-58).
In September 2014, custodial records indicated that the Goulburn Yard was being run under Sharia law and that the Defendant was “running” hate and violence on Shia inmates (Exhibit AT-1, Tab 9).

Khalid and Others Visit the Defendant on 2 November 2014

On 2 November 2014, whilst in custody at the Goulburn Correctional Centre, the Defendant received a visit from Khalid, Maywand Osman (“Osman”), Ali Al-Talebi (“Al-Talebi”) and another person.
Al-Talebi had, in fact, visited the Defendant in prison on five occasions between 5 April 2014 and 23 November 2014. Khalid had visited the Defendant in custody on 18 January 2014, 22 February 2014, 16 March 2014, 23 March 2014 and 29 March 2014 before the visit on 2 November 2014.
It is necessary to keep in mind that, as at 2 November 2014, the Defendant was 46 years of age. At that time, Khalid was 18 years old. It is apparent from the still photographs taken from the CCTV recording of the 2 November 2014 visit (MFI2), that the Defendant was significantly older than any of the persons who visited him in custody on that day.

Care is also required in assessing the exchange of letters between the Defendant and Hraichie in June and December 2016. Each of them was in custody at that time. It is the case, however, that Hraichie had committed a serious terrorism offence between November 2015 and May 2016 in support of Islamic State and that he held fixated and extremist views at that time. The fact that the Defendant and Hraichie saw fit to correspond with each other suggests that each of them considered that they had something in common. When the evidence of the Defendant’s associations with these various persons is considered together, his association with Hraichie is quite unhelpful to him.
The concession made by the Defendant based upon his associations with other persons is well founded. The evidence demonstrated associations between the Defendant and Alqudsi, Al-Ahmadzai, Al-Talebi, Khalid, Osman, Naizmand, Alou, Atai and Hraichie which fell within s.10(1)(c)(ii) taken with s.10(1A)(b)(i) THRO Act.
There is a pattern on the Defendant’s part of personal, electronic and written communications between associates who have advocated support for terrorist acts or violent extremism in different ways. I am satisfied that the Defendant had sufficient knowledge of these activities at relevant times so that he falls within the relevant provisions of s.10(1) and (1A) THRO Act.

Making Statements Advocating Support for any Terrorist Act or Violent Extremism - s.10(1)(c)(i) THRO Act

Although it is not strictly necessary to consider this aspect for the purpose of the preliminary hearing given the concession of the Defendant (soundly made) concerning his associations, I will address this aspect of the application briefly as well.
The Defendant committed the whipping offence in 2011 which was reflective of deep religious beliefs which may be seen as a form of advocacy for violent extremism. Statements and activities of the Defendant since 2011 serve to fortify the view, at least at the preliminary hearing, that he has advocated support for terrorist acts or violent extremism.
A number of statements made by the Defendant whilst in custody are capable of demonstrating support for violent extremism. These are not statements confined to expressions of deep conservative religious beliefs. Rather, when viewed in conjunction with the opinion of Dr Farida, the Defendant’s statements may be seen as advocating support for violent extremism.
Once again, it is necessary to view the evidence at the preliminary hearing as a whole and not incident by incident or statement by statement. What the Defendant has said or done on one occasion may shed light upon his thought processes and motivation on other occasions. The evidence relied upon with respect to the Defendant’s associations is relevant as well to the statutory category of making statements advocating support for any terrorist act or violent extremism under s.10(1)(c)(i) THRO Act as well.
I am satisfied that the Defendant falls, as well, within s.10(1)(c)(ii) THRO Act.

Consideration of Factors Under s.25 THRO Act

It is appropriate to refer to a number of the statutory factors contained in s.25(3) THRO Act.

