State of New South Wales v Hickey (Preliminary)

[2022] NSWSC 1498

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Hickey (Preliminary) [2022] NSWSC 1498

Hearing dates:

24 October 2022

Date of orders:

4 November 2022

Decision date:

04 November 2022

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) The Summons is dismissed.

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

Catchwords:

TERRORISM HIGH RISK OFFENDER – preliminary hearing – application for an interim detention order and the appointment of experts – Terrorism (High Risk Offenders) Act 2017 ss 34, 41 – weapons offences – whether offender poses unacceptable risk of committing serious terrorism offence – propagation of extreme right views and material online – grievances with government and the judiciary – offender has no connection with NSW – speculative “risk scenarios” vis-à-vis “serious terrorism offence” under the Cth Code – offender’s extreme views have long history and are persistent – requisite degree of satisfaction of unacceptable risk not reached – summons dismissed

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW), s 158

Criminal Code Act 1995 (Cth)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Weapons Prohibition Act 1998 (NSW), s 7(1), Sch 1

Cases Cited:

Fair Work Ombudsman v Hickey (No 2) [2021] FedCFamC2G 80

Hickey v State Parole Authority [2022] NSWSC 1389

Home Affairs v Benbrika (2021) 388 ALR 1; [2021] HCA 4

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

R v Lodhi [2006] NSWSC 584

State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876

State of New South Wales v Elmir (Final) [2019] NSWSC 1867

State of New South Wales v Holt [2021] NSWSC 1076

State of New South Wales v Kiskonen [2021] NSWSC 915

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

State of New South Wales v Pacey (Final) [2015] NSWSC 1983

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754

State of NSW v Elomar (No 2) [2018] NSWSC 1034

State of NSW v Golding (Preliminary) [2018] NSWSC 1041

State of NSW v Naaman (No 2) [2018] NSWSC 1329

The State of New South Wales v Reginald Collingwood (a pseudonym) [2021] NSWSC 1365

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Simon John Hickey (Defendant)

Representation:

Counsel:
J Single SC with R McEwen (Plaintiff)
E Kerkyasharian with D Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s):

2022/275994

Publication restriction:

Nil.

JUDGMENT

1. By summons filed on 15 September 2022, the State of New South Wales (“the State”) seeks a continuing detention order (“CDO”) for a period of 12 months against Simon Hickey under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”). In the alternative, an order is sought that the defendant be subject to an extended supervision order for a period of three years (“ESO”).

2. Mr Hickey is a 46-year-old man who ascribes to a “far right” ideology. His views are long standing and firmly held; he appears to have held them since 1996. He is not a member of any extremist group, although he was the only corporate sponsor of “The Daily Stormer”, an American far right group website. He is an electrician by trade and up until recently ran a successful business in Brisbane employing 12 men. By all accounts, he is well-organised and highly motivated in his endeavours.

3. Up until 2018 Mr Hickey was a business owner with a minor criminal record, married with a child who, in his spare time, spent a considerable time online expressing hatred for women, homosexuals, Jews, Muslims and anyone else who was not a white male (although he has also expressed hatred for many white men including judges, magistrates and barristers). In doing so he has used far right memes, Nazi insignia, Nordic mythology and other language used by the far right. Although many of Mr Hickey’s posts are laced with violent themes, he had never been convicted of any violent crimes, despite holding these views for over 25 years.

4. Things began to unravel for Mr Hickey in 2018. His home in Brisbane was raided in 2017 by Fair Trading investigators following an allegation that he had illegally installed CCTV cameras. This event led to him being charged with intimidation against one of those investigators, Ms Siobhan Dash, who he perceived was targeting him for his (known) views. Those charges led to breaches by Mr Hickey (in the form of publication, not actual contact), which led to more raids.

5. Since 2019, Mr Hickey has spent short periods in custody for breaching restraining orders, contempt of court (including not paying a court fine imposed by the Fair Work Commission in relation to a former employee) and being in possession of prohibited items.

6. After his family home was the subject of several raids over a period of a year, Mr Hickey devised a scheme to get his revenge on Queensland (“QLD”) police. He manufactured (by using a 3D printer in his home) and sold caltrops, which are road spikes that can be dropped from a car onto the road to prevent another vehicle from chasing your vehicle. At the time he did so he was aware that caltrops were not illegal in QLD. He named this product “HikDeploy”. I shall describe that venture in more detail below.

7. Following his dealings with QLD police, he moved his family over the New South Wales (“NSW”) Border to Kingscliff where he resided with his wife and child for a short time before he was arrested for being in breach of his parole condition to remain in QLD. He was also charged in relation to the HikDeploy product at that time; although it is legal to possess them in QLD, it is illegal to do so in NSW. At around this time his wife and child moved to Russia. Mr Hickey has remained in custody in either NSW or QLD since that time.

8. Mr Hickey’s recent court and criminal history is somewhat complex, but I have attempted to summarise it below. He is currently serving a sentence of imprisonment of 18 months in relation to possession of the caltrops without a permit contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). That sentence will expire on 12 November 2022.

9. The most concerning action taken by Mr Hickey occurred on a date between 15 March and 1 April 2019. On 1 April 2019, a search warrant was executed at his home in Brisbane in relation to a breach of a restraining order (the act relied upon was posting of a video in relation to Ms Dash executing a search warrant at his premises) and traffic related offences. A recording was located by police titled “Ebba’s Revenge” which included footage of a massacre which occurred in Christchurch on 15 March 2019. On that day an Australian man, Brendan Tarrant, went on a shooting spree in two mosques in Christchurch killing 51 people and injuring 40 others. The gunman live streamed the killings. The footage was seen by millions online before it was taken down. Mr Hickey modified the footage of the massacre, made it appear like an online game, included “humorous commentary” and sent it in encrypted form to five people. In plain terms, he expressed approval for what Mr Tarrant had done and referred to it as a “prank”.

10. Mr Hickey has also produced another film entitled “How the Left has destroyed Australia”. Considerable time was spent at the preliminary hearing playing that recording, which goes for over an hour and a half. It is analysed in the expert report of Dr Julian Droogan and I have considered it further below. Excerpts were played in court and submissions made about those excerpts. It was submitted that I needed to watch all of that footage in chambers (which I did), but it was not submitted that I needed to watch “Ebba’s Revenge”.

11. Mr Hickey was due to be released on statutory parole on 12 February 2022, but his parole order was revoked on 11 February 2022 following his classification as an “National security inmate”. This led to him serving his entire sentence in custody. He is currently in a NSW prison although he has no connection with this state. It is proposed by the State that he spend another year in a NSW prison under a CDO. The alternative position is that he remain in NSW for the next three years under an ESO.

12. As required by s 38 of the THRO Act, a preliminary hearing was conducted before me on 24 October 2022. Ms Jennifer Single SC with Ms Rebecca McEwen of counsel appeared for the State and Mr Emanuel Kerkyasharian with Mr Dev Bhutani of counsel appeared for Mr Hickey. In addition to orders appointing a qualified psychiatrist and a registered psychologist to prepare reports about Mr Hickey, the State sought an interim detention order (“IDO”) for a period of 28 days. In the alternative, an interim supervision order (“ISO”) for a period of 28 days was sought. Those interim orders were sought until any final hearing in this matter.

13. For the purposes of the preliminary hearing only, Mr Hickey did not take issue with the statutory preconditions for making the order except for the “unacceptable risk” aspect of the test. It was submitted that the “unacceptable risk” test could not be established and that the summons should be dismissed with costs.

14. As Ms Single conceded at the hearing, this is a difficult matter. Mr Hickey has held extremist views for over 25 years without acting on them in a way that would harm the public. Quite separately to that, his recent interactions with police, Government officials and the courts in QLD have left him profoundly resentful of the legal system and State officials. The crucial question is whether Mr Hickey’s views and recent conduct meet the statutory requirements under the THRO Act such that he needs to be either detained or supervised to prevent him from committing an act of terrorism.

The supporting documentation

15. At the preliminary hearing last week, seventeen lever arch folders of documents were tendered. In addition, lengthy submissions and schedules were relied upon and a number of USBs tendered. In particular, the State relied upon the two recordings I have referred to above. I will discuss them further below. Many of the folders tendered on his preliminary application comprised extensive printouts of Mr Hickey’s online content over the past 12 years. Thousands and thousands of pages of his posts were tendered. It has simply not been possible to read all of that material for the purposes of this judgment. The State provided extensive summaries and submissions running to hundreds of pages. It is not feasible for me to reproduce those summaries in these reasons.

16. It is most unfortunate that this application could not have been put before the court in a more manageable way. The difficulty appears to have arisen from the fact that most of the material relied upon comes from Mr Hickey’s comments on online forums and social media platforms over many years. It is understandable that the State wanted to put as much information as possible before the court to put its case at its highest but when it tried to reduce the amount of material put before the court that course was opposed by Mr Hickey’s counsel. Mr Kerkysharian insisted that I have all of the materials as he contended that some of the posts extracted by the State in its submissions were taken out of context and I needed to read them all in context.

17. For the record, I have not read all 17 folders of material put before the court on this preliminary application. I was provided with insufficient time to do so. Having read as much of the material as I could, I have come to the view that much of it was highly repetitive. I have absorbed as much of this material as I could in the limited time available, but I have only had regard to matters which were identified and relied upon by the parties in their respective submissions. In particular, I have gone to all of the entries Mr Kerysharian contended were taken out of context and read them in context. Otherwise, I have confined myself to the summaries in the schedules tendered by the State.

18. The State relied upon the following affidavits and reports:

1. The affidavit of Robert Bermingham sworn on 13 May 2022 with exhibits “RB-1” (8 lever arch folders of PDF files of online searches) and “RB-2” (a USB containing the video content captured of online searches). He is a Senior Constable of police in the High Risk Terrorist Offenders Unit (“HRTOU”) of the NSW Police.

