State of New South Wales v Mustapha

[2022] NSWSC 87

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Mustapha [2022] NSWSC 87

Hearing dates:

12 and 26 November 2021

Date of orders:

6 December 2021

Decision date:

09 February 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) An order pursuant to ss. 24(5) and 38(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”):

(a) appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) directing the defendant to attend those examinations.

(2) Pursuant to ss 41 and 42(1) of the Act the defendant be subject to an Interim Detention Order for a period of 28 days commencing from 7 December 2021.

Catchwords:

CIVIL – High Risk Terrorism Offender – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim relief – application for appointment of a psychiatrist and psychologist – application for interim detention order – alternative application for interim supervision order – validity of application pre-conditions in ss 23(3)(b) and 37(4)(b) – preliminary hearing principles – whether weigh probative value of supporting documentation – relevance of defendant’s evidence – statutory scheme – meaning of serious terrorism offence – nature of offences under Pt 5.3 of the Criminal Code – principles regarding unacceptable risk – threats – ss 25(3) and 39(3) factors – reports of any other assessment by a qualified psychiatrist or registered psychologist – reports prepared by Corrective Services NSW or the Police as to the extent to which the offender can reasonably and practicably be managed in the community – any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate – willingness and level of the offender’s participation in treatment or rehabilitation and initiatives – any beliefs or commitments of the offender that support engaging or participating in terrorism activities – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant poses an unacceptable risk of committing a serious terrorism offence – safety of the community – discretion to make an interim detention order or interim supervision order – interim supervision order insufficient to manage risks – interim detention order made – orders made for appointment of experts

Legislation Cited:

Crimes (Administration of Sentences) Act 1993 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Serious Sex Offenders) Act 2006 (NSW)

Criminal Code 1995 (Cth)

Evidence Act 1995 (NSW)

Terrorism (High Risk Offenders) Regulation 2018 (NSW)

Terrorism (High Risk) Offenders) Act 2017 (NSW)

Cases Cited:

Attorney General for NSW v McGuire (Preliminary) [2021] NSWSC 1222

Attorney General for NSW v Tillman [2007] NSWCA 119

Attorney General for NSW v Winter [2007] NSWSC 611

City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Cornwall v Attorney General for NSW [2007] NSWCA 374

Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43

Kamm v State of NSW (No 4) (2017) 345 ALR 669; [2017] NSWCA 189

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

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Minister for Home Affairs v Pender [2021] NSWSC 1644

Osman v State Parole Authority & the Attorney General of NSW [2020] NSWSC 1392

State of New South Wales v Bugmy(preliminary hearing) [2016] NSWSC 1128

State of New South Wales v Church [2021] NSWSC 246

State of New South Wales v Currie (Final) [2021] NSWSC 676

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

State of New South Wales v Manners [2008] NSWSC 1242

State of NSW v Alam [2020] NSWSC 295

State of NSW v Avakian (Preliminary) [2021] NSWSC 245

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

State of NSW v Ceissman [2018] NSWSC 508

State of NSW v Cheema [2020] NSWSC 876

State of NSW v Dunn(a pseudonym) [2018] NSWSC 1008; (2018) 273 A Crim R 238

State of NSW v Elzamtur [2019] NSWSC 186

State of NSW v Fayad(Preliminary) [2020] NSWSC 1681

State of NSW v Fisk [2013] NSWSC 364

State of NSW v French (Final) [2017] NSWSC 1475

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

State of NSW v Haidar [2020] NSWSC 38

State of NSW v Hampton [2018] NSWSC 360

State of NSW v Ibrahim (Final) [2021] NSWSC 793

State of NSW v Love (Preliminary) [2019] NSWSC 1660

State of NSW v Lynn [2013] NSWSC 1346

State of NSW v Lynn (Preliminary) [2020] NSWSC 1066

State of NSW v Manners [2008] NSWSC 1242

State of NSW v McGee (Preliminary) [2019] NSWSC 53

State of NSW vNaaman (No 2) [2018] NSWCA 328

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

State of NSW v Reay [2014] NSWSC 1362

State of NSW v Sancar [2016] NSWSC 867

State of NSW v Sturgeon [2019] NSWSC 559

State of NSW v Thurston [2017] NSWSC 1760

State of NSW v Wilson (Preliminary) [2017] NSWSC 1367

The State of NSW v Sharpe [2017] NSWSC 469

Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Mejid Mustapha (Defendant)

Representation:

Counsel:
P McGuire SC with S McGee / C Melis (Plaintiff)
D Buchanan SC with E Kerkyasharian (Defendant)

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

File Number(s):

2021/255359

Judgment

1. By summons filed on 7 September 2021 the State of NSW (“the plaintiff”) sought orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) in relation to Mr Mejid Mustapha (“the defendant”).

2. At a preliminary hearing the plaintiff sought orders by way of interim relief pursuant to ss 24(5) and 38(5) of the Act:

1. appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

3. The plaintiff also sought by way of interim relief an order pursuant to ss 41 and 42(1) of the Act that the defendant be subject to an Interim Detention Order (“IDO”) for a period of 28 days, and an order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the IDO.

4. In the alternative, by way of interim relief the plaintiff sought orders:

1. pursuant to s 27 of the Act, that the defendant be subject to an Interim Supervision Order (“ISO”) commencing on the date of this order;

2. pursuant to s 28(1) of the Act, that the ISO be for a period of 28 days; and

3. pursuant to s 29(1) of the Act, directing that the defendant comply with the conditions set out in the schedule to the summons for the duration of the ISO.

5. The plaintiff also sought an order restricting access to the court file (summons at [10]).

6. The defendant is currently serving an aggregate sentence of 40 months’ imprisonment for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 (“the index offences”). His head sentence is due to expire on 7 December 2021.

7. The defendant was first eligible for parole, after completing a separate sentence, on 21 October 2020. He was initially refused release to parole by the State Parole Authority (“SPA”) on 21 August 2020 on the basis he posed an unacceptable risk to community safety, by reference to a finding that the defendant’s index offending and instances of behaviour in custody demonstrated that he held “violent extremism ideology”. The decision to refuse release was confirmed on 1 December 2020.

8. On 27 August 2021, the SPA again considered the defendant’s release to parole at a private meeting. The SPA determined that the defendant was a “terrorism related offender” under Pt 6 of Div 3A of the Crimes (Administration of Sentences) Act 1993 (NSW), and was not satisfied the defendant will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism. Accordingly, release to parole was refused, with the matter stood over to a date to be fixed for review hearing.