Section 25(3)(b) and (c) THRO Act - Risk Assessment Report

The Defendant was offered an opportunity to participate in an interview with Ms Dewson for the purpose of preparation of a risk assessment report for these proceedings. The Defendant declined the invitation. As a result, the risk assessment report prepared by Ms Dewson was based upon her documentary examination of a wide range of material without the benefit of a clinical assessment of the Defendant.
In relation to the Defendant’s risk of general offending, Ms Dewson placed him in the “moderate” range having regard to his criminal history, punishment for institutional misconduct, bail breaches, educational and vocational difficulties, marital conflict, criminal companions and his unhelpful attitudes to treatment and sentence.
Ms Dewson assessed the Defendant as posing a “moderate” risk of violent offending by reference to a number of dynamic risk factors.
Ms Dewson applied the Violent Extremism Risk Assessment-Version 2 Revised (“VERA-2R”) structured assessment tool to assess the Defendant’s risk of violent extremism. She had regard to a number of indicators which were linked empirically to violent extremism including the Defendant’s beliefs, attitudes and ideology, social context and intention, the Defendant’s commitment and motivation and aspects of his history. Ms Dewson had regard as well to protective factors, including an indication of family support, whilst noting that the Defendant was not assisted by his disengagement from PRISM.
In the first risk assessment report dated 28 September 2020, Ms Dewson concluded that the Defendant posed a “moderate risk of engaging in violent extremist behaviour”.
In the supplementary risk assessment of 13 November 2020, Ms Dewson had regard to additional information with respect to the Defendant, including correctional intelligence reports concerning the Defendant’s conduct in custody, the visit on 2 November 2014 at the Goulburn Correctional Centre by persons including Khalid, Al-Talebi and Osman and other material.
Having considered the additional information in conjunction with the material provided originally to her, Ms Dewson considered that the material warranted a “risk rating elevation”. Ms Dewson said that, on the basis of the new evidence, her initial assessment underestimated the Defendant’s risk of engaging in violent extremist behaviours which, in her mind, fell in the “high-risk category”.
Ms Dewson concluded the supplementary risk assessment report in the following (paragraphs 30-31):

“30. Whilst it is assessed that Mr Fayad is at greater risk of violent extremism because of the new evidence outlined above, that nature of that risk remains the same. That is, he appears to be most at risk of indoctrinating and radicalising others, with the view for them to take up the Jihad overseas or within Australia. Whilst he personally has a history of violence, the risk of him personally engaging in acts of violent extremism is considered less likely, although not totally inconceivable. Given his social standing within his peer networks, both in the community and in custody, it is assessed that Mr Fayad is most at risk of taking an influential position within a group structure, in which he, directly and indirectly, supports the actions of the appointed group leader, with the objective of furthering religious objectives, namely the Jihad.
31. In terms of the recommendations, these were outlined in paragraph 82 to 86 of the original risk assessment report. Acknowledging the increased risk rating, there are no changes to these recommendations on account of this updated report. To summarise, Given Mr Fayad's behaviour in the community and in custody, his ongoing association with known terrorists, his recently reassessed high risk of violent extremism, and his outstanding treatment needs, it is my opinion that his release into the community in the absence of any supervision would pose a significant risk to the community. He has not completed adequate intervention to ameliorate his risk and subsequently has outstanding treatment needs. The best place for these to be addressed, and whether Mr Fayad meets the threshold as posing an unsuitable risk as defined by the Act, is respectfully directed to the Attorney General and the Courts.”