2. SC Bermingham reviewed social media platforms and other online content in relation to the defendant in the period between 1 July 2021 and 10 May 2022 and also provided contextual information about them. The online platforms included Wayback Machine, Facebook, YouTube, BitChute, Pinterest, Twitter, Stormfront and 4Chan/POL/Feed. He also assisted DSC Kiran Sharma in reviewing the contents of the Cellebrite extractions for the two seized mobile phones; iPhone X and iPhone 6S. His role was to draw links between the information contained in the mobile phones and his online and social media presence;

3. The affidavit of Ryan Williams sworn on 19 May 2022 with Annexures A, B and C (photographs of viewed items taken from police exhibit bag labelled “Three HikDeply devices + spare parts, a photograph of a blue plastic object with swastika symbol on it, copies of EFIMS records, and a copy of five “.gcode” files used in 3D printers). He is a Detective Senior Constable of police in the HRTOU;

4. The affidavit of David Greenway sworn on 25 May 2022 with Annexures A, B and C (his statements dated 1 and 5 October 2021 and photographs taken during the execution of search warrant on 28 August 2019). He is a Detective Senior Constable of police involved in the arrest of Mr Hickey. He took photographs of various items of significance during the execution of a search warrant at the defendant’s residence on 28 August 2019. He also performed examination of the defendant’s iPhone X data using Cellebrite software programs and produced extraction reports and video files;

5. The affidavit of Timothy Deaves sworn on 15 June 2022 with Annexure A (a copy of the Exhibits Forensics Information and Miscellaneous Property System (“EFIMS”) record). He is a Plain Clothes Senior Constable also involved in the arrest of Mr Hickey;

6. The affidavit of Michael Foster sworn on 16 June 2022 with exhibit “MF-1” (comprising a USB of body worn video footage and annexing photographs of the defendant’s tattoos). He is a Corrective Services Officer.

7. Two affidavits of Nigel Webb sworn 6 July 2021 with Annexure A (a copy of the envelope addressed to the defendant and a letter dated 9 March 2022 signed “Mum”) and 18 October 2022 with Annexure A (a copy of the envelope addressed to the defendant and a letter dated 6 August 2022 signed “Dad”). He is a Corrective Services Officer;

8. The affidavit of Kiran Sharma affirmed 20 July 2022 with exhibits “KS-1” (comprising a USB containing mobile phones Cellebrite extractions) and “KS-2” (a USB containing a selection of the audio and video files identified during extractions). He is a Detective Senior Constable of police in the HRTOU;

9. The affidavit of Aftab Khan affirmed 13 September 2022. He is a Corrective Services Officer, and his affidavit outlines the mechanism and procedure with respect to electronic monitoring of the offenders);

10. Three affidavits of Anna Johnson. She is the solicitor at the Crown Solicitor’s Office with carriage of this matter. Exhibit “AJ-1” to her first affidavit affirmed 15 September 2022 comprised three lever arch folders that included, inter alia, the defendant’s criminal history and background information; Risk Assessment Report prepared by Maggie Cruickshank on 1 August 2022; Risk Management Report prepared by Kimberley Rambaud, Enforcement Officer in the HRTOU, Community Corrections on 22 August 2022; and the Report of Dr Julian Droogan, Associate Professor of Terrorism Studies at Macquarie University dated June 2022). Exhibit “AJ-2” to her first affidavit comprised a USB of materials relating to Mr Hickey;

11. Ms Johnson’s second affidavit was affirmed on 20 September 2022. It included the Annexure A which was the ESO Management Report dated 12 September 2022 prepared by Detective Sergeant Marco Buttigieg in the HRTOU;

12. Her third affidavit affirmed 20 October 2022 included Annexure A which was a copy of the updated Offender Integrated Management System (“OIMS”) notes for the period 21 July to 18 October 2022.

19. The defendant did not rely upon any evidence at the preliminary hearing.

20. Before I turn to consider the substantial amount of supporting documentation relied upon by the State to answer the first question, it is necessary to outline the relevant legislative scheme and the relevant test.

The THRO Act

21. The starting point is to note the objects of the THRO Act which are set out in s 3:

(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.

(Emphasis added.)

22. In short, I am being asked to take the first step on a path which would ultimately see Mr Hickey either detained or supervised to prevent him from committing a serious terrorism offence.

23. Part 2 of the THRO Act (ss 19-32) concerns extended supervision orders (“ESOs”) and Part 3 of the THRO Act (ss 33-49) concerns continuing detention orders (“CDOs”).

24. A “serious terrorism offence” is defined in s 4 of the THRO Act as an offence against Pt 5.3 of the Criminal Code Act 1995 (Cth) for which a maximum penalty of at least 7 years of imprisonment applies. Part 5.3 of the Criminal Code is headed “Terrorism” and contains a number of such offences, including engaging in a terrorist act (s 101.1(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), acts done in preparation or planning for or planning of terrorist acts (s 101.6), directing the activities of a terrorist organisation (s 102.2), membership of a terrorist organisation (s 102.3), recruiting for a terrorist organisation (s 102.4), associating with terrorist organisations (s 102.8) and so forth.

25. In order for the court to make any order under the THRO Act the defendant must first be an “eligible offender”. An eligible offender is defined under s 7 as a person who is aged 18 years or older and is serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence. A NSW indictable offence is an offence against the law of the State for which proceedings may be taken on indictment (whether or not they may also be taken otherwise than on indictment): s 4(1), THRO Act.

26. I am satisfied that the defendant is an eligible offender. Counsel for the defendant did not submit otherwise. He is over 18 years of age and is currently serving a sentence of imprisonment for the indictable offences described further below.

27. Section 39(1) of the THRO Act provides that the court may determine an application for a CDO by either making a CDO, making an ESO, or dismissing the application. Section 34 of the THRO Act provides that the court may order a CDO in respect of an eligible offender if:

1. The offender is a detained or supervised offender (or was at the time the original application for the order was filed): s 34(1)(a);

2. An application is made in accordance with Part 3 of the THRO Act (s 34(1)(b));

3. The Court is satisfied that the offender is (inter alia) a convicted NSW terrorism activity offender: (s 34(1)(c));

4. The Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order: (s 34(1)(d)).

28. The four preconditions for the imposition of an ESO are substantially similar but condition (d) provides that the offender would pose an unacceptable risk if not kept under supervision: (s 20 of the THRO Act). I will proceed by reference to the provisions in Pt 3 of the THRO Act, “Continuing detention orders”.

29. As stated above, for the purposes of this preliminary application, Mr Hickey accepts that the first three requirements above can be established. The nub of the opposition to the making of any interim orders is the contention that the fourth requirement cannot be established. I will first address why I am satisfied that the first three statutory requirements can be established. I shall spend the remainder of this judgment assessing the material before me in order to determine whether the material, if proved, could establish the fourth requirement (the “unacceptable risk” test).

First statutory precondition: Is Mr Hickey a detained offender? (s 34(1)(a))

30. A detained offender is defined in s 33 of the THRO Act as follows:

detained offender means a person who is in custody:

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

(b) under an existing continuing detention order, emergency detention order or interim detention order.

31. It was not in dispute that the defendant was a detained offender at the time the application was made (and thereafter) under s 33(a). I am satisfied that this first statutory precondition is satisfied.

Second statutory precondition: Was the application made in accordance with Part 3 of the THRO Act? (s 34(1)(b))

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

33. Section 38 of the THRO Act provides for the necessary pre-trial procedures. Significantly, s 38(4) provides that a preliminary hearing into the application is to be conducted within 28 days after the application is filed or within such further time as the Supreme Court may allow.

34. It was accepted that the State’s application had been made in accordance with Parts 2 and 3 of the THRO Act. I am satisfied that this second statutory precondition is satisfied.

Third statutory precondition: Is Mr Hickey a “convicted NSW terrorism activity offender”? (s 34(1)(c))

35. Section 10 of the THRO Act defines a “convicted NSW terrorism activity offender” 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.

(Emphasis added.)

36. The term “terrorist act” is defined in s 100.1 of the Criminal Code (incorporated under s 4(1) of the THRO Act), as an act done or a threat made with the intention of advancing a political, religious or ideological cause by coercing, or influencing by intimidation the government of a state, territory or country, or intimidating the public or a section of the public. The relevant act must be one that causes serious physical harm or death to a person, serious damage to property, endangers the life of a person other than the offender, creates a serious risk to the health or safety of the public or a section of the public or seriously interferes with, disrupts or destroys an electronic system. It is to be accepted that this is a broad definition; it encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [187]. As Whealy J observed in R v Lodhi [2006] NSWSC 584 the definition of “terrorist act” in the Criminal Code “postulates an action or threat of action of the widest possible kind” (at [75]).

37. The term “violent extremism” is not defined in either the Criminal Code or the THRO Act. It was judicially considered in State of New South Wales v Elmir (Final) [2019] NSWSC 1867 by Walton J at [34] as follows:

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

38. I am satisfied that the inclusion of the term “violent extremism” broadens the scope of s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act.

39. As the statutory requirement to be a “convicted NSW terrorism activity offender” makes clear, it is not necessary for the defendant to have been convicted of an offence connected with terrorism: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (“Naaman”) at [22].

40. The State relies on subs 10(1)(c)(i) in relation to the defendant. That is, it contends that the defendant is a convicted NSW terrorism activity offender because he is both currently serving a prison term for an indictable offence, and he has previously made a statement advocating support for a terrorist act or violent extremism. Section 10(1A)(a) of the THRO Act provides that the following conduct falls within the ambit of subs 10(c):

(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

41. The State contends that Mr Hickey has advocated support for a terrorist act or violent extremism through comments he has made on line, the making of two videos in particular and from the usage of far right symbols associated with Nazism. In determining whether Mr Hickey is a convicted NSW terrorism activity offender under s 10 the court may have regard to the factors set out in s 11 of the THRO Act which are as follows:

11 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.

42. It is to be noted that these factors overlap to some extent with the relevant factors in s 39 extracted below.

43. As stated above, Mr Hickey accepted, for the limited purpose of the preliminary hearing, that the threshold under s 10(1)(c)(i) was made out as he had made statements advocating support for violent extremism. I am satisfied that the test under s 10(1)(c)(i) of the THRO Act has been satisfied based on the supporting documentation which I have summarised below.

