State of New South Wales v GB by his Tutor

[2020] NSWSC 913

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v GB by his Tutor [2020] NSWSC 913

Hearing dates:

15 July 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

1. The summons is dismissed

2. The plaintiff is to pay the defendant’s costs

Catchwords:

HIGH RISK OFFENDERS – preliminary hearing – whether matters alleged would if proved justify an ESO – whether offender poses an unacceptable risk of committing a serious terrorism offence

Legislation Cited:

Children (Detention Centres) Act 1987 (NSW)

Criminal Code (Cth)

Firearms Act 1996 (NSW)

Mental Health Act 2007 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

State of New South Wales v Carr 2020 NSW FC 643

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

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

Category:

Principal judgment

Parties:

State of New South Wales
GB by his Tutor

Representation:

Counsel:
M G McHugh SC, C Newman (Plaintiff)
M Johnston SC (Defendant)

Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/201956

Publication restriction:

Nil

Judgment

1. The plaintiff, the State of New South Wales, (“the State”), brings proceedings against GB, the defendant, pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”), for an Interim Supervision Order with a view to an Extended Supervision Order (“ESO”) of 3 years on specific conditions.

2. The defendant opposes the imposition of any ESO.

3. The Summons seeking these orders was filed on 8 July 2020. The defendant is due for release at midnight tonight, 17 July 2020.

4. Due to this very late filing, the defendant has had to compress both his time to give instructions to his legal representatives and their time to prepare his defence of this application. The quality of the written submissions provided by senior counsel for the defendant, and the relevance and succinctness of the material provided by the defendant for me to consider, is indeed commendable given the preposterously short timeframe within which this had to be prepared.

5. Were it not for the quality of that material, I would have significant misgivings about the extent to which there has been procedural fairness allowed to the defendant. It is of significant concern to me as a Judge of this Court that orders seeking to criminalise and curtail the movements and rights of an 18-year-old man, in custody for offending as a minor, who has significant mental illness and cognitive impairments, are sought on such a last minute basis.

The Legislation

6. The requirements for making an ESO are set out in ss 20 and 21 of the Act:

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.

…

1. 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.

7. Section 4 of the Act defines a serious terrorism offence as “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment.”

8. Sections 6 and 7 deal with the persons to whom the Act can apply. Section 7 defines an “eligible offender” as:

7   Eligible offender

In this Act, an eligible offender is a person who is:

(a)  18 years of age or older, and

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

9. Section 6 defines the words “serving a sentence of imprisonment”:

6   Serving sentence of imprisonment

In this Act, a person is serving a sentence of imprisonment for an offence if:

(a)  the person is serving a sentence of imprisonment for the offence by way of full-time detention, or

(b)  the person is on parole in respect of the offence.

10. The State says that for the purposes of s 20(c) of the Act, the defendant is a “convicted NSW terrorism activity offender” as defined in s 10 of the Act, relevantly as follows:

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.

11. Section 100.1 of the Criminal Code (Cth) defines “terrorist act” as:

“terrorist act” means an action or threat of action where:

(a)  the action falls within subsection (2) and does not fall within subsection (3); and

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

(c)  the action is done or the threat is made with the intention of:

(i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)  intimidating the public or a section of the public.

(2)  Action falls within this subsection if it:

(a)  causes serious harm that is physical harm to a person; or

(b)  causes serious damage to property; or

(c)  causes a person's death; or

(d)  endangers a person's life, other than the life of the person taking the action; or

(e)  creates a serious risk to the health or safety of the public or a section of the public; or

(f)  seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)  an information system; or

(ii)  a telecommunications system; or

(iii)  a financial system; or

(iv)  a system used for the delivery of essential government services; or

(v)  a system used for, or by, an essential public utility; or

(vi)  a system used for, or by, a transport system.

(3)  Action falls within this subsection if it:

(a)  is advocacy, protest, dissent or industrial action; and

(b)  is not intended:

(i)  to cause serious harm that is physical harm to a person; or

(ii)  to cause a person's death; or

(iii)  to endanger the life of a person, other than the person taking the action; or

(iv)  to create a serious risk to the health or safety of the public or a section of the public.

12. Section 102.1 of the Criminal Code defines “terrorist organisation” as follows:

"terrorist organisation"means:

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

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

13. Sections 24 and 27 of the Act deal with the making of an interim order. Relevantly those sections provide:

1. Pre-trial procedures

…

(4)  A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(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.

…

1. 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.

A summary of the positions taken by the parties

14. The defendant does not take issue with the fact that he satisfies ss 4, 6, 7 and 20(a), (b) and (c) of the Act. Satisfaction of s 20(c) is reached by the fact that the defendant is “a convicted terrorist offender” as defined in s 10(1)(c)(i)-(ii), despite never having committed a terrorist offence. As described by senior counsel for the defendant, Mr Johnston SC, satisfaction of s 10(1)(c) is conceded, not because the defendant did anything for an ideological purpose but that it gets across the “bare line”. The concession is sufficient to put to one side any jurisdictional argument. There is thus a technical satisfaction of the requirements of s 20(c). Unlike the High Risk Offender legislation, there is no index offence required to have been previously committed that is of the same nature of the risk to be assessed for the application.

15. The defendant takes significant issue with the assertion that s 20(d) can be satisfied, submitting that even assuming the State’s material is fully accepted, this Court would not be 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.

16. It is well explained in both the written and oral submissions of the defendant as to why that position has been taken.

17. The focus of what follows is to what extent the 2 volumes of evidence tendered by the State addressing the matters to be taken into account under s 25(3) of the Act and any other relevant matters, substantiate that risk.

18. As was acknowledged by Mr McHugh SC on behalf of the State, some of that material pulls in different directions. Mr McHugh submitted however that there was a sufficient basis to be satisfied under s 20(d) particularly given the defendant’s vulnerability to influence, known associations with proven terrorist links and behaviours demonstrated, particularly when not taking his medication and not supervised.

19. As succinctly put by Mr Johnston SC on behalf of the defendant, the fact that supervision might be “beneficial” for the defendant, protective of the community against the defendant’s potential offending generally, or even reducing the risk of violent offending, is not relevant and is certainly not decisive. The risk considered must be the risk of committing a serious terrorism offence as defined in Part 5.3 of the Criminal Code, and that risk must be one that is unacceptable and one that arises if the defendant is not kept under supervision under the order. The evidence does not rise to that level. The issue must not be resolved by mere speculation, even at the interim application stage.