Also relevant under s.25(3)(b) and (c) THRO Act is the PRISM assessment report of 12 November 2018, to which reference was made earlier in this judgment.
For the purpose of the PRISM report, the authors applied the Paulhus Deception Scale and the Defendant scored in the above average range for impression management and a very much above average range on the self-deception enhancement scale. The Defendant’s responses were said to “suggest a rigid overconfidence and narcissistic tendencies, arrogance, pervasive lack of insight, and the potential to display anger if confronted” (Exhibit AT-1, Tab 45, page 592). The authors also applied the VERA-2R assessment tool to the Defendant, noting a number of factor which operated against the Defendant on this measure (Exhibit At-1, Tab 45, pages 593-594). The Executive Summary of the PRISM report dated 12 November 2018 was set out earlier in this judgment (see [177] above).
It was submitted for the Defendant that Ms Dewson’s risk assessment reports were of limited use given the fact that she had not couched her assessments in terms of the Defendant’s risk of engaging in a “serious terrorism offence” as defined in the THRO Act. The Plaintiff submitted that this was a semantic distinction which did not bear upon the substance of the opinions expressed by Ms Dewson.
I do not consider that the terminology used by Ms Dewson in some way discounts her opinions with respect to the Defendant. The use of the VERA-2R assessment tool raises pertinent issues with respect to the risk assessment process for a person on an application under the THRO Act.
It is, of course, a matter for the Court to determine whether orders should be made under the THRO Act with respect to the Defendant. It is, however, relevant to the task being undertaken by the Court to understand the risk assessment process undertaken by an expert witness such as Ms Dewson. This is not a situation where the expert has asked the wrong question or addressed the wrong issues in making an assessment for the purpose of a report. The issues addressed by Ms Dewson in her reports are highly pertinent to the risk assessment process required under the THRO Act.

Section 25(3)(j) THRO Act - Defendant’s Criminal History

I have outlined the Defendant’s criminal history earlier in this judgment. The whipping offence in 2011 raised particular issues which are pertinent to this application, especially when viewed with other aspects of the evidence concerning the Defendant’s associations and beliefs. The whipping offence indicates that the Defendant was prepared to use violence in aid of his strong religious beliefs in that particular context.
Although the index (ram-raid) offence and the Arrows Nightclub offence are of a different nature, they shed light upon the capacity of the Defendant to engage in group-based violent conduct in association with offenders including persons with extremist leanings such as Al-Ahmadzai.
These matters are pertinent to assessment of the relevant risk for the Defendant, especially when taken with other statements and acts of the Defendant referred to in evidence.

Section 25(3)(l) THRO Act - Beliefs or Commitments of the Defendant

Various aspects of the evidence are relevant to an assessment of the Defendant’s beliefs or commitments as part of the risk assessment process under the THRO Act.
In approaching evidence concerning the Defendant’s beliefs and commitments, it is important to keep in mind that the risk assessment process requires more than identification of conservative religious beliefs on the part of the Defendant. There are various pieces of evidence which indicate that the Defendant holds strong and strict views of Islam. The risk assessment process should extend beyond that to ascertaining the risk of commission of a serious terrorism offence for the purpose of s.20(d) THRO Act.
The evidence indicates that the Defendant is a Sunni Muslim whose beliefs reflect Salafist doctrine. This evidence includes the 2011 whipping offence and explanations provided by the Defendant for that offence in other contexts.
Although the whipping offence was committed some nine years ago, the Defendant was then aged about 43 years. He was not a young and immature man who had, perhaps with a degree of youthful naivety, become involved in an offence of violence based upon strongly held religious beliefs. To the contrary, the evidence indicates that the Defendant had by then an established and clear belief system which manifested itself in violent criminal conduct.
In addition, there is evidence which indicates that the Defendant is a person with a strong personality who is capable of exerting influence upon others. Young men such Khalid, Alou, Atai and others (who were not related to the Defendant) went to the trouble of visiting the Defendant in custody at Goulburn in 2014 in circumstances where a readily available inference is that the young men were guided and influenced by the Defendant and his beliefs. These young men soon after committed serious terrorism offences.
The evidence concerning the Defendant’s behaviour in custody suggests an ongoing attitude on his part of exerting religious influence over other inmates with a view to converting them to Islam.
Further, the Defendant’s associations with others have regularly involved persons who have committed crimes of a terrorist nature or which are linked to extremist religious beliefs. The evidence indicates that the Defendant’s close associates who fall within these descriptions include Khalid, Al-Talebi, Al-Ahmadzai, Alqudsi and Osman.
The evidence does not suggest that the Defendant’s beliefs or commitments have mellowed in some way since he has been in custody in the last seven years. Rather, there are a number of incidents which have occurred which suggest the maintenance of these strong beliefs and an unwillingness to disengage by means of the PRISM program or other measures which may have been available to him.
The evidence indicates a level of enmity on the Defendant’s part towards non-believers and Shia Muslims as reflected in his comments and conduct in the custodial setting.
With respect to the Defendant’s attitude towards Islamic State, the Plaintiff submitted that the evidence demonstrated a level of support on the part of the Defendant for Islamic State and like terrorist organisations. It was conceded for the Defendant that it would be open to the Court to draw an inference, from the totality of the views expressed, that the Defendant would endorse or approve of actions of Islamic State or like organisations if they were judged to be justified or allowed by Islamic scholars.
In my view, the concession made on behalf of the Defendant indicates the most favourable view for the Defendant arising from the evidence. When regard is had to the totality of the evidence and the Defendant’s statements and acts over a number of years, it is well open to the Court to conclude that the Defendant is more than sympathetic to the cause of Islamic State or similar minded terrorist organisations.
It is not as though the barbaric and criminal acts committed by supporters of Islamic State give rise to a situation where reasonable minds may differ as to its activities and objects. Nor should condemnation of Islamic State be, in some way, dependent upon the views of Islamic scholars. It might be thought that there is a unanimous condemnation of Islamic State by the Muslim community in Australia, with the exception of those individuals who support its criminal objects.
In circumstances where these are the Defendant’s beliefs and where he is entitled to release into the community upon the complete expiration of his sentence on 28 November 2020, there is a substantial foundation for the making of orders as sought by the Plaintiff at the preliminary hearing in the interests of protection of the community.