9. After a hearing before this Court over two days, the Court made the following orders:

1. An order pursuant to ss 24(5) and 38(5) of the Act:

1. appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

2. An order pursuant to ss 41 and 42(1) of the Act that the defendant be subject to an IDO for a period of 28 days commencing from 7 December 2021.

3. An order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the IDO referred to at order 2 above.

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

10. These are the reasons for the making of those orders.

Evidence before the Court

11. Mr P McGuire SC with Ms S McGee and Ms C Melis appeared for the plaintiff and relied upon the following evidence in support of the applications made in the preliminary hearing:

1. Affidavit of Rebecca Iacono affirmed 6 September 2021 together with a three volume Exhibit RI-1. Exhibit RI-1 contained key documents relied upon by the plaintiff and obtained by the plaintiff pursuant to Pt 5 of the Act (including audio-visual materials contained on the USB (Tabs 90-91 and 104). Exhibit RI-1 also contained the following reports:

1. Risk Assessment Report (“the RAR”) prepared by Filipa Abreu, senior psychologist, Countering Violent Extremism (“CVE”) Programs, Corrective Services NSW, dated 20 July 2021 (addressing ss 25(3)(b) and 39(3)(b) of the Act).

2. Supplementary Risk Assessment Report prepared by Ms Abreu, dated 31 August 2021.

3. Risk Assessment Report prepared by Shane Bagley, Applications and Operational Governance Officer, Terrorism High Risk Offender Unit, Corrective Services NSW.

4. Corrective Services NSW report dated 16 August 2021, (addressing ss 25(3)(d) and 39(3)(d) of the Act).

5. NSW Police ESO Management Report prepared by Plain Clothes Senior Constable Jimmy Wang, High Risk Terrorist Offenders Unit, dated 30 July 2021 (addressing ss 25(3)(d) and 39(3)(d) of the Act).

6. Expert report prepared by Dr Rodger Shanahan, dated 27 May 2021.

2. Affidavit of Sarah Malaeb affirmed 29 June 2021.

3. Affidavit of Andrew Tayler affirmed 26 May 2021.

4. Affidavit of Troy Brien sworn 28 June 2021.

5. Second affidavit of Kristin Stoeckl affirmed 1 September 2021.

6. Affidavit of Jimmy Wang sworn 8 September 2021, together with exhibit JW-1.

12. A number of affidavits filed by the plaintiff were not relied upon in the preliminary hearing but rather there was produced to the Court a statement of Agreed Facts (“the Agreed Facts”) executed by the solicitors for each party. The Agreed Facts were for the purposes of the preliminary hearing only and it was further agreed, pursuant to s 191 of the Evidence Act 1995 (NSW), that the facts were alleged in the plaintiff’s supporting documentation. Those Agreed Facts were as follows:

1. On 6 April 2018, in the course of the arrest of the defendant, police seized from the defendant a mobile phone ("iPhone"), which belonged to the defendant.

2. On 9 April 2018, Detective Senior Constable Brett McCormack undertook a Cellebrite extraction examination of that iPhone. Some of the photos and videos downloaded from the iPhone and produced in the extraction report are located in Exhibit RI-1 Vol 2 behind Tabs 91 and 94.

3. On 4 September 2019, Senior Constable Amber Hart accessed the iPhone and took photographs of the iPhone. Those photos are located in Exhibit RI-1 Vol 2 Tab 95.

4. On 7 August 2018, during the course of the arrest of the defendant, police seized from the defendant a mobile phone ("Nokia"), which belonged to the defendant.

5. On 8 August 2018, Senior Constable Ghouse Mohammad obtained a Cellebrite extraction examination report of the Nokia. Two audio files titled 'NasheedRingtonel' and 'Lana-AI-Murhafaat' identified in the Cellebrite extraction report were downloaded from the Nokia, translations of which were located in Exhibit RI-1 Vol 2 Tabs 92 and 93.

6. On 10 August 2018, during the execution of a search warrant by police where the defendant had been residing at the time of his arrest on 7 August 2018, police seized from the loungeroom a Toshiba hard drive (“the Toshiba hard drive”).

7. On 1 November 2018, the Toshiba hard drive was the subject of a digital preview examination by Detective Senior Constable Stephen King. The results of the investigator's examination and the examination of other materials seized during the search warrant are recorded in the investigator's note attached and marked “A”.

8. Between at least 29 November 2017 and 9 December 2017, the defendant appears to have operated an Instagram account with the username "abu_blax".

9. Between at least 26 July 2018 and 5 August 2018, the defendant appears to have operated an Instagram account with the username "abu_blacks".

10. Between at least 29 July 2018 and 7 August 2018, the defendant appears to have operated a Facebook account with the username "Abu Blacks".

11. The social media materials located at Tabs 90, 91, 96 and 97 of Exhibit RI-1 were downloaded or otherwise captured from the Facebook and Instagram accounts which appear to have been operated by the defendant.

13. Annexure A provided as follows:

1. In August 2018, the defendant was arrested following a breach of bail and a search warrant was subsequently issued. During the search warrant a number of items were seized and reviewed.

2. On the 8 November 2018, the Toshiba Hard Drive, was reviewed and downloaded by DSC Stephen King from the Terrorism Investigations Squad.

3. The Toshiba Hard Drive contained a number of files.

4. The following note was made by the investigator in relation to the folder titled “3^rd Nullifier Explained Shaykh by Mujahid Abu Malik”:

…two videos relating to Islamic teachings. The “3^rd Nullifier” is a teaching about “not recognizing the heresy of an infidel”. This Nullifier has been used by Abu Sulayman when preaching at the Al-Risalah bookstore to promote that anyone who is not a Muslim is an infidel.

5. In relation to the folder titled “Anjem Choudry” the following note was made:

Within the Anjem Choudry folder, one video and one audio file were located. According to open source information, Anjem Choudry is a convicted terrorist from the United Kingdom and openly advocates for Islamic State.

6. There was a number of files identified as relating to “Anwar al-Awlaki. The investigator made the following note:

…Anwar al-Awlaki, a famous al-Qaeda affiliate who advocates acts of terrorism. These have not been provided to the HRTO for review at this time.

7. A number of files of interest were located within the folder titled “Baqiyyah”, which was identified as Arabic for “remaining” and a term often associated with Islamic State. The following note was made:

The Al-Hayat media centre is one of Islamic State’s larger media centres which caters specifically to a Western audience. The other media cetres are in Wilayats (provinces) of the so-called Islamic State. The above videos are Islamic State propaganda and recruitment videos, many of which show graphic imagery of beheadings, dead bodies, air strikes and war type scenes.