The principles articulated in the case law

20. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29], the Court of Appeal (comprising Basten, Macfarlan and Leeming JA) provided the following helpful guidance in relation to s 20(d) of the Act:

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

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

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

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

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

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

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

21. Useful statements by this Court addressing unacceptable risk were set out in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [24]-[26] by N Adams J:

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

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

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

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

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

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

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

The evidence

22. The State relied on the following evidence:

1. Affidavit of Patrick Mullane affirmed 8 July 2020 together with annexures and exhibit PM-1 referred to in that affidavit;

2. Affidavit of John Walke sworn 9 July 2020;

3. Affidavit of Rhys Reynes affirmed 10 July 2020;

4. Affidavit of Gabriel Assaad sworn 10 July 2020;

5. Affidavit of Joshua Patch affirmed 11 July 2020 together with exhibit JP-1;

6. Affidavit of Patrick Mullane affirmed 13 July 2020 together with annexures and exhibit PM-2.

23. The defendant read an affidavit of Todd Davis affirmed 14 July 2020 and an affidavit of the defendant’s solicitor, Hayley Le, affirmed 14 July 2020. I also note that a Consent to Act as Tutor and accompanying affidavit of XXXXX XXX affirmed 13 July 2020 was filed on 13 July 2020. This position is reflective of the fact that the defendant has both a guardianship and a financial management order in place and the views of those who act for him that he requires a tutor for the purposes of defending the proceedings brought by the State against him.

The defendant’s personal circumstances and relevant history

24. The following summary has been extracted from the written submissions of the State:

“49. The defendant was born on 17 August 2001. He is aboriginal and was under the parental responsibility of the Minister for Family and Community Services. He has been incarcerated 22 times since he was 13 years old and has spent the majority of his adolescence in custody.

50. The defendant has a diagnosis of schizophrenia, substance use disorder, conduct disorder and post-traumatic stress disorder. He also has an intellectual disability. [1]

1. Psychiatric Risk Assessment report of Dr Singh dated 15 May 2020 (Dr Singh report dated 15 May 2020) at [340] and [1100].

51. The defendant has a history since infancy of severe abuse and neglect. [2] His early experiences of neglect and abuse when in the care of his mother and subsequent negative experiences of care when living with his aunt (Ms Gail Brown) and the subsequent out of home placement symptoms, and restraints, and period of confinement while incarcerated have, in the opinion of Dr Yolisha Singh, contributed to his symptoms of post-traumatic stress disorder. [3]

2. Ibid at [380]-[390].

3. Ibid.

52. Below is a summary of the defendant’s relevant previous criminal proceedings leading to his most recent parole proceedings:

a. The defendant was previously subject to a control order under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (CCP Act) by way of fulltime imprisonment for a period of 18 months with a 9 month non parole period for firearms offences, namely possess loaded firearm in a public place and possess unauthorised pistol. His sentence was due to expire on 12 April 2019, with eligibility for parole from 12 July 2018. [4] His co-offender in this offending was Damien Featherstone, an associate dealt with further below at [160]-[163].

4. Exhibit PM-1, Tab 1, Criminal History- Bail report, p. 41.

b. On 5 April 2018, the defendant was found guilty of two offences of assault law enforcement officer (not police officer) and was consequentially subject to two further control orders, under which he was to be detained for a period of three months commencing 5 October 2018 and expiring on 4 January 2019. [5]

5. Exhibit PM-1, Tab 9, Control Order, p. 107.

c. Following a contested hearing on 21 December 2018 in relation to an application by the Secretary to revoke the defendant’s parole, he was released to parole on 4 January 2019. It is noted that Magistrate Sheedy found that the defendant was a terrorism related offender under s 59(1)(e) of the CCP Act due to his association with WE (a pseudonym) who was in custody for terrorism related offences, although her Honour decided not to exercise her discretion to revoke parole pursuant to s. 60(2) of the CDC Act. [6]

6. Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 132.

d. On 9 January 2019, the defendant was returned to custody following breaches of his parole conditions.

e. On 24 May 2019, the defendant was found guilty by the Children’s Court of:

i. four counts of assault law enforcement officer (not police), inflicting actual bodily harm;

ii. five counts of assault law enforcement officer (not police); and

iii. one count of destroying or damaging property.

f. The defendant was sentenced to a control order for an aggregate term of 16 months dating from 16 March 2019 to 15 July 2020. The defendant’s non-parole period of six months expired on 15 September 2019. [7] It is noted that these are the current index offences.

7. Exhibit PM-1, Tab 6, Control Orders, p. 85.

g. On 16 September 2019, the defendant breached the conditions of his parole by spending the night at the residence of Katherine Sebbens (the partner of Damien Featherstone). Further, on 19 September 2019, the defendant advised Youth Justice that he had returned to Wollongong but would not disclose his exact whereabouts.

h. On 21 September 2019, the defendant was returned to custody following a formal revocation of his parole by the Children’s Court on 20 September 2019. [8]

8. Exhibit PM-1, Tab 16, Revocation Order and Arrest Warrant, p. 158.

i. On 7 January 2020, the defendant was again released to the community on parole, after the Children’s Court determined after a contested hearing that it was in the interests of the safety of the community for him to be released on a fresh grant of parole.

53. In support of the plaintiff’s application are a number of case notes in relation to the defendant’s parole supervision after his release into the community on 7 January 2020. [9] It is apparent from the records that he began residing alone in a Housing NSW property in Merrylands. The case notes generally provide a positive summary of his ability to reside alone, keep his home clean and tidy, cook and clean for himself. [10]

9. Exhibit PM-1, Tab 24, CIMS Notes, p. 221-227.

10. Ibid, p. 222-223.

54. There are a number of case notes that the defendant reported that he did not wish to take his mental health medication due to the side effects. [11] Furthermore, he failed to attend a number of appointments and disclosed his use of illicit substances (MDMA, methamphetamine and heroin) and his non-compliance with his prescribed medication. [12]

11. Ibid, p. 224.

12. Ibid, p. 224-225.

55. On 27 March 2020, the defendant was charged with having custody of a knife in a public place and on 29 March 2020, he was charged with being knowingly carried in/on a stolen conveyance. He has been sentenced in relation to the custody of knife offence but has entered a plea of not guilty to the latter offence. He was granted police bail in relation to both charges. On 10 July 2020, the police made a detention application in relation to the conveyance charge. The application was formally refused by the Local Court.

56. On 30 March 2020, the defendant stated to his parole officer that he would ‘shoot up [the officer’s] office’ [13] . The updated Report for Parole Revocation Review Hearing dated 9 April 2020 sets out that the defendant had reported to his caseworker that he was using ice and heroin approximately every two days, was no longer compliant with his medication and was becoming increasingly confrontational. [14] The defendant’s parole was revoked by the Court later that day.