Section 25(3)(d) THRO Act - Risk Management Report

A risk management report was provided by Community Corrections on 19 October 2020. This report contains a management plan directed to addressing the risk posed by the Defendant.
The report proposes that the Defendant be subject to face-to-face contact with an Enforcement Officer at least weekly and provides for the monitoring of his associations and referral to the Engagement and Support Program. The report also recommends that the Defendant be subject to particular conditions including a schedule of movements, electronic monitoring, the approval of his associates and his access to electronic material.
The matters raised in this risk management report have been factored into the proposed conditions if the Court determines to direct that the Defendant be subject to an ISO under the THRO Act.

Section 25(3)(h) and (i) THRO Act - Compliance with Obligations

As noted earlier in the judgment, the index (ram-raid) offence was committed when the Defendant was on bail for the whipping offence. This is a relevant factor to take into account when assessing the Defendant’s attitude to compliance with obligations under an ISO or ESO.
Of course, the Defendant has not been subject to conditional liberty in the community since 2013 as he has not been granted parole.

Section 25(3)(f) THRO Act - Treatment or Rehabilitation Programs

The Defendant refused initially to participate in the PRISM program which is aimed at disengaging an offender from radical ideas or peers. However, on the third approach to him (on 10 July 2018), the Defendant consented to participate in PRISM.
PRISM staff reported that he was initially suspicious and guarded, but his interaction improved over time. However, once it was clear that the Defendant was not to be released on parole, he expressed a clear unwillingness to engage further with PRISM.
The Plaintiff submits, with some justification, that the evidence suggests that the Defendant’s engagement with PRISM was purely strategic with the refusal of parole in December 2018 leading to disengagement as the Defendant had not gained the benefit of parole release.
In having regard to the Defendant’s attitude to PRISM, it is necessary once again to keep in mind his age and level of maturity. He is not a young man who may be prone to impulsive thought processes and sudden changes in approach. There is much to be said for the Plaintiff’s submission that the Defendant’s involvement with PRISM was not based upon a genuine desire to disengage, but rather an intention to create an impression of co-operation with the authorities which was only maintained until parole was not granted.
The manifestation of such an attitude by the Defendant supports the granting of an ISO with conditions in circumstances where otherwise the Defendant would be at liberty in the community without any conditions operating at all.