8. The following folders were identified as containing Islamic sermons and teachings:

1. Abu Baraa Tauhid Classes;

2. Battle of Saffin

3. Musa Jabril

4. Shaykh Faisal

5. Shaykh Musa Jabril Gems of Ramadan; and

6. Shaykh Musa Jabril Lectures & Aio.

Preliminary Hearing

The Powers of the Court

14. The defendant contended that the plaintiff’s application failed to comply with ss 23(3)(b) and 37(4)(b) of the Act because the RAR relied upon by the plaintiff in support of the application did not meet the requirements of those provisions.

15. Sections 23 and 37 of the Act set out some of the requirements for an application to be made for an IDO and ISO respectively. Subsections 37(4) and 23(3) are in the in essentially the same terms, and provide:

(4)   An application must be supported by documentation:

(a) that addresses each of the matters referred to in section 39 (3), and

(b) that includes 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.

16. The defendant contended, first, that the issue fell to be considered at the preliminary hearing and, secondly, the question of whether the existence of such a report under ss 23(3)(b) and 37(4)(b) of the Act was a jurisdictional fact.

17. There was no dispute as to the first proposition which I accept.

18. Interim relief, of the nature sought by the plaintiff, is predicated on the Court being satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (“ESO”) or continuing detention order (“CDO”) ss 24(5), 27, 38(5) and 41 of the Act. One of the matters that the Court must be satisfied of, when making final orders is that an application has been made in accordance with the relevant Parts (see ss 20(b) and 34(1)(b)), which in turn imports consideration of the need for an application to include documentation:

that includes 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" ss 23(3)(b) and 37(4)(b).

See, although in a different context, Attorney General for State of NSW v McGuire (Preliminary) [2021] NSWSC 1222 at [23]-[26].

19. Such an approach at preliminary hearing is consistent with other decisions under the Act. In State of NSW v Fayad (Preliminary) [2020] NSWSC 1681 (“Fayad”), Johnson J recorded his satisfaction that "a number of formal requirements under the Act have been met, inter alia, that “the application is supported by documentation addressing the matters referred to in s 23(3) of the Act, including a risk assessment report prepared by a registered psychologist which addresses the likelihood of the defendant committing a serious terrorism offence" at [85]; see also State of NSW v Naaman (No 2) [2018] NSWSC 1329 per Campbell J at [14]-[18] (“Naaman”).

20. The second proposition advanced by the defendant was originally couched in terms of the jurisdiction of the Court. In further written submissions filed by the defendant on 16 November 2021, the defendant contended that the Court lacked power to entertain the application because of the failure to comply with ss 23(3)(b) and 37(4)(b) of the Act. That position was reached because of a recognition that jurisdiction is the authority to set aside and characteristically an exercise of jurisdiction is attended by an exercise of power. Upon that basis it was accepted that the jurisdiction to decide matters under the Act is conferred by the Act itself.

21. Nonetheless, it was submitted that, as a matter of statutory construction:

1. the requirements of ss 20(b) and 34(1)(b) that “an application is made in accordance with [Part 2 or Part 3 respectively]”; and

2. the requirements of ss 23(3)(b) and 37(4)(b) as to the application needing to be accompanied by a risk assessment report “that assesses the likelihood of the eligible offender committing a serious terrorism offence”,

are jurisdictional facts.

22. It was submitted that having regard to the text, its context and the purpose of the Act, the Court would be satisfied that those requirements comprise factual criteria the satisfaction of which enlivens the exercise of the statutory power to make an ESO or a CDO. If the criteria be not satisfied then a decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker: City of Enfield v Development Assessment Commission (2000)199 CLR 135; [2000] HCA 5 at [28]; Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43].

23. The plaintiff did not dispute that the powers conferred by ss 20 and 34 of the Act were conditional upon the criteria identified in those provisions. Nor was it disputed that those criteria amount to jurisdictional facts.

24. Given the conclusion that I will reach in relation to this question, it is strictly unnecessary to determine the nature of the legal requirements imposed by ss 20(b) and 34(1)(b). Nonetheless, there is merit in the contention advanced by the defendant. The Court must be satisfied of the existence of facts comprising the requirements set out in ss 23(3)(b) and 37(4)(b) of the Act before it may exercise powers they confer to make an ESO or CDO and thus must be satisfied of those facts before it can make interim orders. The powers to make an ESO under s 20 or a CDO under s 34 are conditional upon the existence of a number of acts, one of those being upon an application having been made in accordance with Pt 2 or Pt 3. The RAR is a report that relevantly arises for consideration under ss 23(3)(b) and 37(4)(b). Furthermore, the power to appoint experts can be exercised only after a preliminary hearing and is relevantly conditioned by the same test as the power to make an ISO or IDO upon the satisfaction of the Court that the matters alleged in the supporting documentation would, if proved, satisfy the making of a final order for either an ESO or CDO as the case may be.

25. The defendant contended that the plaintiff had failed to comply with the requirements of the Act that the application referred to in ss 20(b) and 34(1)(b) include a report of, inter alia, a registered psychologist, that assesses the likelihood of the eligible offender committing a serious terrorism offence and that, for the purposes of ss 23(3)(b) and 37(4)(b) its application in respect of the defendant was consequently not made in accordance with Pts 2 and 3 of the Act. It was contended that the RAR, relied upon for the purposes of ss 20(b) and 34(1)(b), did not assess the likelihood of the eligible offender committing a serious terrorism offence for two reasons as follows:

1. there is no direct assessment of the likelihood of the defendant committing a serious terrorism offence; and

2. the opinions contained under the heading “Risk Scenarios” in the RAR did not amount to an expert assessment of the risk of the specific kind of serious terrorism offence that the defendant might commit.

26. As to the first contention the defendant submitted:

1. As the plaintiff conceded, Ms Abreu’s RAR “[did] not directly assess the likelihood of the defendant committing a serious terrorism offence”. The plaintiff further conceded that there was no:

direct or expert evidence of the specific kind of serious terrorism offence that the defendant might commit, or the likely or possible consequences of such an act.

2. In oral argument, by reference to Ms Abreu’s “risk scenarios”, counsel for the plaintiff took a somewhat different position.

3. It is true that Ms Abreu reported on the result of her administration of an assessment tool, Violence Extremism Risk Assessment Version 2 Revised (“VERA-2R”). However, the requirement was not for a report as to the result of the administration of a tool or a test. The requirement is for:

a report that assesses the likelihood of the eligible offender committing a serious terrorism offence.