13. Exhibit PM-1, Tab 16, Revocation Report, p. 158.

14. Exhibit PM-1, Tab 50, Update Report for Parole Revocation Review Hearing, p. 467.

Incidents in Custody related to the defendant’s violent extremism

57. Relevant incidents in custody as described in case notes by staff include:

a. On 2 February 2017, the defendant put a note on his Perspex window saying: ‘you are gonna die you dogs E4E’ [15] ;

15. Exhibit PM-1, Tab 33, Intelligence Report 003/18, p. 335; Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 127.

b. On 13 February 2017, the defendant spat on staff members. On 14 February 2017, he stated to police: ‘you just wait cunt, you will have another Parramatta, just wait’ [16] . Furthermore, a member of staff was hospitalised after the offender kicked open his cell door during the transfer back to his cell [17] ;

16. Exhibit PM-1, Tab 29, Information Report DIU 740, p. 291; Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 127.

17. Exhibit PM-1, Tab 29, Information Report DIU 740, p. 292.

c. On 15 February 2017, he told a staff member that he had been converted to Islam by detainee WE when they were housed together at Cobham Juvenile Justice Centre. The defendant said he knew WE and detainee HG at a mosque in Bankstown and also knew the cleric at the mosque. The defendant was admitted to Cobham on 18 January 2017 [18] ;

18. Ibid; Exhibit PM-1, Tab 33, Intelligence Report 003/18, p. 335; Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126.

d. On 25 November 2017, the defendant is reported to have threatened to return to a Youth Justice Centre following his release to shoot and behead staff [19] ;

19. Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126; Exhibit PM-1, Tab 33, Intelligence Report 003/18, p. 336.

e. On 3 January 2018, the defendant spat at staff and then using the intercom stated that as soon as he sees a staff member he is going to ‘dog shot anyone of us because we are all fucking dog cunts’. When asked why, he said ‘you won’t even know it is coming cunt I will hit you from behind’. He began yelling ‘ISIS on my chest, ISIS on my chest’ [20] .

20. Ibid.

f. On 22 January 2018, he spat at staff members and force was required to move him. He made numerous threats to ‘come back to the centre with a gun’ after release and to shoot a member of the staff. He yelled ‘ISIS on my chest’ over and over. When he asked what this meant, he said ‘it means one of you motherfuckers is gone to die’ [21] ;

21. Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126; Exhibit PM-1, Tab 33, Intelligence Report 003/18, p. 335-336.

g. On 17 February 2018, his cell room was found with chalk graffiti with phrases depicting criminal gangs, including Brothers for Life and Natural Born Killers; [22]

22. Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126; Exhibit PM-1, Tab 29, Information Report DIU 804.

h. On 20 February 2018, a note was seized from his room containing a drawing of a machine gun with numbers 2210 on either side, with words: [23]

23. Ibid; Exhibit PM-1, Tab 31, Intelligence Report 00/18, p. 302; Exhibit PM-1, Tab 31, Information Report, p. 314.

‘e4e when I get out gonna Nickallback and annabatullu to AFP’

‘isis on my chest’

‘when I get out’

‘natural born killers’;

i. On 24 February 2018, he stated that he was a member of a gang, which he says is with ISIS, and that he is close with the leaders of the gangs [24] ;

24. Exhibit PM-1, Tab 33, Intelligence Report 003/18, p. 327; Exhibit PM1-, Tab 35, Intelligence Report 001/19, p. 348; Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126.

j. On 25 February 2018, he wrote phrases in chalk depicting his desire to have contact with gangs such as Brothers of Life and Natural Born Killers [25] ;

25. Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126.

k. On 12 March 2018, when his demands were not met, he said words to the effect ‘you are all fucking infidels’ [26] ;

26. Ibid.

l. On 7 June 2018, he ‘was boasting that when he gets out he is going to do a terrorist attack in Sydney’ [27] ;

27. Exhibit PM-1, Tab 35, Intelligence Report 001/19, p. 348; Exhibit PM-1, Tab 12, Judgment of Magistrate Sheedy, p. 126.

m. On 15 July 2018, the defendant wrote the word “ISIS” three times on the wall of his cell using his blood (footnote omitted); and

n. On 30 March 2020, the defendant is reported to have [threatened] to “shoot up” the Youth Justice office [28] .

28. Exhibit PM-1, Tab 24, Selected CIMS notes, p. 226; Exhibit PM-1, Tab 49, Update Report for Parole Revocation Review Hearing, p. 464.

58. On 31 March 2020, the defendant entered Youth Justice Custody. The case notes reveal a severe deterioration in his mental state and behaviour, including:

a. On 1 April 2020, the defendant physically assaulted and spat at a Youth Justice Officer [29] ;

29. Exhibit PM-1, Tab 26, Incident Advice, p. 285.

b. On 2 April 2020, the defendant was transferred to Frank Baxter Detention Centre. During a room search, he yelled out to another detainee and threatened to stab him [30] ;

30. Exhibit PM-1, Tab 24, Selected CIMS notes, p. 228.

c. On 3 April 2020, the defendant made threats to assault and kill an inmate at the Centre. He reported hearing voices that were telling him to ‘kill and hurt people’. He was required to wear handcuffs during exercise periods as a result of his recent staff assaults; (footnote omitted) and

d. On 4 April 2020, the defendant stated that he could hear voices telling him to hurt people, dogs barking, and that he saw people ‘killing each other with knives’. [31]

31. Exhibit PM-1, Tab 24, Selected CIMS notes, p. 230.

59. On 7 April 2020, the defendant was transferred to adult custody, initially being placed at the Metropolitan Remand and Reception Centre and then to the Metropolitan Special Programs Centre at Long Bay on 12 May 2020.

60. On 8 April 2020, he was placed on a SMAP direction for 12 months and on 15 April 2020, the Commissioner approved the defendant’s National Security Interest designation. [32]

32. Exhibit PM-1, Tab 25, OIMS Case Notes, p. 243.

61. The OIMS case notes contain a multitude of reports of self-harm by the defendant which include banging his head against the wall (once becoming unconscious as a result), cutting his arm with a razor, swallowing a razor blade, tying ligatures around his neck, etc.

62. On 3 June 2020, in relation to the defendant’s parole proceedings, Magistrate Sbrizzi determined that, pursuant to s 61 of the Children (Detention Centres) Act 1987 he was unable to be satisfied that the defendant would not engage in, incite, or assist others to engage in, terrorist acts or violent extremism under the terms of the proposed parole order, or in the future. [33]

33. Exhibit PM-1, Tab 22, Notice of Parole Order Determination, p. 203.

63. Despite his Honour’s observation that there was little cogent evidence that the defendant currently holds any affiliation with others who support terrorist acts of violent extremism, there is some suggestion that he may be the father of a child whose mother is the sister-in-law of Damien Featherstone. [34] His Honour remarked that this was a matter warranting further investigation as it is a potential risk factor for the community and accepted the findings of Dr Yolisha Singh that the defendant poses a moderate risk of engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism.

34. The plaintiff notes that the transcript of this hearing is not yet available, and the basis of this summary comes from a Crown solicitor’s observations which can be made available.

64. His Honour raised concerns with the defendant’s current mental health instability and noted that even if there was some stabilisation in his mental health, he would not be confident that the defendant would be compliant with parole conditions due to his history of non-compliance. His Honour found that the defendant’s release to parole was not in the interests of safety to the community and ordered that the defendant would serve the remainder of his sentence to 17 July 2020.