Fourth statutory precondition: Is the court satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under the order (s 34(1)(d))?

44. The parties joined issue with this fourth statutory precondition. The court may only impose a CDO or an ESO if it is satisfied to a high degree of probability that the offender poses an “unacceptable risk” of committing a “serious terrorism offence” if not kept in detention or under supervision.

45. The term “unacceptable risk” is not defined in the THRO Act, although ss 21 and 35 provide that 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.

46. It has been held that the phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the THRO Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn“) per 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] per Basten JA. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate”.

47. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]:

“[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.”

48. Section 39(2) and (3) set out a number of mandatory considerations to which the court must have regard when determining whether or not to make a CDO. It has been held that although these factors are mandatory on the question of whether to grant the order sought, they are also relevant to the unacceptable risk test.

49. Section 39(2) provides that in determining whether or not to make an CDO, the safety of the community “must be the paramount consideration of the Supreme Court.” The other mandatory considerations (in addition to any other matter considered relevant) are set out in s 39(3)(a)-(m) as follows:

(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)  for an extended supervision order—the likelihood that the offender will comply with the obligations of the 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 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.

Preliminary Hearing

50. I have addressed the statutory requirements for the making of final orders under the THRO Act, but only preliminary orders are sought at this hearing and the test is slightly different. The relevant test for the making of orders following a preliminary hearing (as opposed to the final hearing) is set out in s 38(5) of the THRO Act in mandatory terms:

38 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 a continuing detention order or 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.

(Emphasis added.)

51. Section 41 also provides:

41 Interim detention order

The Supreme Court may make an order for the interim detention of an eligible offender (called an interim detention order) if, in proceedings on an application for a continuing detention order, it appears to the Court—

(a) that the offender’s current custody (if any) 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 or continuing detention order.

52. The application of this test has been likened to that of committal proceedings. As Johnson J stated in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [23]:

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

53. Similarly, in State of NSW v Naaman (No 2) [2018] NSWSC 1329 (“Naaman (No 2)”), Campbell J observed (at [48]):

“[48] I think it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff’s case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case.”

54. On appeal, the Court of Appeal (Basten, Macfarlan and Leeming JJA) in Naaman (No 2) described the court’s task at preliminary hearing as follows (at [17]):

“[17] 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”.

(Emphasis added.)

55. In State of NSW v Elomar (No 2) [2018] NSWSC 1034, Rothman J observed that the test does not require “prima facie” proof of the matters alleged and noted:

“[7] … I should make it clear that the term ‘matters alleged’ does not refer to a conclusion. It refers to matters of fact that, if proved, would be open to lead to a particular conclusion.

[8] To use an example may better illustrate the distinction. If an application for an ISO and/or ESO were to allege that a person was ‘a terrorist’, that would not, in my view, of itself, satisfy the condition prescribed by s 27(b) of the THRO Act. Whether or not the defendant in any such hypothetical proceeding was “a terrorist” is a conclusion that must be based upon facts that are adduced.

[9] In such a circumstance, it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO…

[10] As a consequence, the ‘matters alleged’ must be facts or based on facts that are, firstly, capable of being proved; and, secondly, such that, if proved, they would satisfy the Court that an ESO should or would be made.”

56. Similarly, in State of NSW v Golding (Preliminary) [2018] NSWSC 1041, R A Hulme J at [17] observed that:

“[17] It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J).”

decline to make an IDO or ISO would arise other than in an exceptional case.”

57. Given that the mandatory considerations for both a CDO and an ESO are broadly the same and that such considerations are also relevant to the unacceptable risk test, I propose to summarise the material before me on this application under headings corresponding to these mandatory considerations, as applicable. I will also summarise other matters arising from the material which I consider to be relevant.

58. I note that some of the mandatory considerations set out in s 39(3) are not relevant at this preliminary stage and otherwise did not arise on the material: s 39(3)(a), (b), (e), (f). Otherwise, s 39(3)(g) has been addressed in my consideration of the Risk Assessment Report (“RAR”) and Risk Management Report (“RMR”) below.

The defendant’s personal circumstances

Background

59. Mr Hickey was born in Melbourne in 1975. He has provided inconsistent accounts of his childhood. Some reports note his disclosure of specific incidents of domestic violence within his mother’s home including him physically defending her from one of her boyfriends, his mother’s partners “physically handling” him and his brother at the encouragement his mother, he and his brother being pushed and locked in a room while his mother engaged in physical intimacy with her partners in the lounge room and going for days without an adequate meal.

60. Despite this history, Mr Hickey told the author of the RAR that his childhood was “normal”. He denied feeling deprived in any way. He expressed dislike for attempts to blame problems in adulthood on childhood experiences and compared his childhood favourably to others.

61. Mr Hickey reported that his mother left the family when he was five years old with he and his younger brother accompanying her but he came back to live with his father soon afterwards. He described his parent’s divorce as acrimonious but denied being exposed to significant violence reporting that physical discipline was proportional. He believed that the fact that he moved between his parent’s houses over his teenage years contributed to his behavioural problems in his teens. He reported a difficult relationship with his mother until he was about 20 years old when it ceased altogether. That relationship was only recently re-established after approximately 20-25 years of estrangement. He reported that his anger towards his mother was not entirely resolved but that he loves her now.

62. Mr Hickey now reports getting on well with his father, who was a strict “by the book” man and that he often spoke of his mother in negative terms. He described that his mother was dishonest and often exaggerated his teen years problems and also abused alcohol. He believes that his self-described “misogynistic” attitude towards women including lack of trust and disrespect for the authority of women related to his relationship with his mother during his development years and from his father’s “constant badmouthing” of her.

63. Mr Hickey’s father is 76 and presently resides in Melbourne. Mr Hickey has described his relationship with his father as “strained but strong”. He has a younger brother who is a is a locksmith who resides in Melbourne, but he is not currently in contact with him. His mother is in her late 60s and also resides in Melbourne.

64. Mr Hickey had some minor matters in the Children’s Court and a few minor convictions as an adult before moving to Queensland as an adult. He is an electrician by trade. He ran a successful business in Brisbane called “Smerff Electrical” employing up to 12 people. As stated above, the first indication of the defendant’s extreme right-wing beliefs is from 3 August 1996, when police observed racist messages on his phone and Mr Hickey stated that he was a neo-Nazi white supremacist.

65. On 16 November 2014, Mr Hickey married Elena Polovnikova, a Russian woman born in Novosibirsk. They married in Brisbane. They have one child, a daughter named Angie who is now aged 7 years. Both his wife and daughter returned to Russia in 2019 apparently because of Mr Hickey’s difficulties with Queensland police which, as will be seen below, started in about 2017.

66. The evidence as to the current status of his marriage was unclear. Although Mr Hickey states that his wife and daughter have been denied a visa to return to Australia, there was no evidence before the court as to whether that is the case or whether his wife has made any effort to come to Australia or even wants to come. In some of the material put before the court Mr Hickey refers to her as his ex-wife but there is also material to suggest that he wants her and their daughter to return to Australia.

Criminal (and other court) history: s 39(3)(j)

67. Although Mr Hickey has not been convicted of any serious offences of violence, he does have a criminal history. He has served short periods in custody since 2019 in Queensland for contempt of court and breaching an AVO and his current sentence in New South Wales is in relation to the possession of caltrops (explained below).

68. Mr Hickey had some minor matters in the Children’s Court in Victoria involving graffiti and minor theft in 1990 and 1992. In 1994, he was fined $200 with a conviction not being recorded for theft and obtaining property by deception. In 1996 an apprehended violence order was issued to protect a family member from him. In 1998, he was fined without conviction for cultivating a narcotic plant and in 2003 he was convicted and fined for possessing an explosive without being licensed, possessing a long arm unlicensed weapon and possessing a handgun without a licence.

69. Mr Hickey moved from Victoria to Queensland sometime in the mid-2000s. He received is next conviction in Brisbane in 2009. He had shot some airgun pellets into a neighbour’s shed and when police attended, he gave them a false name. He was charged with dangerous conduct was a weapon and obstructing a police officer. He was fined $300, and no conviction was recorded.

70. In 2010, Mr Hickey was dealt with for fraud, publishing or possessing instructions for producing dangerous drugs, unlawful possession of restricted drugs and possessing restricted items. Queensland police had executed a search warrant at his residence and found literature and books on how to use and build weapons as well as copious literature and books on white supremacy and support for Hitler and the Nazi regime. Some documents in other people’s names were located as well as lock picking equipment, encrypted USB memory sticks and over 300 Viagra tablets. No conviction was recorded, and he was fined $1,100.

71. In 2014, the AFP approached Mr Hickey at the customs arrivals hall at Sydney airport. He was found to be in possession of two fake drivers’ licences which he had purchased in Thailand. He was dealt with in New South Wales under s 10A (there was no conviction or other penalty).

72. In 2016, Mr Hickey was dealt with for importing four cans of pepper spray and five laser pointers into Australia from Malaysia whilst falsely stating on his incoming passenger card that he was not bringing in any prohibited imports. Following an appeal, he was fined $5,000.

73. In 2017, Mr Hickey was fined $500 without conviction for possessing pipes in connection with the commission of a drug offence. Also, in 2017, he was fined $500 for publishing or possessing instructions for producing dangerous drugs (cannabis).

74. Although Mr Hickey held his extreme right views during the above period, he had never been convicted of any serious offences. The turning point for Mr Hickey appears to have come in 2017.

75. In 2017, Siobhan Dash commenced investigations against Mr Hickey as part of her role as an investigator with the Office of Fair Trading. In the execution of her duties, Ms Dash executed a warrant at Mr Hickey’s home address to investigate whether he had installed CCTV cameras unlawfully (although the facts were somewhat unclear it would seem that you require a particular security licence to do so which he did not have). As a result of this investigation Mr Hickey posted numerous online videos about Ms Dash and placed “wanted” posters about her. In 2018 he was charged with stalking her. A restraining order was subsequently imposed which included an order that he not post anything on the Internet or public space about her.