Section 25(3)(k) THRO Act - Views of Sentencing Court

When sentencing the Defendant for the index (ram-raid) offence and the Form 1 offences, her Honour Judge Woodburne SC noted the level of planning involved in the commission of the index offence as well as other pertinent aspects of the offending.
Whilst the index offence was not committed in a terrorist context, the observations of the sentencing Judge bear upon the risk assessment process required for the purpose of s.20(d) THRO Act.

Section 25(3)(m) THRO Act - Other Relevant Matters

The Defendant’s conduct in custody since 2013 has been marked by a number of institutional offences including intimidation and verbal abuse. A number of incidents involving the Defendant has been summarised earlier in this judgment.
A custodial note in June 2020 states that the Defendant was “polite to staff and compliant with unit routine” so that the Defendant is able to comply with accepted standards of conduct when he chooses to do so.
It is necessary to keep in mind that the Defendant has been housed for a number of years at the HRMCC where other inmates are terrorism offenders. That said, the Defendant appears to have fitted in with that class of offender and to have expressed common views and beliefs with them to custodial staff on a number of occasions.
The Defendant’s associations with persons who have been involved in terrorism offences and persons holding extremist views is a further factor to be considered under s.25(3)(m) THRO Act.
It was submitted for the Defendant that a number of the persons relied upon by the Defendant as associates of the Defendant will be in custody for extended periods as a result of sentences of imprisonment which they are serving for their offences. In this way, it was submitted that, if the Defendant is subject to an ISO and an ESO in the community, he will not be in a position to associate with these persons who will be held in close custody, probably in the HRMCC.

I have kept in mind this submission on behalf of the Defendant. It is true that the Defendant’s capacity to associate directly with persons who are serving sentences of imprisonment will be curtailed because of their incarceration.
However, the Plaintiff’s argument is that the Defendant has demonstrated a capacity to engage with others holding violent extremist views and to exercise influence over younger persons and others. It is this aspect of the Defendant which is of direct concern arising from his associations.
The risk to the community which would arise if the Defendant engaged with like-minded associates in the community, and exercised influence over them, is of particular concern where the result may be the commission of a serious terrorism offence or offences. The supplementary risk assessment report of Ms Dewson identified this as a particular area of risk with respect to the Defendant.

Section 25(2) THRO Act - Safety of the Community as the Paramount Consideration

All of the matters addressed so far in this judgment bear upon the paramount consideration for the Court on this application, being the safety of the community: s.25(2) THRO Act.
It may be seen that the cumulative effect of the matters referred to so far in this judgment is to raise a real concern for the safety of the community if the Defendant was released from custody without appropriate supervision.

Has the Plaintiff Demonstrated that an ISO and an Order for Examination of the Defendant Should be Made in this Case?

In assessing the unacceptability of the risk of the commission of serious terrorism offences, it is relevant to consider not only the probability of such offences being committed, but the degree of harm likely to result.
In State of New South Wales v Ceissman [2018] NSWSC 508, Rothman J observed (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.”