65. It is noted that since this determination, the defendant’s cell was searched and a handwritten note [35] was located detailing the costings of different firearms and drugs.

35. Exhibit PM-1, Tab 38, Handwritten Note, p. 368-369; see also Affidavit of Gabriel Assaad sworn 10 July 2020.

66. The note includes, inter alia, the following notations:

Miniture [sic] AK’s x 2

glock 4 mill x 2

4 boxes extended clip x 2

Silencer x 2

x 2 22 sawn off

x 2 double barrell

x 2 machine guns

x 2 extended clips

$50 grand for ?

Glock, miniture [sic] AK 22

rosco, ball of gear, Ball of Ice, Ball of MDMA, Ball of Coke

x 40 silencers

Doubel [sic] barrell shotgun

9 millimitter [sic] x 12 sticks of [illegible] for 1600

rosco mini

glock mini

box of bullets

2 x hand gun

2 x machine guns

2 x pumpys

2 x auto [illegible]

9 mill glock extended clip

Silencer and boxes of [illegible]

rosco 6 boxes of ammo

glock semi automatic

revolver;

machine gun 4 or 9 mill glock extended clips silencer loaded + 2 boxes of ammo

67. In addition, there are what appears to be numerical calculations of the expected cost of such items.

68. Further to this, on 21 June 2020, an OIMS case note records that the defendant stated ‘Take me to Goulburn Supermax, I want to be with Bassam Hamzi. I am a terrorist, and I’m a NSI inmate’. [36]

36. Exhibit PM-1, Tab 25, OIMS Case Notes, p. 273; see also Affidavit of Rhys Hayne affirmed 10 July 2020.

25. Without any criticism, I observe that the focus of this summary is upon the defendant’s history of offending and conduct the focus of this application. Some of that conduct is listed under the heading: “incidents in custody related to the defendant’s violent extremism”, a conclusionary heading I consider to be without real basis and contrary to other evidence, in particular, the assessments by psychiatrists and psychologists. I add to those important matters, other important matters, in particular the nature of the defendant’s psychiatric diagnoses, the timing and nature of the flare ups of florid illness and the orders and arrangements made that reflect the extent of the defendant’s mental illness and his cognitive disabilities.

26. On 25 July 2017, Dr Joanne Shannon consultant forensic psychiatrist wrote a letter referring the defendant to Dr Kasinathan at Austinmer Adolescent Unit in which she noted that the defendant presented as:

“emotionally dysregulated, reacting impulsively and aggressively when he perceives he is mistreated. He has at times reported auditory hallucinations to harm himself and his actual self-harm has at times been significant, resulting in a deep laceration to arms and legs and also banging his head on the wall. His perception may be partly reality based as he can be very difficult to manage and JJ staff have needed to use force and to keep him in confinement…”.

27. On 1 August 2017 the defendant was admitted to Austinmer Adolescent Unit for five weeks. During that period he was diagnosed as having schizophrenia, a form of psychosis, post-traumatic stress disorder and conduct disorder.

28. On 4 June 2018 an application was made to the Mental Health Review Tribunal for a Forensic Community Treatment Order. That order was made on 6 June 2018 and in place for six months.

29. In September 2018 the defendant was diagnosed by Ms Porter, psychologist, with what was described as a “mild intellectual disability” that places him, via the Wechsler Adult Intelligence Test in the tenth percentile for peers of his age.

30. On 19 February 2019 the defendant was admitted again to Austinmer Adolescent Unit due to his risk of self-harm and harm to others in Cobham Juvenile Justice Centre where he was residing at the time. It was noted that on presentation to the unit he displayed hypervigilance, pacing and distractibility. He reported thoughts of self-harm and Dr Kasinathan noted:

“…initially when acutely agitated he would voice thoughts of committing terrorist acts which are interpreted by staff to be impulsive and vague threats without any intentional plans. In subsequent weeks, he gradually improved in his behaviour and renounced any terrorist affiliations.”

31. On 14 November 2019 a VERA – 2R Indicators Form was completed on interview of the defendant. The overall assessment, having evaluated various indicators, concluded potential “risk judgments” on overall categories of “low”, “low-moderate”, “moderate”, “moderate- high”, or “high” concluded that the defendant’s risk was “moderate”. This overall conclusion is the same as that reached by Dr Singh in May 2020 as stated in her report.

32. In March 2020 it is reported that the defendant ceased his oral antipsychotic medications due to unbearable side-effects which comprised, amongst other things, faecal incontinence, but he continued to receive his depot medication. [37] At this point he relapsed into illicit drug use and started to associate with antisocial peers.

    37. The CIMS case notes: Exhibit PM-1, pg. 224.

33. On 1 April 2020, having been re-committed to Cobham Youth Detention Centre the defendant tied a shirt around his neck, stated he wanted to kill himself, ran towards a Youth Justice officer and attempted to punch him, and was later observed to tie his track pants around his neck, then became exhausted and fell asleep. Later when directed to get dressed for transfer to another detention centre, he spat on the officer.

34. On 4 April 2020 the defendant disclosed to staff that he was “hearing six voices and the dogs barking again but this time he could see things … people killing each other with knives.” He asked for medication which was dispensed by the nurse.

35. On 7 April 2020 the defendant was transferred to Corrective Services NSW custody apparently pursuant to an order under s 28 of the Children (Detention Centres) Act 1987 (NSW). The submission to the Commissioner which seems to have underpinned this transfer, authored by Ms Geddes, Manager, Young Adult Offender Programs, dated 2 April 2020 states, amongst other things, that the defendant appeared to be “highly volatile and presents as a risk to himself, other detainees and staff. He has an intellectual disability, a personality disorder, suffers a PTSD type disorder, is mentally unstable, has schizophrenia and a conduct disorder.” She then stated:

“It is strongly suggested GB requires a holistic assessment by state-wide disability services, a psychiatric review, a full medical assessment and following these assessments a robust behaviour management plan as well as pharmacology intervention to stabilise at his mood disorder if diagnosed.

GB is an 18-year-old aboriginal young man with a long negative criminal history.

GB has a terrorism reference noting numerous statements in 2017 and 2018 in regards to supporting ISIS and threats towards staff as well as an association to an earlier offender Featherstone who has prior links to Hamze. CIG would like to pursue an NSI designation purely for the control and monitor communications but agree that his mental health and other issues are a primary consideration.”

36. On 29 April 2020 it is recorded that the defendant was engaging in self-harm and making threats to staff.

37. On 6 May 2020 the defendant told Community Corrections that he did not take his medication because he “felt like a zombie, drooling and experiencing incontinence” and reported that he attempted to seek assistance, including advising Ahmed, (which he confirmed), however he was not being helped”. Youth Justice was aware that he was experiencing faecal incontinence. [38]

    38. Cross-examination of Marcelle Jordan, Exhibit PM-1, Tab 19, p. 165.

38. On 8 May 2020 the defendant was assessed by Dr Singh.

39. On 12 May 2020 the defendant was placed in the Acute Crisis Management Unit at Long Bay Hospital.

40. On 16 May 2020 the defendant was reported as having auditory hallucinations and engaged in self-harm.

41. On 18 May 2020 Marcelle Jordan prepared a report stating the defendant’s “recent period of 12 weeks parole was his most successful in the community to date.” The report noted that GB’s behaviour began to deteriorate after an altercation at rugby league.