76. After the restraining order was imposed Mr Hickey sent a number of text messages and emails to Ms Dash which contained abusive language, including calling her a “thief” and “parasite”, and stating “this shit won’t go away”. He also sent an email stating, “have you googled yourself lately?”. A Google search led to the discovery of a page on the Smerff Electrical website where Ms Dash was depicted with the words “Bulldyke” and “nasty career labour hack” near it. A post on that page referenced a cash reward for information about Ms Dash. Mr Hickey also placed a poster in Ferny Hills which depicted Ms Dash, her name, and a cash reward offer for information. He was, as a consequence, convicted of unlawful stalking. He was subsequently convicted of breaching that restraining order as a result of a video he posted online concerning Ms Dash.

77. On 25 January 2018, Mr Hickey was sentenced in relation to setting “man traps” on his property. He had attached razor blades at spaced intervals on the interior of his property fence. When a number of police officers jumped over his fence to execute a warrant one of the police officers cut his finger requiring stitches. He was also dealt with for unlawful stalking (sending text messages and emails to Ms Dash).

78. On 8 April 2018, Mr Hickey was convicted of using a carriage service to harass or cause offence. Those offences were in fact committed in November 2015. He was sentenced to 6 months and 4 months’ imprisonment respectively and released on a recognizance to be of good behavior for a period of 5 years with a probation period of 24 months on both charges. These convictions followed phone calls made to two Islamic educational institutions and an email attaching anti-Islamic images which contained the following text:

“After the weekend in Paris you better pack your things and go home to the desert. You have awakened the wrath of the sleeping giant. European men with our rockets and bombs and modern armies shall march on your pathetic pig fucking prophet Mohammed in his shithole filthy capital of Mecca. Mecca, medina, Mosul, every last Muslim city on earth shall be but a black stain on the earth .

By the time were finished it will be illegal to even say the word Islam or Muslim anywhere on earth.

You filthy desert cockroaches have pushed us once too often. Fuck Mohammed. Fuck Allah. Fuck you filthy bearded fucks

Mohammed fucks pigs in hell. You will join him.”

79. This is the only occasion on which Mr Hickey has ever been convicted of a matter connected with his far right views.

80. On 16 May 2018, Mr Hickey sacked an employee which led to him becoming involved in proceedings for unfair dismissal in the Fair Work Commission and the Federal Circuit Court. He was ordered to pay compensation of $11,400. He appealed the order, but his appeal was dismissed in March 2019. In addition to failing to pay the $11,400 ordered by the FWC, Mr Hickey underpaid the worker $5,504 in wages and $482.93 in superannuation in contravention of the Electrical, Electronic and Communications Contracting Award 2010.

81. On 13 February 2019, Mr Hickey breached his bail condition and received a suspended sentence of 12 months

82. On 1 April 2019, Queensland police executed another search warrant at Mr Hickey’s residence in Queensland in relation to a breach of the restraining order and traffic - related offences. They seized his mobile telephone. Later analysis of the phone located the video “Ebba’s Revenge”. It depicts the Christchurch terror attack on 15 March 2019 in which an Australian man killed 51 people and injured 40 others in mosques. Mr Hickey was arrested and charged with five counts of using a carriage service to menace/harass/offend in relation to his dissemination of that video.

83. Mr Hickey had edited the “Ebba’s Revenge” video by inserting text, video and still images. I have not watched this footage as it was not suggested that I needed to. There are descriptions of it in the material tendered on this application. The video has been edited to appear like a videogame. Mr Hickey forwarded the video to five people using the messaging application Signal, saying “Share this by Signal or Secret text only. It’s video made by me LOL check it out” and “Don’t share by text Signal is ok. Try and get it out to Cunts”. He also sent the video to his wife, saying “its banned everywhere so I produced a funny video game version with music and scoring points… I think it should be on television… everyone can sing along as he wastes kebabs… fun for all the family.”

84. On 12 June 2019, Mr Hickey appeared at the Richland Magistrates Court. His suspended sentence was revoked, and he was sentenced to custodial terms. During the execution of a search warrant at his address police located amongst other things two machetes, a metal baseball bat and a bundle of approximately 30 arrows. Investigators also observed the swastika symbol being projected from the lights under the doors of his BMW. They also located a semiautomatic Wilson combat 1911 handgun and a holster and 50 x 45 calibre rounds for the weapon concealed in a cavern in the kitchen. Given that he had already spent 79 days in custody by that date, he was sentenced to a non-parole period to expire that day and was released to parole on that date.

85. At around this time Mr Hickey and his family moved over the border to Kingscliff in NSW. On 23 July 2019, Mr Hickey wrote to the Roma Magistrates Courts stating, “I do not intend to return to Queensland unless we have a federal mandate to seize the land and declare it a new region of Northern New South Wales.”

86. On 28 August 2019, Mr Hickey was arrested at a supermarket in Kingscliff. A warrant had been issued by the Brisbane Magistrates Court for revocation of parole (presumably for leaving Queensland). His car was searched on that day and numerous items relevant to the index offences were located. He was taken to Tweed Heads Local Court and extradited to Queensland.

87. On 19 September 2019, Mr Hickey appeared in the Supreme Court of Queensland at Brisbane on a charge of contempt of court and was sentenced to 9 months imprisonment. He had made contemptuous statements regarding the Queensland magistracy. Douglas J held that he had engaged in scurrilous abuse and making statements which incite misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office.

88. On 9 October 2019, Mr Hickey was charged with the index offences in New South Wales resulting from the search of his vehicle in Kingscliff on 28 August 2019. He was serving a sentence in Queensland at that time, so a warrant was issued in respect of those offences on 1 November 2019. The details of these index offences are considered below.

89. On 9 December 2019. Mr Hickey appeared in relation to breaches of a recognisance release order imposed on 18 August 2018 in relation to 2 charges of using a carriage service to menace/harass/offend relating to his conduct in November 2015 (see above at [80]). That recognisance order was revoked and in lieu thereof he was sentenced to 4 months imprisonment to commence on 18 January 2020. He had also breached the good behaviour bond.

90. On 7 August 2020, Mr Hickey was released on bail in Queensland on Commonwealth charges under the Civil Aviation Safety Regulations 1998 in relation to conduct in 2017 in 2018 and a charge of breaching a restraining order contrary to the Criminal Code.

91. On 12 January 2021, Mr Hickey was found guilty of an offence of breaching a restraining order in the Magistrates Court in Brisbane pertaining to conduct in July and August 2019. He was sentenced to a period of 3 months’ imprisonment which was suspended for a period of 6 months.

92. On 9 May 2021, anomalies were detected in relation to Mr Hickey’s electronic monitoring device. He subsequently emailed a police officer attaching a guide explaining how he had disabled it.

93. On 10 May 2021, Mr Hickey’s vehicle was detected in Victoria with stolen numberplates on it.

94. On 12 May 2021, Mr Hickey failed to appear at the Brisbane Magistrates Court and a warrant was issued for his arrest.

95. On 14 May 2021, Mr Hickey was arrested in Bayswater in Victoria by the Victorian Counter Terrorism Security Investigating Unit and Special Operations Group.

96. On 17 May 2021, the Brisbane Magistrates Court issued a warrant for Mr Hickey’s arrest in relation to breaches of bail.

97. On 18 May 2021, Mr Hickey was transferred to custody in New South Wales.

98. On 19 May 2021, Mr Hickey was charged with wilful damage (the removal of his electronic monitoring device), breach of bail conditions (in relation to his residence condition and leaving Queensland) and dishonest application of property of another (driving the stolen registration plates attached to his vehicle).

99. On 6 July 2021, a warrant was issued in Queensland to apprehend Mr Hickey for failing to surrender into custody in relation to a charge of breaching his restraining order.

100. On 7 July 2021, a warrant was issued in Queensland to apprehend Mr Hickey for breach of bail.

101. On 24 September 2021, Judge Jarrett of the Federal Circuit Court in Family Court observed that Mr Hickey demonstrated a “wilful disregard” of authority and the integrity of the Fair Work Commissions authority and integrity and had shown “disregarding contempt” and “open contempt” for the Fair Work Commission: Fair Work Ombudsman v Hickey (No 2) [2021] FedCFamC2G 80. He was fined $30,000 for this contempt.

The index offences

102. The index offences pertain to Mr Hickey’s development and production of his “HikDeploy” product which is a “pursuit prevention device”. The HikDeploy is a box containing caltrops (road spikes) which can be attached to the underside of a vehicle. Mr Hickey promoted the HikDeploy as a way of evading a police pursuit. It would appear that he did so as a way of getting revenge for police who he believed made his life unbearable in Queensland.

103. The first record of the HikDeploy in the evidence is from mid-2018, when he posted videos of the HikDeploy on the “sqiish sqash” YouTube account. On 10 August 2018 the Facebook user “Henrii Deploii” (a username linked to Mr Hickey) posted a video of the HikDeploy stating “HikDeploy remote control pursuit prevention module…for when stopping is not an option.” On 10 October 2018, the following post appeared on youtube

“HikDeploy is a Clip on Pursuit Prevention module that can be called on to drop hardened steel road spikes behind your car. Securely fixes to any vehicle in seconds.

… If some angry motorist is trying to road rage you – fix his little red wagon with HikDeploy. Push the button hear the click and watch his anger turn to tears as his tyres are shredded.

Could possibly also be used to stop those stupid signed up cars with flashing red and blue lights The ones that sound like wiiiii woooo wiiii woooo. They didn’t seem friendly to me so I’ve always just HikDeployed them and they seem to leave me alone now.

Can’t be too careful they might have been trying to rob me or steal my HikDeploy. I don’t really want to find out what those cars are all about.

…

HikDeploy: When stopping is not an option. We’ll get you home.”

104. On 21 March 2019, the user “Hik Deploy” posted a video entitled “HikDeploy IX 9.21 The Quockenator” which included the following content by reference to the running time of the video:

1. 1:25 min – a caption appears stating: “So: Police are not allowed to pursue speeding vehicles But they do so anyway. Therefore: Hik Deploy is a law enforcement device. It forces police to comply with the law and halt their illegal pursuit.”