It is necessary to keep in mind the threshold for a “serious terrorism offence” for the purpose of the THRO Act.
To fall within the definition, an offence must be punishable by imprisonment for seven years or more. As indicated earlier in the judgment (see [35] above), a wide range of offences fall within the definition of “serious terrorism offences”. These include planning offences and aiding and abetting offences.
The Plaintiff submitted that the offences likely to be of the greatest relevance to the Defendant’s risk is that of recruiting for a terrorist organisation contrary to s.102.4 Criminal Code (Cth) together with offences of engaging in a terrorist act (s.101.1), doing acts in preparation for or planning, a terrorist act (s.101.6), membership of a terrorist organisation (s.102.3), getting funds to, from or for a terrorist organisation (s.102.6) and/or the provision or support to a terrorist organisation (s.102.7).
For the purpose of the preliminary hearing, I am satisfied that the relevant risk relates more to a supportive, organisational or recruiting role with respect to a terrorist offence given the activities of the Defendant revealed in the evidence. The opinion of Ms Dewson in her supplementary risk assessment report supports this conclusion.
As noted in State of New South Wales v Cheema (Preliminary) at [189], I agree with the statement of Wilson J in State of NSW v Alam at [129] that it is not necessary for the Court to specify the precise “serious terrorism offence” as part of the Court’s risk assessment function under the THRO Act. The risk assessment process is forward looking: State of NSW v Naaman (No. 2) at [29]. It is sufficient that the Court is satisfied that the Defendant poses an unacceptable risk of committing “a serious terrorism offence” and this extends far beyond the need for there to be a risk that the Defendant will himself commit a violent act or acts which fall within the definition of “terrorist act”.
On the totality of the evidence and applying the principles pertinent at the preliminary hearing, I am satisfied that the Defendant continues to harbour fundamentalist religious beliefs and rejects key aspects of Australian democratic society. He has demonstrated associations with terrorism offenders and those supportive of violent extremism, with those associations having manifested themselves both when the Defendant has been at large in the community and when confined in a correctional centre.
The Defendant has declined to continue engagement with the PRISM program in a manner which gives rise to real concern that he continues to hold beliefs, which he is prepared to act upon through associates who are similarly minded, with a risk resulting of the commission of a serious terrorism offence.
I am satisfied that the Plaintiff has demonstrated a proper foundation for the making of the orders sought by way of psychiatric and psychological examination and the fixing of an ISO concerning the Defendant.
The Court retains a discretion as to whether or not to make an order even where the statutory criteria exist in a particular case. There are no discretionary considerations in the Defendant’s case that ought lead to the Court declining to make orders as sought by the Plaintiff at the preliminary hearing: State of NSW v Ceissman at [38].

Conditions of the ISO

Section 29 THRO Act provides extensively for conditions of an ISO. A person to whom an ISO applies must comply with the requirements of the order with a breach of the ISO being punishable by imprisonment for five years or a fine of 500 penalty units or both: s.30 THRO Act.
The Court must be satisfied, having regard to the scope, purpose and objects of the THRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [53]-[54].
The Plaintiff sought conditions of an ISO in the form of proposed conditions attached to the Summons. Short submissions were made for the Defendant which contended that several conditions were onerous and were not directed appropriately to any risk which the Court might determine is posed by the Defendant.
It was submitted for the Defendant that proposed Condition 5 (which required approval before the Defendant drove a vehicle) was not necessary to adequately manage any risk he may pose, especially if proposed Condition 4 (carry an approved mobile phone) and proposed Condition 10 (electronic monitoring) are imposed.
It was submitted as well that there was no need for conditions concerning psychological counselling or conditions about the Defendant’s medical and psychological treatment (proposed Conditions 25-30) in circumstances where there was no evidence that the Defendant suffered from any psychological or medical conditions.
The Plaintiff submitted that the conditions as sought were appropriate in this case. It was noted that the index offence involved the use of a vehicle by the Defendant. Although there is no evidence that the Defendant suffers from any medical or psychological condition, it was submitted for the Plaintiff that it was appropriate for proposed Conditions 25-30 to be applied in this case.
I am satisfied that proposed Condition 5 is reasonable in the circumstances of this case. The condition requires the Defendant to give notice to an Enforcement Officer and does not prohibit him from driving a vehicle. It is pertinent that the index offence involved an offence committed with the use of a motor vehicle.
With respect to proposed Conditions 25-30, I note that proposed Condition 25 arises from s.29(1)(k) THRO Act with respect to undergoing psychological or psychiatric treatment or counselling as directed by an Enforcement Officer. In circumstances where the Defendant will be returning to the community after seven years in a close correctional environment, it is appropriate to have such a condition in place, in particular given the features of the Defendant identified as part of the present risk assessment.
I have considered all other proposed conditions sought by the Plaintiff for the purpose of the ISO. I express my satisfaction that each of the conditions is appropriate for inclusion in the ISO to be ordered by the Court.