42. On 21 May 2020 the defendant asked to be transferred to the Forensic Hospital because “he feels safe there.” He also reported the medication was “not helping” him. He engaged in further acts of self-harm in the following days. [39]

    39. Exhibit PM-1, Tab 20, p. 50; MSK’s notes at p. 251-258; Report of Dr Singh; Risk Intervention Report of Shane Bagley at p.113.

43. On 28 May 2020 the defendant was placed in the Acute Crisis Management Unit and the following day told staff he was “pleased” about his placement. [40]

    40. Exhibit PM-1, Tab 20, p. 50; MSK’s notes at p. 258.

44. On 4 June 2020 the defendant attended a hearing before the Mental Health Review Tribunal. He refused to have any legal assistance. The Tribunal considered whether he should be placed on a Forensic Community Treatment Order pursuant to s 67 of the Mental Health (Forensic Provisions) Act 1990 (NSW). On 19 June 2020 he was placed on a Forensic Community Treatment Order for a period of 12 months. That will be converted to a CTO if released from custody, whether under an ESO or not.

45. Between 19 and 24 June 2020 the defendant engaged in further acts of self-harm.

46. On 22 June 2020 the defendant told staff that he has issues with his medication and is struggling with it. He later tried to cut his face with a piece of dry paint and tried to insert a piece of flooring into his penis.

47. On 24 June 2020 the defendant was observed trying to swallow a plastic bag, a paper spoon, a teabag and head-butted a wall.

The 2 pages of notes found on 15 June 2020 in GB’s cell

48. Contrary to the impression that may be given by the orderly list set out in [66] of the State’s written submissions, the two pages of notes found during the cell search on 15 June 2020 comprised a scribbled, disorganised collection of messy, childish handwriting with scribbled crossed out notes regarding sums of money as well as lists of drugs noted as “ball of gear”, “2 ounces of pot”, “ball of ice”,” ball of MDMA”, “ball of Coke”. The handwriting is untidy and written in various directions with a lot of scribbling and crossing out.

49. There is no evidence before me that the handwriting belongs to the defendant. The State submitted that I should infer that it was the defendant’s handwriting and that he had written the note. At the least it was submitted that I should infer that he was in possession of the note and had in effect knowledge of what was in it.

50. The evidence as to the discovery of the note comes from a Correctional Officer, Mr Assad, who says that he carried out a cell search as directed on 15 June 2020: “GB was occupying the cell at the time. As I approached GB I saw that he had scrunched up handwritten notes in the cell. It appeared to me that GB had been in possession of these notes inside his cell. I said words to the effect ‘What are those papers?’. I do not recall what GB said in response.”

51. Even taking this evidence at its highest, I have real doubts about whether I should draw either inference suggested by the State. There is some basis for inferring the latter suggested inference given the apparent location of the notes in his cell – which I am told is a one-out cell, but no valid basis in my view for inferring the former.

Section 25(3) mandatory factors to consider

52. Division 2.4 of the Act sets out the requirements for determination of an application for an ESO. Section 25(1) provides that the Court can determine an application by making the order or dismissing the application.

53. Critically, s 25(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Supreme Court.

54. Section 25(3) sets out the matters to which the Court must have regard. At this preliminary hearing stage some of the parameters have not yet been the subject of evidence, for example there are no reports from persons specifically appointed by the Court to conduct examinations of the offender.

55. To the extent that there is material available addressing these mandatory matters, I will refer to it at the level of detail I consider critical to my determination of this application. Given the very short turnaround time required of this judgment, not every aspect of all the 1000 plus pages of material tendered can be the subject of reference or comment.

Section 25(3)(b): Assessments of psychiatrists, psychologists or medical practitioners as to the likelihood of the offer committing a serious terrorism offence, and his cooperation with assessment; s 25(3)(c) the results of any assessments as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence.

56. Dr Singh psychiatrist assessed the defendant in May 2020. She determined after a thorough examination of his social and psychiatric history, and an analysis of the various domains and 34 risk indicators set out in the VERA-2R assessment tool, that the defendant is a moderate risk of engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism.

57. Dr Singh stated that the VERA-2R is short form for “violent extremism risk assessment” tool which she explained was structurally developed for the individual assessment of the risk of those persons inspired by any beliefs, principles or philosophy that fall within the spectrum of ideologically motivated violence.

58. Significantly Dr Singh, in completing the assessment tool, rated the defendant low on commitment to an ideology that justifies use of extreme violence, dehumanisation, rejection of social norms and values and hostility to the national identity.

59. Relevantly, Dr Singh noted that despite the defendant’s apparent conversion to Islam in early 2016, he was unable to describe his religious beliefs at interview in any depth. He appeared not to understand what was meant by the question “What does it mean to be a practising Muslim” beyond the response that one had to attend Mosque and learn to be patient, peaceful and respectful. When prompted, he said that his Islamic mentor taught him about religion, taking him to Mosque and meeting good people.

60. Dr Singh however noted that the defendant is highly susceptible to influence, control and indoctrination and seeks a sense of belonging, family and connectedness to peers and that he is susceptible to the manipulation of others. She also observed that his psychotic illness and attendant delusional beliefs also potentially intensify his vulnerability to violence.

61. He did not identify any target for any proposed terrorist attack and when asked about ISIS stated that he did not even know about ISIS, “I didn’t know the Brothers for Life was about ISIS until court”; “I just wrote it on the wall in Juvey to threaten them YJ workers because they hurt me and disrespected me”. He explained that the threat he made to blow up the Juvenile Justice office was because he was frustrated and angry and that “they call every day they ask stupid questions”. He also explained that stopping his medication and getting on the drugs made him more easily frustrated and quick to anger.

62. Dr Singh took the view that the expressions by the defendant to commit acts of violent extremism were expressed when he felt angry, scared or emotionally dysregulated and he has not made any firm commitment to engage in acts of violent extremism.

63. It is important to observe that Dr Singh was given a vast amount of material including the various events and threats described.

64. Dr Singh also offered the view that on the available evidence the defendant does not appear to be a seeker or developer of violent extremist materials.

65. Dr Singh noted various protective factors, including that the defendant had worked well with his theological mentor and participated in the ESP program against violent extremism. She also noted that his sisters are people who empower him to keep him out of trouble and love and support him.

66. In her July 2020 supplementary report, Dr Singh concluded that the defendant’s VERA-2R assessment remained unchanged and stayed in the moderate range. She reached this view despite being aware of the note found in the defendant’s cell, listing weapons and drugs with monetary amounts.