2. 2:50 minutes – in response to the Channel 9 report describing a “manifesto” on the Hik Deploy web site, a caption appears “Manifesto? I am not a Unabomber. The device does require an explanation. It could be construed as irresponsible. Until cause and effect is explained.”

3. 4:17 minutes – a caption reading “you suggesting we go through the proper channels to resolve it?” The video then plays audio recordings of Hickey’s District Court appeal in 2018.

105. On 31 March 2019, on Vimeo the user “Hik Deploy” posted a video demonstrating the use of the HikDeploy entitled “HikDeploy V9.6 The Rusher of Bacon”. It contains the following content by reference to the running time of the video:

1. 0:55 minutes – A voice over states: “when you need to leave the scene of your next hate crime, use HikDeploy”.

2. 3:15 minutes – a hand inserts both black and white spikes into the device and states: “[w]e keep the white spikes and the black spikes separated. It’s important to understand that the white ones have a very generous welfare program, hotter chicks and a higher standard of living. If the black ones found out, they’d be over there in a second and messing up all the shit on the white side. We don’t want that.”

3. 3:32 minutes – a stock radio voiceover states “you are listening to the smooth sound of the racial holy war”.

4. 3:47 minutes – a man displays the sharpness of the spikes, using a jelly cup to represent a police vehicle, he slams the jelly cup into the spike before continuing to smash the cup with a hammer and screwdriver.

106. In October 2019, following the search in Kingscliff, Mr Hickey was charged with the following index offences: possess identity to commit etc indictable offence (seq 1); unlawfully possess thing resembles Australian driver licence (seq 2); three counts of possess prohibited drug (seqq 3, 6 a 7); manufacture a prohibited weapon without a permit (seq 4); possess digital blueprint for making prohibited weapon (seq 5); possess or use a prohibited weapon without permit (seq 8); and manufacture prohibited weapon without permit (seq 9). These offences largely pertained to the HikDeploy.

107. Following his plea of guilty to sequences 1, 4, 5 and 8 on 31 May 2021, Mr Hickey was sentenced in the Local Court on 13 July 2021 to an aggregate sentence of 3 years’ imprisonment in relation to these charges. In relation to the remaining charges, he received s 10A bonds with no other penalty.

108. Following his appeal against sentence to the District Court, the charges were remitted to the Local Court. The question arose as to whether the HikDeploy boxes (subject of seqs 4 and 5) met the definition in Schedule 1 of the Weapons Prohibition Act 1998. Mr Hickey was granted leave to withdraw his plea in relation to those charges and they were withdrawn on 22 November 2021.

109. With respect to the remaining charges, Mr Hickey was re-sentenced on 10 December 2021 as follows:

1. Manufacture prohibited weapon without permit (seq 9) – 10 months’ imprisonment commencing on 13 May 2021 and expiring on 12 March 2022;

2. Possess identify info to commit etc indictable offence (seq 1) – 3 months’ imprisonment commencing on 13 May 2021 and expiring on 12 August 2021;

3. Possess or use a prohibited weapon without permit (seq 8) - 18 months’ imprisonment with a non-parole period of 10 months commencing on 13 May 2021 and expiring on 12 March 2021.

110. Mr Hickey appealed to the District Court against the sentence. He was re-sentenced by McLennan SC DCJ on 21 January 2022 as follows (by the time the appeal was heard the sentence of imprisonment in relation to seq 1 had expired):

1. Possess or use a prohibited weapon without permit (seq 8) – his non-parole period was reduced from 10 months to 9 months to date from 13 May 2021 and expiring on 12 February 2022. His head sentence of 18 months’ imprisonment commencing on 13 May 2021 and expiring on 12 November 2022 remained intact.

2. Manufacture prohibited weapon without a permit (seq 9) – fixed sentence of 10 months’ imprisonment was reduced to 9 months to date from 13 May 2021 and expire on 12 February 2021.

Views of the sentencing court: s 39(3)(k)

111. Judge McLennan considered that the caltrops carried with them the risk of very serious injury or death for other road users. Although the appeal against sentence was allowed having regard to the impact of the COVID-19 outbreak, his Honour’s remarks about the nature of the offending were consistent with the sentencing remarks at first instance, which included the observations that Mr Hickey represented a “real risk to the community” and that the weapon he possessed “posed a genuine risk to the public” and that the spikes, if deployed “would have represented a real risk to human life.”

Recent parole history

112. Following his re-sentence, Mr Hickey was due to be released at the end of his non parole period on 12 February 2022. Given that his sentences were of 3 years or less, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999, he was taken to be the subject to a statutory parole order. On 11 February 2022, the State Parole Authority (SPA) revoked that statutory parole order. In revoking his parole, the SPA advised Mr Hickey that it had acted pursuant to s 159C(2) of the Act on the basis that Mr Hickey was known to the SPA to be a “terrorism related offender” and that he” … may engage in violent extremism”. As well, the SPA stated that it had revoked Mr Hickey’s’s parole pursuant to s 130(1)(a) because it was satisfied that, if released, Mr Hickey would pose a “serious identifiable risk to the safety of the community” and that such “risk cannot be sufficiently mitigated by community corrections officer directions or changing parole conditions”. Mr Hickey was notified of the revocation of his parole by a letter dated 17 February 2022 from the Secretary of the SPA: Hickey v State Parole Authority [2022] NSWSC 1389.

113. Although it was never expressly stated, it is to be presumed that it was Mr Hickey’s support for Mr Tarrant which led to this classification.

114. A review hearing was held on 15 March 2022. On 5 April 2022, the SPA declined to rescind the revocation order on the basis that Mr Hickey had previously made statements advocating support for violent extremism, that it had become aware that Mr Hickey might engage in violent extremism, and that if released Mr Hickey would pose a serious identifiable risk to the safety of the community and the risk cannot be sufficiently mitigated by community corrections officer directions or changing parole conditions.

115. The SPA observed that “[i]t is clear that Mr Hickey has made statements which support and justify violence, terrorism and violent extremism and he has portrayed as humorous, acts of brutal racially motivated violence.” The SPA considered that “[s]trong political views with intemperate language are not explanatory of the offender’s conduct” and that it was “affirmatively satisfied that the offender may incite others to engage in terrorist acts or violent extremism.”

Mr Hickey’s beliefs over the years

116. As stated above, police first became aware of Mr Hickey’s views in 1996. In 2011, during a baggage examination at Sydney Airport, it was recorded in an Information Report in the supporting documentation that Mr Hickey:

“… has strong beliefs in government conspiracies including the Port Arthur massacre and the 9/11 terrorist attacks. Passenger also has strong feelings about gun controls, law enforcements and airport security screening. Passenger also stated that All terrorists are Muslims and there are no white Christian terrorists and that All towel heads should be banned from flying.”

117. Mr Hickey started posting on the “Stormfront” forum in 2009 under the username “Aussie Earl Turner”. Stormfront is a “far-right and neo-Nazi web forum established in 1996 considered by terrorism academics to be a forum for spreading racism, hatred, conspiracy theories, and other far-right extremist narratives.” Its users included Anders Breivik, the extremist responsible for the 2011 terrorism attack in Norway that killed 77 people, and its founder was a former Grand Wizard of the Ku Klux Klan and a member of the USA Nazi Party.

118. I was provided with numerous posts made by Mr Hickey on Stormfront under the username “AussieEarlTurner” between 2012 and 2015. I do not consider it necessary or appropriate to reproduce them at length. Mr Hickey calls repeatedly for “whites” in Australia, the UK and the US to resist the corruption of society by all manner of minority groups: primarily Muslims, but also Jews, Africans, African Americans, Asians, women, communists and non-heterosexuals. His posts also targeted “whites” “complicit” in this corruption. Mr Hickey talks in crude and violent terms, calling for the widespread hanging and lynching of members of these minority groups. In his view, “Kristallnacht” should be an annual event. He expresses support for specific events – for example, on 17 April 2015, praising the arson of a mosque in Toowoomba – as well as portraying grandiose ideas of ethnic cleansing and race war.

119. Mr Hickey appears to have attended some events frequented by other Stormfront members, including a Reclaim Australia rally. He was “disappointed” with aspects of a United Patriot Front rally in Melbourne in 2011, saying:

“I was disappointed with a lot of aspects of UPF rally Melbourne. First I am a bit embarrassed at the way Blair and other assorted leaders tried to claim over and over that 'we're not racist'. Forget that s**t Blair. We are racist. I believe white Europeans have a right to govern and dominate the countries we founded. No other race has a right to high political power in our nations. No other race is allowed to infiltrate and poison the minds of white youth. No other race should be allowed to live in our lands in sufficient numbers to pose a threat to us EVER.

Second. Guys came from all over Australia to back up Blair and his mates in Melbourne on Saturday. One guy came home early from holiday in Bali to be there. I came from another state, and there were many others. We were not even acknowledged by any of them.

The poor organisation. There were at least 3 separate patriot groups scattered through the city that day making easy pickings for antifa scum. If we had of had better organisation, cohesion and prior planning we all could have met earlier and pushed into the city as a formidable fighting force. As it was the 50 or so with our main group could have smashed the red scum alone. If we had of linked up with all, the 200 + white fighting men would have made the Reds **** bricks The Reds would have been saved only by the police. Even then 100 + guys could have skirted the police lines and ambushed the Reds from behind. The red scum will only be defeated by force. They need to be beaten badly a few times to learn who owns Australia. I will talk to UPF leadership next time I'm in VIC to see if we can't work out a better plan next time.”

120. Mr Hickey has also operated a number of different Facebook accounts. One of them was in the name of his business “Smerff Electrical”, one was in the name “Henrii Deploii” to promote HikDeploy and another was in the name “Bernard Christian. Mr Hickey also operated a Pinterest account with the username “HikDeploy”.

121. Much of the material on these platforms is similar to other postings. The same memes appear elsewhere in the material. They include the Brenton Tarrant meme portraying Tarrant as a “high elf from Valinor”.