4. “Assessment” is the act of evaluating or estimating, in this case the specific risk of committing a “serious terrorism offence” within the meaning of that expression in the Act. Assessment can be distinguished from “discussion” of an issue. Assessment requires a direct formulation of what the likelihood is. In the absence of that formulation, there is no assessment, “direct” or otherwise.

5. A report as to the outcome of the application of a “tool” which categorises the risk that the defendant will do something terrorism-related does not amount to an assessment of the risk of him committing a “serious terrorism offence” within the meaning of that expression in the Act. There is nothing in Ms Abreu’s report which suggested that the VERA-2R tool assessed the likelihood of the defendant committing an offence as defined in s 4:

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

6. If the Legislature had intended that, in considering an application under the Act, the Court would be assisted by a report which contained no assessment by the relevant expert but which reported as to the result of the application of a tool which assessed generally the offender’s degree of risk for engaging in terrorism generally or for engaging in conduct of the general nature of the types of offences which are “serious terrorism offences”, it would have said so. The fact that the Legislature has specified that the risk has to be as to the likelihood of committing at least one particular offence in a category of very specific offences, means that the failure to provide an assessment of that nature is fatal to the enlivenment of the power to make relevant orders under the Act.

27. As to the second contention, Mr Buchanan SC, with whom Mr E Kerkyasharian appeared, submitted:

1. In the course of oral submissions on the afternoon of 12 November 2021, counsel for the Plaintiff accepted the proposition that that which is under the heading “Risk Scenarios” in the RAR amounts to an expert assessment of the risk of the specific kind of serious terrorism offence that the defendant might commit.

2. However, an analysis of the paragraphs under that heading revealed the following:

[118] - Ms Abreu has assessed that any threats of violence that the defendant will make “will be highly personal and emotionally laden”. That is they will not amount to a terrorism offence as they will not be a threat “made with the intention of advancing a political, religious or ideological cause” as required by the definition of terrorist act in the Criminal Code 1995 (Cth).

[119] - Ms Abreu spoke of “acting out” behaviour targeted at people in authority over the defendant. Such behaviour is not prima facie criminal, and certainly does not amount to serious terrorism offence as defined in Part 5.3 of the Criminal Code.

Ms Abreu also spoke of the defendant using drugs, which may have led to his impulsivity and consequential thinking being disinhibited. In that contingency, Ms Abreu opined that the defendant may use religion to justify his criminality. Again, this is short of a terrorism offence. In order to be terrorism, proscribed conduct must have the intention of advancing a cause. The use of a cause to justify conduct does not lead to a terrorism offence being committed, let alone a serious terrorism offence.

[121] - Ms Abreu opined that it is not clear what contact the defendant may be in with terrorist groups but, even if he has contact:

it appears that he may have been more on the periphery, potentially

due to his personality traits.

That is, because of his personality, Mr Mustapha is unlikely to be in the thick of a terrorist group. If this is an assessment of his likelihood of committing a serious terrorism offence, it is effectively an assessment that he is quite unlikely to commit a terrorist offence, and certainly not in a serious way that gives rise to a risk justifying intrusive orders.

[122] - Ms Abreu opined that “his risks” will likely increase if he attempts to establish and foster “problematic” connections.

[123] - Ms Abreu made essentially the same point as [122], but relating to internet usage. She also went on to opine that the defendant’s “influence over others is unknown to the author”. That is, the expert who had access to all the material that the Court has been taken to cannot opine that he has a high risk of influencing others, and thus committing the types of serious terrorism offence arising out of that influence.

[124] - Ms Abreu speaks of the absence of “protective factors”. The Court should be careful not to take the absence of protective factors as an indicator of increased risk.

[125] - Ms Abreu began by assuming that the defendant acts on the risk and described how he would do so.

[126] - Ms Abreu opined that the information available is unable to support the conclusion that the defendant engaged in foreign incursion behaviour (a matter which distinguishes the defendant from Amin Elmir).

3. If this is the material upon which the plaintiff relied to establish that Ms Abreu’s RAR satisfied the requirements of ss 23(3)(b) and 37(4)(b) then, leaving aside the failure to identify any particular “serious terrorism offence” under the Act as being a subject offence, it clearly shows that Ms Abreu is unable to assess the defendant as being likely to commit an offence of the type comprising a “serious terrorism offence” under the Act.

28. Ultimately, the defendant contended that the application by the plaintiff had not been made in accordance with Pts 2 and 3 of the Act and that, accordingly, the Court did not have power to make an order for the appointment of experts or final orders or interim orders.

29. I will turn to particular aspects of the RAR momentarily but it may be noted at the outset that I accept the contention advanced by the plaintiff that the risk of the defendant engaging in “extremist violence offending, particularly politically motivated violence or terrorism activity” which is assessed in the RAR is inextricably linked to the likelihood of the defendant engaging in conduct which amounts to a serious terrorism offence.

30. The risk of a person engaging in an act of violence extremism, politically motivated violence and terrorism is, therefore, the counterpart, if not directly equivalent to, the risk of that person engaging in a terrorist act or other offences that fall within Pt 5.3 of the Criminal Code, noting that, with respect to both a CDO and an ESO, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision (see ss 20(1)(d) and 34(1)(d) of the Act).

31. It follows that any failure to make an assessment of risk expressed directly in terms of the statute via a serious terrorism offence does not necessarily mean that the assessment does not fall within the purview of ss 23(3)(b) and 37(4)(b) of the Act. It certainly does not follow that a failure to express an expert opinion in terms of the ultimate legal issue before the Court renders the report beyond the requirements of those provisions.

32. As will be observed, the opinions expressed in the RAR deal with the risk profile of the defendant with identified risk scenarios to assess the likelihood of the defendant committing a serious terrorism offence. Furthermore, Ms Abreu utilises a structured professional judgement tool, VERA-2R, to make an assessment that the defendant was at a moderate to high risk of engaging in an act of violence extremism, politically motivated violence and/or terrorism. In doing so, the RAR assessed the relevant material risks for the purposes of ss 23(3)(b) and 37(4)(b) and despite focussing on risk, met, in my view, the requirements of the Act, under those provisions.

33. It is sufficient for the purposes of providing the underpinning for these conclusions to refer to the relevant components of the RAR satisfying the requirements of ss 23(3)(b) and 37(4)(b) of the Act, although, as emphasised by the plaintiff, that assessment should properly be cumulative in nature.