67. Dr Singh concluded that there was no evidence to support the defendant’s willingness to die for a cause or belief and that the statements he made about requesting transfer to Goulburn Supermax to be with Bassam Hamze (21 June 2020) was in the context of a heightened emotional state and a recent history of auditory hallucinations.

68. Dr Andrew Ellis, psychiatrist, prepared a report for the Children’s Court in July 2018 in the context of an application to revoke the defendant’s parole. He expressly considered the 12 incidents of apparent extremist related conduct between February 2017 and 7 June 2018. Dr Ellis observed that the defendant did not know much about ISIS or terrorist groups associated with Islam. He stated that the defendant told him that he had made statements about ISIS and outlaw motorcycle gangs so the Juvenile Justice workers would “get scared and listen to me” and that he was “angry and wanted to scare people”. Dr Ellis also observed that the defendant showed a limited understanding of the Islamic faith.

69. Dr Ellis concluded that the defendant met the diagnostic criteria for schizophrenia, substance use disorder and conduct disorder and that he then displayed a number of risk factors associated with future interpersonal violence.

70. Dr Ellis recommended continuation of the depot medication and transfer of his FCTO to a Community Treatment Order, should he be released.

71. Dr Ellis concluded however that the defendant did not share many of the characteristics associated with terrorist related violence, and reached a conclusion (not dissimilar to that of Dr Singh, although her conclusion was some years later in 2020), that the defendant used terror related imagery and statements most likely related to his anger at staff and relative lack of power in the situation he finds himself in.

72. Dr Kasinathan, psychiatrist conducted a risk assessment as part of a Mental Health Progress Report by the Adolescent Mental Health Unit Treatment team in July 2019. He recorded a number of observations about the defendant including the following:

• the defendant has not sought or tried to possess extremist materials from any media or other sources;

• the defendant has repeatedly renounced any support for an ideology that justifies use of violence to achieve ideological goals;

• past threats made to JJ workers were genuinely retracted. He admitted to making threats due to feeling angry and being subject to punitive measures for example solitary confinement for 23 hours a day;

• he has attended regular sessions with a Muslim tutor with a great deal of focus on peaceful Islam;

• he has voluntarily and actively participated in programs for nonviolence;

• he is not motivated to participate in extremist violence due to perceived religious obligation.

73. Dr Kasinathan also took the view at the time of assessment that the defendant’s history of impulsivity, irresponsibility, irritability and aggression had improved over the last 5 months during which he was engaged with pro social supports.

74. Steven Barracosa, psychologist, assessed the defendant and prepared a report in November 2019. He noted improvements in the defendant while he resided at the Forensic Hospital and maintenance of those improvements, with no more incidents of aggression and self-harm. He reported that the defendant wanted to renounce his Muslim beliefs:

“When questioned regarding this, GB stated he wanted to distance himself from extremism and believes that no longer being Muslim would assist in this regard. During 2019, GB has received religious support and guidance through theological mentoring facilitated by the Engagement and Support Program (ESP) and GB stated that as a result he can now separate the two concepts. He specifically reported that his religion is peaceful, while extremism is not.” [41]

41. (FN p 8.5 Barracosa report)

75. Mr Barracosa concluded:

“It is beyond the scope of this report to provide an assessment of GB’s extremist violence risk factors. It is however noted that when reflecting upon Islamic extremism, GB suggested that he “doesn’t believe in that stuff no more”. It is also important to note that GB has not made any statements of a violent extremist nature for approximately 12 months. He stated that he no longer viewed this as being a legitimate way of meeting needs and reflected that at present he did not feel unsafe and was not experiencing any form of injustice, which he linked to his past use of statements of an extremist nature.”

76. Mr Johnston SC tendered a VERA-2R Indicators Form dated 14 November 2019 that was commented upon by Mr Barracosa in his Report of 28 November 2019. Mr Barracosa carried out a comparison with the previous VERA-2R completed 12 months before, noting that the primary extremist violence risk factors that remain outstanding for GB are his susceptibility to influence, control or indoctrination as evidenced through his lack of a stable personal identity, as well as his history of antisocial and criminal behaviour and violent criminal history due to his prior criminal offending. It also noted that he has personal contact with violent extremists and a “network of family and friends involved in violent extremism”. That he telephoned an alleged extremist associate during his most recent brief period on parole is noted, as is his reduced ratings of “moderate” recorded in respect of a number of indicators that were previously considered more significant risk factors.

Section 25(3)(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

77. A report prepared by Mr Bagley dated 7 July 2020 set out various support structures he recommended which included face-to-face contact, weekly at a minimum, encouragement to seek employment and maintenance and engagement with his FCTO which would be converted to a CTO if released from custody. Mr Bagley identified a number of other matters (that underpin the proposed package of ESO conditions) including a schedule of movements that he noted as “necessary to manage the defendant’s identified risk factors” and that he needs to have electronic monitoring to ensure that he adheres to a schedule of movements. Interestingly a number of the matters referred to by Mr Bagley are directed to mitigating the “risks of any acts of violence” being committed by the defendant which in my view underpins the problem with the State’s patriarchal approach to this application, rather than a real identified risk that the defendant will commit a terrorism offence as defined.

78. One matter Mr Bagley raised is the need for the defendant to be prohibited from having a firearm or weapon. I note that this has now been accomplished by the orders made under ss 73 and 74 of the Firearms Act 1996 (NSW) and the related powers of police to search for firearms in possession of a person subject to a Firearms Prohibition Order (under s 74A). Whilst the order was not tendered, I was informed in Court, and I accept, that the order was made on 15 July 2020.

79. In addition, a Weapons Prohibition Order under s 33 of the Weapons Prohibition Act 1998 (NSW) was also made. My understanding of the effect of this order is that under s 34 of that Act, in the absence of proof to the contrary, any prohibited weapon found on any premises the defendant is occupying is deemed to be his.

80. Mr Bagley concluded that the defendant can be reasonably and practicably managed in the community under a supervision order, if his mental health is stable.

77. There is no suggestion that any part of the Corrective Services team that would manage the defendant in the community were I to make the ESO, would be a trained mental health care worker such as would be provided under a Community Treatment Order.

Section 25(3)(f): treatment or rehabilitation programs

82. As highlighted in the written submissions of the defendant, the initial threats of an extremist nature were said to have taken place between February 2017 and July 2018. This led to an application to revoke the defendant’s parole.

83. The defendant gave evidence at the parole proceedings in July 2018 and some of the transcript is before me on this application. He denied any intention to commit a terrorist act and seemed to offer the position that he said those things without meaning them.

84. Mr McHugh SC submitted that I should treat that evidence with circumspection and, in effect, not believe it. That is a difficult position to take when I did not have the opportunity of observing the defendant’s demeanour however the denying of any real intent is consistent with observations made by psychologists and psychiatrists who interviewed him between 2018 and as recently as May 2020.