122. In addition, Mr Hickey operated an “Air Conditioning Expert” account. Several images are of his wife Elena, and in one post she is identified as “the experts wife.” He describes her as “Exclusive property of White European men and a beauty which must be defended from the Jews attempt to breed out of existence 1488.” In another post he says “We will destroy the predatory migrations against Europe by waging war in all corners of the Earth as we see fit. The destruction of Europe's enemies is a sacred ritual.”

123. Mr Hickey has used a number of websites to promote his views. There is a large amount of content including anti-immigration, racist, misogynistic, anti- government, and homophobic content. I have waded through a significant amount of this material. It is very repetitive.

124. On the Smerff Electrical website, Mr Hickey displayed a banner featuring the Pepe the Frog meme wearing an SS lapel and standing outside the gates of Auschwitz and posted videos and memes consistent with his views. The expert evidence is that “Pepe the Frog has come to represent bigoted, anti-Semitic, and white supremacist themes. The addition of a SS uniform and gates of Auschwitz in this example clearly identifies it as an explicitly neo-Nazi anti-Semitic symbol.”

125. This website material was captured using the Wayback Machine. The posts on the Smerff Electrical website included that on 21 November 2014 Mr Hickey made a post entitled “the Invasion of Europe continues” which commenced “How long will we sit idly by and allow millions of able bodied, military aged, foreign men to enter out lands? Why is our traitorous government aiding this obvious invasion of our territory? Why aren’t white men manning machine gun posts on every border, defending… .” Another post (captured on 31 January 2019) is entitled “Fair Trial at Beenleigh Magistrates Court? Lol.” The post culminates with the statement “Cockroaches have more moral fibre than most of our professional legal administrators. Some of them need to be made an example of.”

126. A number of other posts were captured on 31 January 2019, but it is not clear to me when they were posted. They all express views in a similar vein.

127. Police seized an iPhone X and an iPhone 6S from Mr Hickey on 28 August 2019 and performed a Cellebrite extraction. The iPhone X contained images consistent with memes that Mr Hickey posted on social media sites. There are a number of images with text supportive of Hitler and promulgating the theory that the world is now in the “Jew World Order”. There is an image of Brenton Tarrant with the Nike “Just do it” logo and the text “Believe in something. Even if it means sacrificing everything.”

128. The web history on the phone shows that Mr Hickey searched for content concerning the “adl” (the Anti-Defamation League) and police training. He visited a range of sites consistent with his views, including the XYZ, The Daily Stormer and Stormfront. His bookmarks included “The Great Replacement: The Manifesto of Brenton Tarrant – the New Zealand Mosque Shooter – European Freedom Publications”, Stormfront, and HikDeploy videos.

129. Screenshots from the IPhone X feature pro-Nazi images and iconography, content concerning the “Extinction of the European Population … History of a Civilization’s Suicide”, anti-Semitic content, and videos of HikDeploys and their components.

130. The iPhone 6S appears to have been used by both Mr Hickey and Elena. There is a screenshot on the phone of an email from Mr Hickey to Andrew Anglin. Mr Anglin is the founder of the far-right Neo Nazi website The Daily Stormer. The Daily Stormer article published on 1 March 2017 described Smerff Electrical as “The Daily Stormer’s sole corporate sponsor”. The email to Mr Anglin reads:

“Andrew just read your valentines piece. I know exactly how you feel. 2 years ago I was where you are.

Now I am married to a russian woman who hates ni99ers just as much as me and I didn’t have to teach her this

I am going back to russia in august if you wish to come. I can tell you how to tee up potential women and catch one who’s hot like my wife. I’ll pay for your flights You’ve done enough for our people.

Here’s photos of my wife and her friends If you want to come to russia you need to start preparing soon and I’ll arrange the travel.

My wife is the blonde. Hail victory.”

131. According to the translation of the Cyrillic text, the email is dated February 2015.

The Inquiry into Extremist Movements and Radicalism in Australia

132. On 28 June 2021, the XYZ website posted a submission prepared Mr Hickey to a public enquiry into Extremist movements and Radicalism in Australia. I note that the XYZ website styles itself as catering “to the needs of the population of Australia which believes in free speech, free markets, and selfconsciously acknowledges our place in Western civilisation and culture”. Mr Hickey’s submission published on the XYZ website included the following:

“I feel I am in a position to speak with some experience on these matters as I have been labelled a ‘right wing extremist’ by both the state and federal government for some time. I believe my categorisation as an extremist is both unfair and ill-informed. This categorisation has caused me huge financial, emotional and productivity losses, without justification. I have been refused licenses, had existing permits / licenses removed or revoked on the most trivial of grounds I have been harassed extensively by Queensland police, specific instances will be detailed at the end to avoid diverting the overall direction of this submission. I have been subject to investigation / audits by more government organisations than any person should ever be subject to. It’s no coincidence that my problems with the government started at the same time as my political positions became public knowledge.

…

To be clear on this, although I shouldn’t have to justify my politics to you or anybody else, I don’t hate or dislike anybody because of the colour of their skin. I make informed decisions on who I want to socialise with, work for or live around because I value my property, my safety and that of my family. Not all Africans are going to rob my house – of that I am certain. I can be equally certain that once a bunch of African families are living in my street, there will be increased risk of vandalism, theft, violence and anti-social behaviour. These people do not think like us, behave like us or even want to. That in itself isn’t wrong, but it is an observable fact.

…

That doesn’t mean I hate Africans, it means that I have observed their behaviour and decided that it’s better not to be around them. I don’t buy a pit bull terrier for my daughter as a pet – why? Not all pit bulls are going to maul her without provocation. What I do know is that the risk of attack from a pit bull is far higher than that of a Labrador. Local councils agree and place restrictions only on this breed of dog. The height of racism. If the diversity myth about behaviour patterns not being genetic were true, councils would not need to have these laws

…

Further to that I believe it is a warped sense of equality that drives these people to inflate the perceived risks of terrorism by right wing offenders They are so attached to their equality beliefs that they just know if Arabic Muslims are doing terrorism this frequently, then everyone else must be doing it too. The only reason they haven’t witnessed any right wing terrorism incidents in Australia is because the government is not spending enough to root them out. Here we see the common problem modern liberals have where reality doesn’t line up with their world outlook. So they seek to change or modify real world data to conform to what they believe should be happening. There isn’t any right wing extremist related fatalities in Australia right now, so the solution is to create some. They simply move the goal posts, or change the criteria for the definition of right wing extremist so as to inflate the numbers, and reinforce their theories Where once an extremist of any political spectrum was defined as someone who had used threats or violence to push a political agenda, now all one needs to do to be labelled a right wing extremist is say the words, ‘I think we need to re-think this country’s immigration policy.’ Perhaps, you might try saying: ‘I prefer that my children grow up in a mostly white neighbourhood, for their own safety.’ Both observations are logical, rational and supported by all the evidence. Yet none of you dare say it in public.”

227. It was submitted that the court cannot be satisfied that there is an unacceptable risk of Mr Hickey committing a relevant offence. It was submitted that this is because the State did not provide any particularisation of which serious terrorism offence it was alleged Mr Hickey poses a risk of committing. Mr Kerkyasharian acknowledged that any prospective assessment of risk cannot precisely identify the offence that will be committed. Nonetheless, it was submitted that, at a minimum, the court must be satisfied of something more than there being a risk Mr Hickey will commit a violent act or terrorist act, rather, it must be satisfied there is an unacceptable risk of him committing a serious terrorism offence.

228. It was submitted that the three “risk scenarios” Mr Hickey may engage in, as identified in the RAR do not rise to the level required of any relevant offending.

1. The first risk scenario identified is that Mr Hickey “may inadvertently or intentionally influence encourage or incite vulnerable others to engage in ideological violence.” Mr Kerkyasharain submitted that at its highest, this description may make out an offence of advocating terrorism contrary to s 80.2.C of the Criminal Code, but this is not classified as a “serious terrorism offence”.

2. The second risk scenario identified is that Mr Hickey may “[do] acts in preparation for, or planning, a terrorist attack”. It is submitted that the highest level the RAR rises to is to the proposition that Mr Hickey “may” provide support for a terrorist act. It was submitted that for this to occur, there must be a change in Mr Hickey’s behaviour that he has been engaging in for past decades. Mr Kerkyasharian submitted there is no evidence before the court that would allow it to conclude to a high degree of probability that this change will occur.

3. The third risk scenario identified is that Mr Hickey “engage in a terrorist act”. It was submitted that this scenario posits little more than the possibility Mr Hickey will engage in violence and justify it with recourse to his ideological attitude. Mr Kerkyasharian submitted that this alone is not a terrorism offence.

231. As for the actuarial tools, it was submitted that the VERA-2R and TRAP-18 cannot justify a finding that Mr Hickey poses a risk of committing a relevant offence, and certainly not to the high level of satisfaction required by the THRO Act for the following reasons:

1. That VERA-2R tool is not applicable to Mr Hickey as he has not had a past or current charge or conviction of violent extremism, politically motivated violence or terrorism offences. It was submitted that as VERA-2R was designed for offenders of that kind and given Mr Hickey’s lack of similar offending, the court cannot be satisfied the tool is applicable. It was submitted therefore, that the court cannot come to the view that conclusions based on it are relevant to Mr Hickey or hold significant probative value.

2. That the conclusion reached relating to TRAP-18, cannot assist the court as Mr Hickey engaged poorly in interviewing processes required as part of the TRAP-18. The TRAP-18 tool examines whether an individual carries any of the “eight warning behaviours” of lone actor terrorist attacks. It was found that Mr Hickey partially meets two criteria, those being “fixation” and “warrior mentality”. It was further submitted however, that Mr Hickey’s lack of engagement in interviewing meant that even at its highest, evidence of the TRAP-18 results do not indicate that Mr Hickey has fixations and preoccupations but rather that the court cannot come to a conclusion about that issue.

3. Mr Kerkyasharian further submitted that what both tools address differs from the statutory test for establishing whether the defendant poses an unacceptable risk. He submitted that in the absence of evidence as to how the tests relate directly to the risk of committing a serious terrorism offence, the discussion of specific factors identified in each test is tangentially relevant at best.