34. The assessment should properly commence by reference to the following broad considerations:

1. The report is prepared by a qualified registered psychologist, Ms Abreu.

2. The letter of instruction dated 31 May 2021 directed Ms Abreu to "prepare an expert report in the form of a Risk Assessment Report in relation to Mr Mustapha in anticipation of a potential application, pursuant to ss 23(3)(b) and 37(4)(b) of the Act”.

3. The letter of instruction included the definition of a "serious terrorism offence" at Attachment 3 and included reference to the offence provisions in Pt 5.3 of the Criminal Code which cover a broad spectrum of conduct.

4. Question 6 of the letter of instruction draw's Ms Abreu's attention to the relevant definitions found at Attachment 3.

5. Ms Abreu assessed the defendant's risk of violent re-offending as High (see executive summary and [86]).

6. Ms Abreu assessed the defendant's risk of engaging in an extremist act of violent, politically motivated violence and/or terrorism activity as within the Moderate-High range (see executive summary and [93]).

7. The last sentence of [94] which includes Ms Abreu's observation, in relation to a number of social media posts, "whilst a number of posts were identified as only religious, others were identified as aligning within a narrative of violent extremism".

8. Ms Abreu opined that the defendant’s presentation "suggests the presence of an ideology that justifies the use of violence, capacity to undertake violence, a number of underlying motivations and a verbalised intention to use violence", which the plaintiff submitted, when read in context of the preceding sentence, the reference to "violence" is in relation to "extreme acts of violence, politically motivated and/or terrorism activity" (see executive summary).

9. Ms Abreu's assessment that the defendant "appears to possess a number of underlying motivating factors which serve to increase his susceptibility to engage in violent extremism, politically motivated violence, or terrorism" (at [103]).

35. Under the heading "Risk Scenarios", Ms Abreu referred to the Act and risk scenario considerations being limited to "the risk of engaging in acts of violent extremism, politically motivated violence and serious terrorism activity" (at [117]-[126]), including the assessment that:

1. should the defendant to continue to engage in behaviour, such as threats of violence within a religious/racial context, "it is reasonable to assume that others will perceive his behaviour as supporting, promoting or demonstrating willingness to engage in acts of violent extremism, politically motivated violence or terrorism activity" (at [118]);

2. as the defendant will "likely make threats within the violent extremism context, an act of violence will likely be viewed by authorities (and members of the public) through this lens" (at [120]);

3. the defendant's risk will "likely increase should he continue to attempt to establish and foster problematic connections online and offline, particularly given his susceptibility to influence and his needs associated with seeking purpose and meaning in life, identity formation and a search for status and recognition. In custody, continued placement, proximity, and associations with other offenders known to espouse extremist views may increase his engagement with extremist ideology and anti-government, anti-authority sentiment and further facilitate his development of an extremist peer network" (at [122]);

4. the defendant's "susceptibility to be further radicalised and/or risk of engagement in a violent extremism offence may increase should he continue to seek out connection with others; and continue to access and disseminate online material relevant within a violent extremism context. His involvement in providing Da'wah and the potential influence he may have over others seen as vulnerable, also remains an area of concern given his rigid and uncompromising views of Islam and how it should be practiced" (at [123]);

5. that the defendant appears with "minimal protective factors which would assist to mitigate his risk of further radicalisation and/or engagement in violent extremist activities" (at [124]); and

6. the defendant's "risk of engagement in acts of violent extremism, politically motivated violence or terrorism may increase with any further perceived grievances or injustices towards him, particularly should he view these to be religiously motivated. Overall, the vulnerabilities that the defendant displays may also indicate that he is at an increased risk and/or imminence of an act of extremist violence. This includes continued alignment or increased fixation with beliefs and attitudes that justify violence on the basis of religious matters, the verbalising of these beliefs, a continued perception of being mistreated by others due to his religion and/or race, the continued seeking out of extremist material (online and offline) and/or connections with individuals known to proselytise extremist views, engagement in illicit substance use to manage his emotional experiences and/or to self-medicate, a continued tumultuous family dynamic which remains unaddressed, notable increases in his threats of violence towards others; increased hostility and impulsive behaviours, an increase in his reactivity to perceived grievances, continued unreceptiveness to engage with support services to assist him to develop effective emotional regulation and risk mitigating skills” (at [125]).

36. The plaintiff also relied upon the following relevant factors assessed by Ms Abreu which also bear upon the question of the relevant statutory precondition as follows:

1. under the heading "History of Support of Violent Extremism or Politically Motivated Violence", Ms Abreu identified a number of behaviours "which may be relevant to the context of violent extremism, politically motivated violence and terrorism", and categorised them into "Online Behaviours", "Written Material", "Verbal Statements and Overt Behaviours", and "Travel" (at [49]-[63]); and

2. that the defendant was noted to possess a "number of relevant proximal warning behaviours and distal characteristics which indicates his risk warrants both monitoring and relevant intervention to manage this risk" (at [128]).

37. The defendant did not refer to authority of this Court which, in my view, had a direct bearing upon the determination of the preliminary questions raised by the defendant. These authorities reinforce the conclusion reached as to this question in this judgment.

38. In Naaman, the defendant argued that the proceedings were incompetent because the conditions in s 23 were said not to have been satisfactorily addressed in the RAR. There, Campbell J, held the proceedings to be competent, stating at [16]-[18] that, notwithstanding the fact that the RAR stated “an adequate assessment of commitment to and support of ideologically motivated violence is unknown”, the RAR’s focus on “considerations specifically relevant to the risk of engaging in serious terrorism activity, rather than engaging in some other form of crime”, and the opinion that the defendant “presented as at a low risk of engaging in extremist violence” meant the RAR did “assess” a “material risk for the purpose of s 23(3)(b)”

39. In Fayad, the RAR had opined that the defendant posed a “moderate risk of engaging in violent extremist behaviour”, and that should the defendant commit a serious terrorism offence it was “most likely” that this would include him being a member of a terrorist organisation, recruiting, providing funds or support and “less likely” that he would himself carry out an act of religious inspired violence. In that decision, Johnson J held at [85] that such a report satisfied the requirements of s 23(3) in that it addressed the likelihood of the defendant committing a serious terrorism offence.

37. The approach to the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act” is productive of the same conclusion albeit by reference to the requirements of ss 6(3)(b) and 14(3)(b) of that Act.