85. The defendant consented to participate in the ESP in August 2018. The report of his involvement in that, dated 20 April 2020, authored by Mr Donald indicates that the objective of the ESP is to reduce the risk of violent extremism in New South Wales by assisting individuals to disengage from behaviours and negative influences that may lead to violent extremism. He noted that the defendant was engaged in the program and prior to COVID-19 had weekly face-to-face engagement with his mentor as well as telephone contact.

86. The author observed that he had known the defendant for many years and had seen progress with him since his discharge in January 2020. It is noted that the ESP mentoring program will continue to be available to the defendant without making an order under the Act.

Section 25(3)(g): options available if the offender is in the community that might reduce the likelihood of him reoffending over time

87. Mr Johnston submitted that there are a series of options available to the defendant in the community that might reduce the likelihood of him reoffending over time. There were six different categories of professional assistance identified:

1. the community treatment order with access to properly qualified mental health professionals;

2. FACS will provide a Youth Justice worker until the defendant is twenty-five;

3. NDIS has approved the allocation of 5 hours of daily support and Ms Testa is available as his mentor by phone;

4. the ESP program, which has shown to be positive and protective to date;

5. the guardianship order and the financial management orders in place to assist with managing accommodation and his financial affairs;

6. The salutary and overriding effects of the Firearms Prohibition Order and the Weapons Prohibition Order which will be enforced by the Police.

88. A primary consideration is the appropriately qualified expertise that would be provided locally for the defendant under the community treatment order which is in place for twelve months. The treatment plan appended to the affidavit of Todd Davis sworn 14 July 2020 indicates that there will be a psychiatric case manager or delegate to meet with once a month, that the defendant will be given three weekly depot injections, that the frequency and timing of appointments with the case manager and treating doctor or delegates may be changed by the psychiatric case manager or the treating psychiatrist and that he is by the order required to accept the treatment and/or medication as prescribed and/or varied by the treating psychiatrist or delegates. The defendant is required to comply with blood tests and relevant monitoring, and to provide the urine sample for urine drug screen more than once a month as requested by the case manager or his delegate. It is well known that under the Mental Health Act 2007 (NSW), if the defendant does not comply with the CTO he can be arrested and detained in a mental health facility.

89. It is true there is a long list of medications only one of which is administered by depot, the others requiring a daily night-time dose. It is submitted by Mr Johnston SC that the failure to take medications, particularly if becoming mentally unwell, should not be criminalised and should be managed by the assistance and professional input of persons appropriately trained to deal with people who are mentally ill like the defendant.

90. There was also reference to the positive and protective factors of his association with his family, and in particular his sisters who will be living near him in Merrylands upon his release.

Section 25(3)(h): the likelihood that the offender will comply with the obligations of an ESO

Section 25(3)(i): previous compliance with obligations under parole conditions

91. Mr Johnston SC conceded that the defendant has a poor history of compliance with parole and is unlikely to comply with an ISO or ESO. However the risk of non-compliance is not because of his risk of committing a serious terrorism offence but rather a risk of more generalised non-compliance or offending.

92. Mr Johnston SC submitted that this Court should bear in mind the reality of relatively minor breaches of an ESO being dealt with by criminal punishment, namely, incarceration. An example of this problem was illustrated in a recent decision of Hamill J in State of New South Wales v Carr [2020] NSWSC 643.

93. This Court should bear in mind, Mr Johnston SC submitted, that the defendant’s mental health issues increase the risk of failure to comply with the strict conditions proposed by the State, particularly given his difficulties outlined by Ms Hull, psychologist, as difficulty adjusting to changes in routine, problems with receptive language skills that make it difficult for him to understand and accept change, and his difficulty with expressing himself which leads to aggressive behaviour and self-injury.

94. Mr Johnson SC emphasised that the strict regime proposed under the ESO sets him up for failure and further incarceration.

Section 25(3)(l): beliefs or commitments of the offender whether of an ideological religious political social or other nature that support engaging or participating in terrorism activities

Section 25(3)(m): any other information available as to the likelihood that the offender will commit a serious terrorism offence

95. Despite the defendant articulating statements that may imply that he has beliefs or commitments of an ideological, religious or political kind that support engaging or participating in terrorism activities, I maintain a significant reservation about whether those utterances have any ideology of any kind behind them.

96. The State emphasised, as it should, that in addition to those utterances the defendant has as a matter of fact converted to Islam and was “converted” by two detainees, albeit as juveniles, who are known to be persons engaged in terrorist activity.

97. That, combined with what has been repeatedly referred to as the defendant’s vulnerability to being manipulated, and “seeking contact with Mr Hamze” and having fairly long term contact with Damien Featherstone, the Court should hold concern about risk. There is an appropriately held significant concern by the State about the defendant’s association with Mr Featherstone, particularly as GB was arrested in the company of Mr Featherstone in possession of a loaded .357 calibre revolver in October 2017. Also in the foot well of the front passenger seat of the car they were in at this time was 10 rounds of ammunition appropriate for that revolver. I should also note the car was registered to Mr Featherstone’s partner, Ms Sebbens.

98. Having said that however, whenever questioned by experienced personnel in an effort to find out whether the defendant actually holds an ideological basis for the things he has said, and the associations that he has, he is unable to articulate anything that betrays any ideology or belief that supports engaging or participating in terrorism activities and the professional assessments are to the effect that he probably does not hold any such beliefs.

99. Dr Singh stated her opinion is that the defendant has not made any firm commitment to engage in acts of violent extremism and his historical statements were made at times when he was angry, scared and emotionally dysregulated.

100. The more recent statements, as submitted by Mr Johnston SC were made in the context of significant mental health issues, including self-harm. His statement to “shoot up the juvenile justice office” was made without any ideological intent. The request to be transferred to “Goulburn Supermax" as he is a "terrorist” was made in the context of placement in an observation cell and self-harm.

101. Countering those submissions is the State’s concern evidenced by various intelligence reports and documentation tendered on the application, that persons with whom the defendant has been in contact and has associated with, are significant terrorist concerns. This is a reasonable concern to have regarding Mr Featherstone and perhaps to a lesser extent WE, HG and DM. It seems however that all those nominated individuals are in custody for a long period due to other criminal offending and so the prospect of the defendant realistically being instructed or manipulated by them, seems somewhat remote. This does not remove risk of course, but it ameliorates it.