Conclusion and Orders

I am satisfied that the statutory requirements for the making of an ISO and an order for psychiatric and psychological examination have been established in this case.
I am satisfied that the ISO should be subject to Conditions 1-51 as sought by the Plaintiff.
The Court makes the following orders:

An order pursuant to s.24(5) Terrorism (High Risk Offenders) Act 2017:

(i) appointing a qualified psychiatrist and a registered psychologist, the identify of whom is to be agreed between the parties, to conduct separate psychiatric and psychological examinations (as the case may be) of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(ii) directing the Defendant to attend those examinations.

An order pursuant to ss.27 and 28 Terrorism (High Risk Offenders) Act 2017 that the Defendant be subject to an Interim Supervision Order for a period of 28 days commencing on 28 November 2020.

An order pursuant to s.29(1) Terrorism (High Risk Offenders) Act 2017 directing that the Defendant comply with the conditions set out in the Schedule to this judgment for the duration of the Interim Supervision Order specified in Order (b) above.

The parties are granted leave to approach the High Risk Terrorism List Judge to obtain a date for the final hearing of the Plaintiff’s application.

The parties are to agree upon a timetable for the provision of expert reports to the Court and for the filing and service of evidence and submissions.

Draft Short Minutes of Order that reflect the matters referred to in Orders (a) and (e) are to be provided to my Associate by 3.00 pm on 30 November 2020 for execution by the Court.

An order restricting access to the Court’s file on this proceeding such that access would be permitted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties so as to allow them an opportunity to be heard in respect to the application for access.

Liberty to apply by email contact with my Associate for the purpose of any variation being sought to the orders of the Court.

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Fayad Schedule (34015, docx)

Decision last updated: 26 November 2020

Medium Neutral Citation:	State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681
Hearing dates:	19 November 2020
Date of orders:	25 November 2020
Decision date:	25 November 2020
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Refer to [292] of this judgment.
Catchwords:	HIGH RISK TERRORISM OFFENDER - preliminary hearing - whether interim supervision order (“ISO”) should be made - whether psychiatrist and psychologist should be appointed to examine Defendant - “convicted NSW terrorism activity offender” - Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism - Defendant serving full sentence of imprisonment for seven years for non-terrorist offences - Defendant disengaged from PRISM program - parole refused - held relevant risk of commission of serious terrorism offence established - ISO granted subject to conditions - order made for psychiatric and psychological examination by court-appointed experts
Legislation Cited:	Community Protection Legislation Amendment Act 2018 Crimes (Administration of Sentences) Act 1999 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Code (Cth) Evidence Act 1995 Terrorism (High Risk Offenders) Act 2017
Cases Cited:	Ainsworth v Burden [2005] NSWCA 174 Alou v R (2019) 101 NSWLR 319; [2019] NSWCCA 231 Atai v R [2020] NSWCCA 302 Cheema v State of New South Wales [2020] NSWCA 190 Fayad v R [2017] NSWCCA 81 Lawrence v State of New South Wales [2020] NSWCA 248 Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 R v Alqudsi [2016] NSWSC 1227 R v Biber [2018] NSWSC 535 R v Musleh (No. 5) [2018] NSWSC 1927 R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 State of New South Wales v Ceissman [2018] NSWSC 508 State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 State of New South Wales v Elmir (Final) [2019] NSWSC 1867 State of New South Wales v Osman [2020] NSWSC 1646 State of NSW v Alam [2020] NSWSC 295 State of NSW v Elomar (No. 2) [2018] NSWSC 1034 State of NSW v Elzamtur [2019] NSWSC 186 State of NSW v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 State of NSW v Naaman (No. 2) [2018] NSWSC 1329 State of NSW v Sturgeon [2019] NSWSC 559 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Texts Cited:	---
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Wassim Fayad (Defendant)
Representation:	Counsel: Mr J Emmett SC; Ms C Palmer; Mr A Mykkeltvedt (Plaintiff) Mr S Prince SC: Dr J Lucy Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2020/288820
Publication restriction:	---