38. In State of NSW v Lynn (Preliminary) [2020] NSWSC 1066, N Adams J at [148]-[149], whilst acknowledging that “risk” and “likelihood” are different concepts, held that “risk” incorporates an assessment of likelihood and that it is not possible to assess an unacceptable risk under the CHRO Act without having regard to the risk of further offending. Her Honour further held that the fact that an RAR focussed on “the bigger picture of “risk” did not mean the requirements of s 14(3)(3) were not met.

39. Risk assessment protocols and tools have been held to be permissible means by which likelihood may be assessed in CHRO Act proceedings: State of NSW v Avakian (Preliminary) [2021] NSWSC 245 at [98]-[99].

40. In my view, the RAR satisfies the requirements of ss 23(3)(b) and 37(4)(b) of the Act and that, accordingly, the statutory preconditions for the application in that respect have been met. The application is thereby competent.

Preliminary Hearing: Principles

An Introduction to the Defendant’s Submissions

44. The defendant submitted that the Court should, in the course of a preliminary hearing, weigh the probative value of the plaintiff’s evidence as to the matters alleged in the supporting documentation by the terms of the documentation relied upon per se and by reference to any evidence addressed by the defendant. In support of that submission the defendant emphasised the provisions of ss 50 and 54 of the Act in order to distinguish some authority of this Court,

45. The judgment in State of NSW v Golding (Preliminary) [2018] NSWSC 1041 (“Golding”) (per R A Hulme J) should be distinguished because the judgment was made under the CHRO Act and relied upon the judgment of the NSW Court of Appeal in Attorney General for NSW v Tillman [2007] NSWCA 119 at [98] (“Tillman”). In particular, the Court should not approach the matter as set out in Golding at [17] where it was stated that it is not for the Court at a preliminary hearing to weigh up the documentation or to predict the ultimate the result or to consider what evidence the defendant might call at the final hearing.

46. The judgment in Tillman concerned a preliminary hearing under the then Crimes (Serious Sex Offenders) Act 2006 (NSW) (“CSSO Act”) which later became the CHRO Act. Section 27 of the CSSO Act stated that the Act did not affect the right of any party to proceedings under the Act to call witnesses and give evidence or cross examine witnesses. It was found in Tillman at [39] that the powers to make interim orders are capable of exercise from time to time in the light of the situation then prevailing and that s 27 would have effective work to do in that respect where the defendant resisted the making of the interim order, even though the formal requirements of the Act were satisfied. Thus, the defendant may call evidence at a preliminary hearing particularly having regard to the counterpart provision to s 27 in s 50(1) of the Act.

47. Whilst the Court of Appeal in Tillman at [98] found that, in determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing the supportive documentation or predicting the ultimate result, that judgment was given with respect to the CSSO Act. Neither the CSSO Act or the CHRO Act has a counterpart provision to s 50(2) of the Act which provides for a document, report or other information to be admissible in proceedings under the Act, despite any Act or law to the contrary. According to s 50(2), no rule of evidence is affected with respect to the relevance or probative value of the document or report or other information once it is admitted into evidence.

48. The inference to be drawn from s 50(2) of the Act, when read in conjunction with s 54 is that, in a preliminary hearing under the Act, defence evidence can be received and can affect the weight to be given to matters alleged in the supporting documentation which is said to establish the pre-conditions to a determination under s 34(1)(d) or the counterpart s 20(d) (with respect to interim supervision orders). Further, the Court can thereby weigh the probative value of the plaintiff’s evidence as to matters alleged in the supporting documentation.

49. Thus, the Court should distinguish Tillman because the CSSO Act did not have a prohibition equivalent to s 50(2) of the Act.

50. Once any document or report is received under s 61 of the Act (see also s 58), other evidence can be received and acted upon which can affect the relevance and probative value of that material. Thus, evidence which, prima facie, would justify the making of an order can be found to be of insufficient weight to justify the making of an order: State of NSW v Haidar [2020] NSWSC 38 at [31], [37], [57]-[59], [78], [83] and [86] (“Haidar”).

51. The judgment in State of NSW v Sturgeon [2019] NSWSC 559, per Garling J at [7] (“Sturgeon”) may be distinguished.

52. In Sturgeon at [6], [7] and [13], there was no indication that the defendant was purporting to challenge the supporting documentation or produce contradictory material. Further, the observations made by Garling J were not dispositive of the ultimate issues that were before his Honour and his Honour did not have the benefit of submissions as to the effect of s 50(1) or s 50(2).

53. This approach is supported by the judgment of Lonergan J in State of NSW v Hampton [2018] NSWSC 360 at [40].

54. In that light the Court should have regard to the material annexed to the affidavit of Hayley Le and, in particular, the case note concerning Iman Kilani.

The Principles

55. If, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, the Court must make orders appointing two qualified psychiatrists or two registered psychologists or a combination of both to conduct separate psychiatric or psychological examinations (as the case requires) of an eligible offender (as will be discussed below, there is no dispute that the defendant is an eligible offender within the meaning of that expression in s 7 of the Act) and to furnish reports to the Court on the results of those examinations and to direct the eligible offender to attend those examinations (see ss 24(5) and 38(5) of the Act). If the Court is not so satisfied, it must dismiss the application (ss 24(7) and 38(7)).

56. The Court may make an IDO if it appears to the Court first, that the offender’s “current custody or supervision” will expire before the proceedings are determined; and secondly, it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO (s 41). The Court may similarly make an ISO if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO (s 27).

57. It is useful to commence a discussion of the principles applicable to preliminary hearings by revisiting Tillman.

58. That matter concerned an appeal from a determination to refuse an IDO under s 16(1) of the CSSO Act. The primary judge instead made an ISO for a 28 day period. The defendant was, at the time, serving the final week of a lengthy sentence of fulltime imprisonment for a serious sex offence.

59. The Court of Appeal’s attention was directed to s 16 of the CSSO Act which provision was set out in [22] of Tillman as follows:

(1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court:

(a) that the offender’s current custody will expire before the proceedings are determined, and

(b) 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 may make an order for the interim detention of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

60. The provisions of s 16(1) have as their counterparts s 18A of the CHRO Act and s 27 of the Act (see also s 41 of the Act).

61. The Court of Appeal found that the powers conferred by s 16(1) entailed a discretion enabling the Court to refuse to make an order in a proper case, even if the provisions of, inter alia, s 16(1)(b) were satisfied (at [32]).

62. Section 27 of the CSSO Act provided as at the time of the hearing of Tillman as follows:

27 Hearings

This Act does not affect the right of any party to proceedings under this Act:

to appear, either personally or by the party’s legal representative, or

to call witnesses and give evidence, or

to cross-examine witnesses, or

to make submissions to the Court on any matter connected with the proceedings.