232. It was submitted that in the absence of being satisfied the tools used in the RAR are applicable, the court could not come to the view the conclusions based on it are relevant, or, in the alternative, of any significant probative value.

233. It was submitted that the conclusion drawn in the RAR that Mr Hickey has a “Low-Medium risk” of committing of an offence of a kind he has committed in the past does not give rise to a risk of the kind of offending contemplated by the THRO Act. It was further submitted that there was no basis for the court to find that Mr Hickey is at risk of committing a violent offence. It was submitted that this is because Ms Cruickshank declined to conduct an assessment regarding violent offending due to his “lack of historical or current instances of violent behaviour”.

234. Mr Kerkyasharian submitted that Ms Cruickshank failed to specifically address the risk of Mr Hickey committing a “serious terrorism offence” despite being asked to. It was submitted that Ms Cruickshank conflated the risk of committing a serious terrorism offence with consideration of Mr Hickey committing “violent extremist offending” and that “violent extremist offending” cannot equate to the risk of committing a “serious terrorism offence”.

235. It was ultimately submitted that the court could not be satisfied Mr Hickey poses a risk of committing a serious terrorist offence at all, and certainly not to the high standard contemplated by the THRO Act.

236. Submissions were also made as to the applicability of an ESO rather than a CDO should the court otherwise find that the test is been satisfied. For reasons that will become evident below it is not necessary for me to consider those submissions.

237. Mr Kerkyasharian ultimately submitted that merely holding views repugnant to mainstream society and committing minor crimes in the past, does not amount to a terrorist offence. It was submitted that to make a finding to the contrary would not be in accordance with the purposes of the THRO Act which was designed to curtail terrorism risks.

Consideration

238. I have already discussed the statutory prerequisites and the principles derived from the relevant decisions above. I am satisfied that Mr Hickey is a detained offender (s 34(1)(a)), that the application has been made in accordance with Part 3 of the THRO Act (s 34(1)(b)) and that Mr Hickey is a convicted NSW terrorism activity offender: (s 34(1)(c)). That leaves the remaining question of whether I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of either a CDO or an ESO pursuant to ss 20 and 34(1) of the THRO Act. That is, am I satisfied to a high degree of probability that Mr Hickey poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised? If so, I must make orders appointing a psychiatrist and a psychologist to furnish reports to the Court on the results of those examinations: s 38(5) of the THRO Act.

239. I have also had regard to the observations of Johnson J in State of NSW v Cheema (Preliminary) [2020] NSWSC 876 at [161] as to how to consider an application such as this:

“[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: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] , [48]; R v Baden-Clay (2016) 258 CLR 308: [2016] HCA 35 at [47]”.

240. Approaching the application as a whole (rather than as a “mosaic”), it is clear that one of the fundamental difficulties with this application is that Mr Hickey does not fit into any particular category of a potential terrorist. Until recently he ran a successful business employing a number of other electricians. Although he has a criminal history, he has no convictions for violence. His first incarceration occurred in 2018 in relation to a breach of court orders.

241. There can be no doubt that Mr Hickey’s extremist and unpalatable views are long-standing and firmly held. But that is a factor that pulls in opposite directions. The State relies upon that factor as being relevant to his risk; many of his statements supporting racial violence go back to the Stormfront postings in 2013-2015. But Mr Hickey also relies upon that fact in that despite the long-standing nature of his beliefs, he has never committed any crime of violence before let alone any terrorist act. The State relied upon the fact that in October 2011 Mr Hickey observed in relation to Stormfront that “I’m growing disillusioned with the movement. Nobody will get off their ass and do anything.” But, as was submitted on his behalf, he did not in fact resort to violence at that time as a means to achieve his ends.

242. The nub of the State’s position is that the recent videos show an “escalation”, and they were in fact said to be key to this application. As discussed above, particular reliance was placed on the “Ebba’s Revenge” video and the “How the Left has destroyed Australia” video. They are described as manufactured terrorist propaganda. The former was encrypted and circulated. In this respect Ms Single noted Dr Droogan’s expert evidence regarding the fluidity of the right-wing ideology and its opportunistic nature.

243. Having watched the film “How the Left has destroyed Australia” in its entirety I accept that it is a document made by a man who is highly aggrieved and who somewhat irrationally blames the courts and various state officials for his woes. It suggests that there is a conspiracy against him hatched by a combination of magistrates, judges, defence barristers, prosecutors, police and the court reporting services. The film comprises a detailed narrative by Mr Hickey of his unfortunate recent interactions with the authorities. A number of violent images are included in the recording, but Mr Hickey at times expressly disavows therein using violence as an option; a fact that was properly conceded by Ms Single during oral submissions. For example, he states that he had to put any idea of “killdozer” out of his mind (using a bulldozer as a weapon). It is to be accepted that a number of problematic memes are included in the film including a photo of Mr Tarrant and Hitler but when the film is considered its entirety I am not persuaded that it advocates for any act of terrorism; it is merely a venting of rage at how the system has treated him.

244. I am willing to accept that some of what Mr Hickey has written and created could be viewed as advocating support for violent extremism, in particular his expression of support for the actions of Brendan Tarrant. I also accept the expert opinion of Dr Droogan that many of the statements made over the years by Mr Hickey could be seen as advocating support for violent extremism. I accept Dr Droogan’s evidence as to the symbolism of the Nazi iconography used by Mr Hickey including printing swastikas onto the HikDeploy boxes and using the Pepe the Frog logo on the Smerff Electrical website which incorporates an SS uniform. I also accept that over the years Mr Hickey has posted a number of statements which appear to advocate support for violent extremism on Facebook, Pinterest, his work website and other websites.

245. As for the State’s reliance upon Mr Hickey’s statements concerning the manufacture and distribution of HikDeploy. I would make the following comments.

246. First caltrops (road spikes) were not at the relevant time illegal in QLD. In the “How the Left has destroyed Australia” video relied upon by the State, Mr Hickey expressly identifies the relevant legislation in support of his (correct) position that they were not illegal; although he does also note (correctly) that their use is irresponsible and may cause harm.

247. Secondly, although Mr Hickey was initially convicted and sentenced to 3 years imprisonment in New South Wales for his involvement in the manufacture and distribution of the caltraps, some of the charges eventually had to be withdrawn when it was ascertained that they were not prohibited weapons within the meaning of the legislation in New South Wales. His sentence was reduced as a result.

248. Thirdly, I accept that the “marketing” of the caltraps online was highly irresponsible, and Mr Hickey suggested at one stage that they should be used if being pursued by police. I am also prepared to accept that Mr Hickey was motivated by revenge and thought this to be an alternative approach to doing something violent.

249. Fourthly, Mr Hickey has not only served his prison time for his involvement in HikDeploy he has served both his non-parole period and the head sentence.

250. Fifthly, Mr Hickey was not secretive about the marketing of HikDeploy. It attracted the attention of the mainstream media and there was a segment about it on A Current Affair. He used part of his own surname to market it. I endorse the comments of the sentencing judge that his conduct was dangerous and stupid and showed a clear lack of respect and understanding for the role of Queensland police. But it is not clear to me that the marketing of the caltrops represents advocacy for terrorist acts and/or violent extremism.

251. Having trawled through Mr Hickey’s complicated criminal and court history it is apparent that the only two instances of overt racism he has been involved in (other than through the keyboard of his computer) are, his intolerant abuse aimed at the Queensland Islamic Schools (for which he was convicted and sentenced in 2018) and an interaction at a supermarket in 2019 after the Christchurch massacre in which he saw a person apparently of the Muslim faith in the supermarket and suggested to them that New Zealand would be a nice place to be. He was not charged in relation to the second of these incidents. It came to the attention of police because the alleged victim took a photograph of him which was provided to police and Mr Hickey was able to be identified accordingly. Despite the intolerance of these interactions, neither of them could be classified as “serious terrorism offence”. Nor was his circulation of the Ebba’s Revenge” recording treated as a terrorist offence.

252. On behalf of the State it was submitted that, when combined with the circulation of the Tarrant video and supportive statements of Tarrant, Mr Hickey’s views go further than mere expressions or promulgation of extreme or objectionable political views. But such a submission needs to be considered in the context that Mr Hickey has recently made a number of statements expressly disclaiming violence. In an article titled “Simon Hickey’s story” sent to XYZ he complains of the history of harassment he is suffered by the Queensland government culminating in his custody. The story includes the following:

“I have written to XYZ, Andrew Anglin and the Storm, to draw attention to the insane series of events so that other white workingmen are aware of the tactics employed by Western governments to silence any opposition to their policies. I thought I had nothing to fear from police and government because I wasn’t a criminal. I had a 25 year steady work history, a certificate showing no criminal convictions and a reputation for honesty. That meant nothing when they decided to shut me up. I still ended up in jail because I sponsored the Stormer.

Do I regret my association with Anglin and the Stormer? Not at all. I regret the enormous loss and anxiety it has caused myself and my family, but none of that was my doing. We were minding our own business, doing electrical work and poking fun at the Holocaust when these evil parasites force their way into my home and personal life. Even after serious repeated unjustified provocations, I haven’t taken any violent action in response. I still believe that our final victory is inevitable and we don’t need to resort to those sorts of tactics. We will be victorious without violence because of our integrity, our righteousness and our persistence.

(Emphasis added.)

253. On 18 July 2022, Mr Hickey wrote a letter to his father, in response to a letter he received from him the month before. His letter generally addresses his release date, what assistance he may require from his family upon his release, and how he intends to live his life once he is out of prison. Significantly, in this letter Mr Hickey expresses, on several occasions, a desire to live an independent and non-violent lifestyle upon his release. The letter includes the following:

“But this time I think I may have just learned my lesson. I understand now that Australia’s slide towards Brazilian living standards is not something I can halt, or have any effect on, so I have made the conscientious decision to ignore it as much as possible from this point forward. Fuck it. I will now make like everyone else and only worry about myself. I am going to resurrect my business, keep my politics completely separate, make a truck load of money and find myself a nice quiet part of the world to hold out in while it all goes to hell. If our people want to rush headlong toward their own replacement then who am I to argue?