102. There was frankly a level of obfuscation around the significance or otherwise of the defendant’s contact with Ms Sebbens when he was released from custody in September 2019. Ms Sebbbens is I understand the life partner of Mr Featherstone. There is evidence that suggests that the defendant’s girlfriend is actually Ms Sebbens’ sister. The State was unable to point to any evidence that indicated that Ms Sebbens herself is a terrorist risk or threat. The basis of objection to the defendant’s contact with her, which included a breach of parole by staying there overnight – was not that he was not permitted under his parole conditions to contact her at all. The complaint seems to be confined to her being the partner of Mr Featherstone. I do not consider, based on the evidence before me, that the defendant’s contact with Ms Sebbens in September 2019 was sinister in the circumstances, even combined with the fact that upon release he made a phone call to Mr Featherstone. The evidence states that the defendant did not discuss anything of note with Mr Featherstone. In 2018 he sent a letter to Mr Featherstone which was intercepted by Youth Justice officers that included the ambiguous line “when I get out you need me to do anything for you?”. Nothing can be drawn from that in my view.

103. There is no evidence at all of any contact between GB and Bassam Hamze, although the State in their submissions repeated a claim made by GB to Dr Singh that he had had phone contact with Mr Hamze. I accept the defendant’s submission that this seems highly unlikely given that Mr Hamze has been in custody since before GB was born and is currently being held in the High Risk Management Unit at Goulburn. Mr Hamze is currently serving a life sentence and there is very little chance of any contact with GB ever occurring.

104. In an Intelligence Report referring to an interview of GB by the Corrections Intelligence Group on 10 April 2020, GB was questioned about his religious beliefs. He stated that he was Muslim and that he converted approximately 3 to 4 years ago whilst in custody. When asked which sect he adhered to he stated that he followed “the popular one”, appearing not to know the difference between Shia and Sunni Islam. He indicated he did not practice the religion while in the community. It was noted by the interviewers that he exhibited very little knowledge around the religion. When asked about religious matters, he identified a particular person as a mentor and stated he had received bad religious advice from another identified person but declined to go into further detail.

105. Under the heading “Local analysis”, the report refers to “external source information” noting that:

“Whilst GB identifies as being Muslim, he does not participate in religious practices, which suggest his conversion to Islam is not genuine. Despite this GB is associated with persons known for terrorism, has attended a Mosque in the community and appears to support the ideology of Terrorist Organisation IS. The information indicates GB remains a risk of being a recurring violent offender, however, the offences are not likely to occur in a terrorism context...”.

Am I 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?

106. Whilst I have dealt with the various arguments raised by the State and the defendant throughout this judgment, the State collected what they termed a summary of the factors underpinning the unacceptable risk of committing a serious terrorism offence if not supervised under an ESO that the defendant presents:

“a. As set out above, the defendant has made numerous statements purporting to affiliate himself with “ISIS”, “Brother’s for Life”, using the term “eye for an eye”.

b. The defendant has made statements threatening to commit acts of violent extremism and terrorism.

c. The defendant has labelled himself a terrorist.

d. The defendant has known affiliations with Damien Featherstone and WE, as well as claiming to know Bassam Hamzy and wanting to be in Goulburn correctional facility with him.

e. The defendant’s personality traits render him susceptible and vulnerable to influence from others, including those who hold extremist views. If he encounters such persons in the community who hold extremist views and beliefs, he may be influenced to act, either to fit in or to prove he is someone to fear.

f. The risk of him being influenced will increase with failure to comply with his medication for his schizophrenia and if he were to continue to use substances in the community.

g. He has a long-standing history of illicit substance use. He continued to use substances in his most recent release to the community which may have contributed to his decision making in breaching the conditions of his parole, rendering him back in detention.

h. He has a propensity for violence and violent offending and has been assessed at high risk of further violent offending.

i. He has a history of possessing firearms and weapons and the recent note found in his cell lends to an inference that he may be intending to obtain or access weapons which if used in an act or terrorism or violent extremism could have a severe impact on the safety of the community. His possession of a 30cm knife when most recently on parole is of concern and in combination, these factors would tend to increase the severity of the consequences of the risk he poses.

j. the note recently found in his cell may be indicative of a level of planning that has not previously been noticed or reported on by Juvenile Justice, Corrective Services or the defendant’s treating medical practitioners.

k. His offer in his intercepted letter to Damien Featherstone and his desire to be connected or affiliated with organised criminal networks such as ‘Brother’s for Life’ increases the risk that he will access weapons in the community.

l. He has a longstanding sense of grievance and injustice against authority figures. A large proportion of the threats and his previous violent offending relate to persons in positions of authority or acts of terror or extremism against the physical offices. In these circumstances, there is a risk that the defendant will act upon a perceived grievance, in particular against persons in a position of authority, on the basis of extremist influence, and will commit a serious terrorism offence.

m. His schizophrenia, when untreated, results in hallucinations that the defendant reports include voices telling him to harm or kill others. His longstanding non-compliance with medication, both in and out of custody, would tend to increase the severity of the risk he poses.” [42]

42. Plaintiff’s written submissions, p. 45 at [165], [a]-[m].

107. I have borne in mind the matters set out in [17]-[20] of Annexure A to the State’s submissions as to the “lower hurdle” in place at the preliminary hearing stage and that the Court is not involved in weighing the supporting documentation or predicting the ultimate result.

108. In my view the matters identified in [a]-[m] above go beyond what the evidence supports even accepting the evidence at its highest. The factors listed contain inferences that are in my view not available to draw and overstatements of the significance of the material presented in this application.

109. Additionally, the State submitted that although the risk has been assessed to be moderate by those who applied the risk assessment tool, a risk assessment of moderate is significant and when regard is had to the above-mentioned factors, the consequences of such a risk materialising would be serious. A moderate risk of a serious consequence would be unacceptable.

110. As noted in Mr Johnston SC’s submissions, in addition to what was set out in [29] of State of New South Wales v Naaman (No 2), which has been reproduced in [20] of this judgment, it is useful to note the Court of Appeal’s emphasis at [39], [63]-[66] and [69]-[70] of the need to establish a risk of violence done with the intention of advancing a political religious or ideological cause and the coercing or influencing by intimidation, a government or a section of the public.

111. I accept the submission of Mr Johnston SC that there is a significant gap in the State’s application caused by the absence of any evidence to suggest that the defendant has the intention to commit a serious terrorism offence as defined by the Act. It is correct to observe that the defendant has never committed an act of terrorism and as discussed by Dr Singh and others including Dr Kasinathan, the defendant’s impugned statements are derived from his inability to control his emotions when his perceived needs in custody were not being met rather than evidencing any specific intent to commit a terrorism offence. Dr Ellis holds the same view.

112. I accept the submissions of Mr Johnston SC that uttering statements capable of satisfying the test under subsections 10(1)( c )(i) and 10(1A)(iii) of the Act is very different from actually having an intention to commit an act of terrorism, including a relevant intention that the action is done or the threat is made with the intention of advancing a political religious or ideological cause.

113. I am not satisfied that the evidence supports a finding that there is a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

Orders

114. I make the following orders:

1. The summons is dismissed

2. The plaintiff is to pay the defendant’s costs

**********

Endnotes

Amendments

23 July 2020 - Paragraph 100 - Punctuation amended

Paragraph 111 - Typographical error (name of doctor) corrected.

Decision last updated: 23 July 2020