63. The counterpart of this provision is s 27 of the CHRO Act and s 54 of the Act.

64. The Court of Appeal observed, with respect to s 27, as follows (at [39]):

Section 27 states that the Act does not affect the right of any party to proceedings under the Act to call witnesses and give evidence, or to cross-examine witnesses. One would have thought such a provision unnecessary as regards the making of final orders. And the powers to make interim orders are capable of exercise from time to time, obviously, in light of the situation then prevailing. Accordingly, for s 27 to have effective work to do, it would appear to be directed at the situation of an offender seeking to resist the making of an interim order where otherwise paras (a) and (b) of ss 8 and 16 are formally satisfied. There is no reason why, for instance, an offender could not seek to establish that the matters alleged in the supporting documentation were incapable of proof. At the very least the provision reinforces the conclusion that “may” imports a judicial discretion. (emphasis added)

65. The defendant submitted that provisions such as s 27(b) of the CHRO Act (such that the legislation does not affect the right to call witnesses and give evidence) and s 50(1) of the Act must mean that a defendant may have a defence case in a preliminary hearing. However, as emphasised above, the Court of Appeal was, in this passage of Tillman, directing attention to a defendant resisting an application where the provisions of, by extrapolation, s 27(b) (or s 41) of the Act are satisfied. Further, the Court gave an illustration representing the limited scope for challenges in such circumstances by providing, as an instance, circumstances where an offender sought to establish that the matters alleged in the supporting documentation were “incapable of proof”. The Court observed that the provisions of s 27 of the CSSO Act reinforced a notion that there remained a judicial discretion under s 16(1) of that Act notwithstanding that the formal provisions of s 16 had been satisfied. It follows, by parity of reasoning, that that conclusion would be applicable to s 18A of the CHRO Act and ss 27 and 41 of the Act.

66. The defendant placed reliance upon Haidar. Some further observations may be made in that respect.

67. Haidar concerned a preliminary hearing under the Act. Davies J accepted a submission of the State, based on Tillman, that it was open for a defendant to produce evidence which was addressed to the exercise of the Court’s discretion to refuse to make an ISO (at [14]).

68. It may be further observed that his Honour, in Haidar, stated:

1. In adopting the principles stated in Golding at [17] and Sturgeon per Garling J at [7], that it was not for the Court to weigh up the documentation, resolve any conflict, inconsistencies or uncertainties that appeared in the documentation to predict the ultimate result or to consider what evidence the defendant might call at the final hearing.

2. Similar to the approach of the Court of Appeal in Tillman at [39], his Honour referred to material in the supporting documentation which was incapable of proof such as the defendant’s observations of the bombing of a building in Lebanon when he was, without doubt, in Australia at the time (at [61]). His Honour found that strong evidence would be needed for the Court to reach a different conclusion from that of the Commonwealth (in the material before the Court) as to whether Hezbollah was an organisation that supported terrorist acts or violent extremism (in considering whether the defendant was a convicted NSW terrorism activity offender (at [58]).

69. No different approach was taken with respect of opinion evidence of an expert as the characteristics of an organisation entitled AMAL (at [77]) or to her reliance upon the inadmissible evidence of another expert, Dr Shanahan (at [83] and [86]).

70. In Golding, RA Hulme J stated (at [17]-[19]):

17 A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. 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).

18 The test in s 10A (“the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that “'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "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".

19 There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO.

71. The defendant contended that Golding had relied on Tillman at [39] and that portions of Tillman had established that provisions such as s 50 of the Act meant that the defendant may have a defence case. As I have discussed, [39] was not expressed in such absolute terms.

72. It was also submitted that Golding relied on Tillman at [98], but that that passage of Tillman was concerned only with the CHRO Act which did not have the equivalent of s 50(2) of the Act. I will refer to the issues raised by s 50(2) but it may be observed at this juncture that the Court of Appeal stated in Tillman that the “threshold question” (being whether the supporting documentation would, if proved, justify the making of “either category of final order”) was to be resolved without considering what evidence might be called by the offender at the final hearing and without taking into account any evidence called by the defendant at the interim hearing, save as to discretionary matters.

73. Later, in Sturgeon, Garling J stated (at [6], [7] and [13]):

6 The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98].

7 Once the Court reaches the requisite state of satisfaction at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an order for an interim detention order (“IDO”) or an interim supervision order (“ISO”): Tillman at [32]. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court’s discretion. However, having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, “… to ensure the safety and protection of the community …”, it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case.

…

13 It follows that there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State’s application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to. Nor is there any place to tender any contradictory material. These are matters reserved for determination at a final hearing.

74. The defendant contended that the reasoning in Sturgeon was not dispositive of the issues in the matter because there is no indication the defendant was prepared to challenge the supporting documentation or to produce contradictory material. The difficulty with that submission is that was precisely the subject matter to which his Honour was directing his attention.

75. The defendant also sought to distinguish this judgment by reference to s 50(2). Again, I will return to that question.

76. It has been held that the Court looks at the allegations and documentation through the lens of the plaintiff’s case and looks then “at their highest when deciding whether the test articulated in s 27(b) of the Act has been made good in all the circumstances of the case” State of NSW v Cheema [2020] NSWSC 876 (at [100]) (“Cheema”) and State of NSW v Elzamtur [2019] NSWSC 186 (at [4]). Both of these authorities concerned applications under the Act.

77. I do not consider that s 50(2) warrants a modification of the above line of authority with respect to the Act.

78. Both the CHRO Act (or its predecessor, the CSSO Act) had the equivalent provision to s 50(1) of the Act (see s 21 of the CHRO Act or s 21 of the CSSO Act). So too, as noted earlier, were there provisions equivalent of s 54 of the Act. As submitted by the plaintiff, it is quite unlikely the legislation intended to significantly alter either the effect of s 50(1) or related provisions (or the equivalent provision of the CHRO Act) or the effect of those amendments by s 50(2) when the provision is introduced by the chapeau “to avoid doubt”.

79. The provision is concerned with rules of evidence which deal the relevance or probative value of an admitted document, report or other information, where the Act has provided that the document, report or other information be admissible under the Act.

80. This is plainly a reference to the operation of parts of the Act which expressly provide for the admission of certain materials despite any Act or law to the contrary (see, for example, s 61). A counterpart provision is s 25(3) of the CHRO Act.