…

I am not staying here I know that much. My home is in Melbourne or Queensland, preferably Melbourne. I need to move on with my life and get back to work.

…

I told the (corrections) woman that I am going to try one more time to live a normal life in Australia. If the authorities refuse to leave me alone then I will have no choice but to leave and find somewhere I can live in peace. I meant it. I hope they afford me this chance.”

(Emphasis added.)

254. The State’s response to Mr Hickey’s recent expressions disavowing violence is that he tells people what they want to hear, such as Ms Cruickshank. I accept that Mr Hickey attempted to sanitise and downplay his beliefs when he spoke to Ms Cruickshank. Examples of this include his explanation that he was “racist” but not a “white supremacist”, that the “day of the rope” was not literally intended, and that “race war” did not necessarily indicate support for violent action (likening it to the “the war on drugs”). He also told her that he found Brenton Tarrant’s manifesto “interesting”, but that it did not justify his actions, and said that there were means other than violence that could be used to justify his anti-immigration stance.

255. Although it is to be accepted that Mr Hickey may well have told Ms Cruickshank what she wanted to hear (he would not be the first prisoner to have done so), it is more difficult to contend that he was lying in his letter to his friend and his father referred to above.

256. Turning to the relevant “unacceptable risk” test, it is pertinent to keep in mind that the relevant “unacceptable risk” (of which the court has to be satisfied to a high degree of probability) is that if released without supervision Mr Hickey would not just commit any terrorism offence; he must be a risk of committing a “serious terrorism offence”.

257. Most of the supporting material before me was directed at establishing that Mr Hickey has advocated for violent extremism and terrorist facts in the past. But, as Ms Single quite properly accepted, incitement to commit a terrorist offence is an offence against s 11.4 of the Criminal Code. Similarly, advocating the doing of a terrorist act or the commission of specified terrorism offences is an offence against s 80.2C of the Criminal Code. Neither of these offences fall within Pt 5.3 and are therefore outside the definition of “serious terrorism offence” in the THRO Act. Rather, it was submitted that “similar or closely related conduct might readily amount to a threat of action that falls within the definition of “terrorist act”, or establishing one of the planning, preparation, recruiting or facilitation offences in Pt 5.3”.

254. I have already set out the three possible risk scenarios above at [153]-[159]. They are:

1. That Mr Hickey may “inadvertently or intentionally” influence, encourage or incite vulnerable others to engage in ideologically motivated violence via his expressed attitudes and shared materials; or

2. That Mr Hickey may provide support for others to plan, prepare or engage in activities through consultation and advice, and utilising his practical skills, knowledge, and innovations; or

3. That Mr Hickey may be triggered by an event related to personal grievance relating to having his occupational and or relationship goals thwarted.

259. It was conceded that the only two potential “serious terrorism offences” applicable to these risk scenarios would be either s 101.5 or s 101.6 of the Criminal Code which are headed respectively, “Collecting or making documents likely to facilitate terrorist acts” and “Other acts done in preparation for, or planning, terrorist acts”. The elements of those offence are as follows.

260. Section 101.5 (Collecting or making documents likely to facilitate terrorist acts) is in these terms:

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

261. Section 101.6 (Other acts done in preparation for, or planning, terrorist acts) is in these terms:

(1)  A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2)  A person commits an offence under subsection (1) even if:

(a)  a terrorist act does not occur; or

(b)  the person’s act is not done in preparation for, or planning, a specific terrorist act; or

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

262. In this regard Ms Single relied upon the observations of the High Court in Minister for Home Affairs v Benbrika (2021) 388 ALR 1; [2021] HCA 4 where the majority (Kiefel CJ, Bell, Keane and Steward JJ) made the following observations at [46]:

“[46] Even where the apprehended serious Pt 5.3 offence does not involve as an element the inflicting, or having as an immediate purpose the actual inflicting, of personal injury on a person or persons, the advancement of terrorist ideology can readily be seen to create a milieu which fosters the prospect that personal injury will be suffered by innocent members of the community. A law directed against the implementation of such an ideology (even by preparatory acts) does not lack the character of a law for the protection of the community from harm simply because the law does not include the immediate likelihood or purpose of inflicting personal injury as an element of the offence. It is important that the restriction upon individual liberty involved in the making of a continuing detention order is dependent upon the risk of an offence being ‘unacceptable’ to the judge in light of the facts as they appear at the time he or she is asked to make the order.”

263. The above statement of principle does not assist in identifying how any of the suggested risk scenarios would lead to Mr Hickey committing an offence contrary to either s 101.5 or s 101.6 of the Criminal Code. Further, with respect to the first risk scenario the use of the word “inadvertently” is problematic. In relation to the second risk scenario, Mr Hickey has never done anything like that before and in relation to the third risk scenario the fact that Mr Hickey may snap in the future in some way does not necessarily mean that he would do so in the context of the commission of a serious terrorism offence.

264. I have considered the State’s submission that the relevant risk is that Mr Hickey could collect or make documents likely to facilitate terrorist acts (s 101.5) or do an act in preparation for or planning a terrorist attack (s 101.6). It is to be accepted that both offences only require Mr Hickey to be “reckless” as to the connection between his conduct and a terrorist act in order to establish the offence. I have also considered the State’s submission that the fact that Ms Cruickshank used the word “incite” in the risk scenarios (which does not identify any serious terrorism offence) does not necessarily confine the scope of this risk to incitement within the meaning of s 11.4 or advocacy within the meaning of s 80.2C of the Criminal Code.

265. I have paid close attention to the RAR prepared by Ms Cruickshank. It is to be accepted that she has assessed Mr Hickey as being a “Medium – High” risk of committing a “terrorism offence” but her analysis does not address the statutory requirement of the unacceptable risk of him committing a “serious terrorism offence”. Nor do any of her risk scenarios fit easily within that relevant statutory test.

266. As is usually the case, a large number of highly intensive conditions are proposed should the court be minded to place Mr Hickey on an ESO. Significantly, it was conceded on behalf of the State that there is a concern that an order compelling him to remain in NSW, where he has no identified supports, would amplify rather than mitigate his risk (particularly as it is connected with a sense of grievance and persecution). Mr Hickey has expressed a desire to live with his father, something he would not be able to do if he was placed on an ESO.

267. Clearly, if the court was satisfied that the relevant test was met and Mr Hickey should be placed on an ESO, the fact that such an order would make Mr Hickey more disgruntled would not be, of itself, a reason to decline to make the order. But the State’s concession that such an order is more likely to increase his risks than mitigate them is a significant one given the objects of the THRO Act. Further, although I accept the State’s submission that compelling Mr Hickey to live in NSW where he has no supports or any connection at all must be balanced against the risk he poses if he is released unsupervised in the community, that “risk” nonetheless pertains to the question of whether he would commit a serious terrorist offence, not a risk of engaging in violent extremism per se.

268. It is somewhat difficult to ascertain Mr Hickey’s support if he was to be released other than on an ESO. The fact remains that he has family in Victoria and continued to run his Queensland business whilst he was residing in New South Wales before he was again incarcerated. I accept Ms Cruickshank’s suggestion that Mr Hickey’s mother and father are potential sources of pro-social support although I also accept that there is a lack of detail as to their actual capacity to assist at this stage.

269. I have considered Ms Single’s submission that Mr Hickey no longer has the protective factor of his wife and child to prevent him acting on his beliefs in a violent way. The fact that they no longer reside in Australia was seen as a matter militating in favour of the orders being made as that protective factor no longer exists. That submission is difficult to assess on the current state of the evidence. It is not known whether his wife (who apparently shares his racist views) intends to return to Australia. Mr Hickey certainly seemed to be very attached to his daughter and would no doubt understand that if he wanted to have further contact with her, he would have to desist from his recent spiralling conduct. It seems to me that this is ultimately a neutral factor in this application.

270. I have had regard to the observations of Lonergan J in State of New South Wales v Kiskonen [2021] NSWSC 915 where her Honour concluded that the defendant in that case was expressing “an extreme political view advocating political change, as opposed to an extremist view advocating illegal violence”. Similarly, Hamill J observed the following in State of New South Wales v Reginald Collingwood (a pseudonym) [2021] NSWSC 1365 at [113]:

“.. it is important to remember that the “unacceptable risk” being evaluated is the risk of a particular type of crime; namely a serious terrorism offence. It is not the risk that the defendant may commit any criminal offence, or any crime of violence, or even an extremely grave crime of violence.”

271. There can be no doubt that extremist organisations on the far right are becoming a matter of increasing concern for law enforcement. Only 15 months ago all of the terrorist organisations listed by the Attorney General under the Criminal Code (with the exception of the Kurdistan Workers’ Party (PKK)) were terrorist groups expounding various forms of Islamic extremism. Presently, of the 29 organisations listed there are three organisations that might be categorised as far right “white supremacist” groups. They are (along with the date that they were listed): Sonnenkrieg Division (11 August 2021), The Base (10 December 2021) and National Socialist Order (18 February 2022).  Nothing in the supporting documentation before me suggested that Mr Hickey has any direct association with any of these groups.

272. Making the evaluative assessment required under an application such as this is not an easy one. To what extent does the fact that Mr Hickey publishes comments in which he praises people such as Mr Tarrant lead to a conclusion that he is an unacceptable risk of being involved in a similar act of terror?

273. Having considered all of the material before me in the context of the relevant statutory test, it seems to me highly probable if not inevitable that Mr Hickey will continue to adhere to his far right views. It may even be the case that he continues to express views that could be seen to advocate terrorist acts and violent extremism. But the THRO Act provides a higher test than that before any orders can be made, even at this preliminary stage.

274. I have come to the conclusion that I am not satisfied that the supporting documentation, if proved, would establish to a high degree of probability that there is an unacceptable risk that Mr Hickey would commit a “serious terrorism offence” if not detained or supervised.

ORDERS

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

1. The Summons is dismissed.

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

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Amendments

07 November 2022 - Coversheet correction

Decision last updated: 07 November 2022