74. That gives rise to the prospect that some material of that kind attracting little weight in and of itself because of its inherent qualities (or lack thereof), as discussed in Haidar and Tillman because the material was simply incapable of sustaining the proposition advanced by the applicant on an evidentiary basis (see the earlier discussion in this judgment).

75. The factual premises for the evaluations required of the Court under ss 38(5),27(b) and 41(b) are to the found in the words “the matters alleged in the supporting documentation would, if proven justify”.

76. The plaintiff is not required to prove the allegations it makes: State of NSW v Thurston [2017] NSWSC 1760 at [19].

77. The task of the Court at a preliminary hearing has been described, as noted above, as akin to a prima facie case test: State of NSW v Love (Preliminary) [2019] NSWSC 1660 at [31] (per Walton J); State of NSW v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of NSW v Reay [2014] NSWSC 1362 at [29] (per Button J).

78. A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).

79. In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]):

This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

87. The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of NSW v Hampton [2018] NSWSC 360, Lonergan J said at [40]:

Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.

88. Sections 27(b) and 41(b) of the Act require attention to be given to “the matters alleged in the supporting documentation”. A “matter alleged” should have some proper foundation and could not include matters of rumour, possibilities unfounded in fact or wholly unsupported speculation: State of NSW v Alam [2020] NSWSC 295 at [159]; Cheema per Johnson J at [103]; the “matters alleged” refer to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them: Golding at [18].

89. In State of NSW v Lynn [2013] NSWSC 1346, Beech-Jones J considered a predecessor provisions at [17]:

Subsection 10B(b) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead it requires a narrower inquiry as to whether what is alleged in that support documentation would, if proved, justify the making of the high risk violent offender extended supervision order. The test for whether an order will ultimately be made is that specified in s 5E(2), namely, satisfaction "to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”.

See also Naaman per Campbell J at [37].

90. Once the requisite state of satisfaction is reached at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an interim order. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court’s discretion: Tillman at [32] and [98]. (See also Haidar per Davies J at [14]).

91. It should also be observed that risk avoidance is the focus of the enquiry at the preliminary stage: State of NSW v Barez (Preliminary) [2019] NSWSC 1589 at [35] per Fullerton J; Attorney General for NSW v Winter [2007] NSWSC 611 at [7]; Sturgeon at [47]. The Court will be best placed to assess the defendant’s risk upon receipt of the expert opinions ordered pursuant to ss 24(5) or 38(5) of the Act.

STATUTORY SCHEME

92. The primary object of the 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”: see s 3. Another object of the Act is “to encourage such offenders to undertake rehabilitation”. It follows that the orders that may be made under the Act are protective, not punitive: see, by analogy, Tillman at [5]; Kamm v State of NSW (No 4) (2017) 345 ALR 669; [2017] NSWCA 189 (“Kamm”) at [113], [147]; State of NSW v Ibrahim (Final) [2021] NSWSC 793; Cheema at [81].

93. “Serious terrorism offence” in defined in s 4 as an offence against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 or more years of imprisonment. These offences include:

1. engaging in a terrorist act (s 101.1);

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

3. possessing things connected with terrorist acts (s 101.4);

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

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

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

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

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

9. training involving a terrorist organisation (s 102.5);

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

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

94. I agree with the submission advanced for the plaintiff that the offences cover a very broad range of conduct and do not require the commission of an act of violence. Inclusion of such a wide range of conduct is consistent with the legislative intention underlying Act, being the protection of the community.

95. Section 4 of the Act provides that “terrorist act” has the same meaning as given to the term in Pt 5.3 of the Criminal Code, namely (s 100.1(1)).

96. In Minister for Home Affairs v Pender [2021] NSWSC 1644 this Court gave the following summary of the definition of terrorism act at [35]:

Counsel for the plaintiff provided a summary of the meaning of a “terrorist” act is defined in s 100.1 which, in my view, is a useful digest and is in the following terms:

40. A ‘terrorist act’ is defined in s 100.1. In summary, it is:

(a) an action or threat of action that causes serious harm that is physical harm to a person, or causes serious damage to property, or causes a person’s death, or endangers another person’s life, or creates a serious risk to the health or safety of the public or a section of the public, or seriously interferes with, seriously disrupts, or destroys, an electronic system (‘terrorist act’ para (a), s 100.1(2));

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

i.   advancing a political, religious or ideological cause (‘terrorist act’ para (b)); and

ii.   coercing, or influencing by intimidation, the government or intimidating the public or a section of the public (’terrorist act’ para (c)); and

(c) the action does not fall within s 100.1(3): ie it is advocacy, protest, dissent or industrial action not intended to cause serious harm that is physical harm to a person, or to cause a person’s death, or to endanger the life of another person, or to create a serious risk to the health or safety of the public or a section of the public (‘terrorist act’ para (a), s 100.1(3)).

97. In considering the term “terrorist act”, the Court of Appeal in State of NSW vNaaman (No 2) [2018] NSWCA 328 at [33]-[34] (“Naaman (No 2)”) construed the words “action” in paragraph (a) of s 101.1(1) as including “actual or threatened” action. The Court concluded (at [35]):

…Accordingly, for the purpose of assessing whether the threat of action is a “terrorist act”, one asks whether the threatened action falls within subs (2) and does not fall within subs (3). Further, if action or threat of action is to be a terrorist act, it must also satisfy both of pars (b) and (c), and so the action must be done or the threat made with the intentions identified in those paragraphs.

98. The Court (at [34]) considered this to be consistent with the approach adopted in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44] per Gummow and Crennan JJ:

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

99. It is reasonably clear that, having regard to those authorities, that the relevant intentions must accompany a threat of action (per s 101.1(1)(b) and (c)) but the reference to particular consequences in s 100.1(2) is not a reference to an intention on the part of the person making the threat of action, but the characteristic of the action threatened.

100. By extrapolation from the discussion in Naaman (No 2) at [29], the statutory preconditions for the making of a CDO or an ESO are as follows:

1. the defendant is an “eligible offender” within the meaning of the Act: s 7;

2. the defendant is a detained offender or supervised offender (or was at the time the original application was filed): ss 20(a), 34(1)(a);

3. the defendant is “a convicted NSW terrorism activity offender”, within the meaning of s 10 of the Act: ss 20(c), 34(1)(c);

4. the application is made in accordance with Part 2 or Part 3 of the Act respectively: ss 20(b), 34(1)(b);

5. in the case of a CDO application, 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 custody: s 34(1)(d); and

6. in the case of an ISO application, 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 under supervision: s 20(1)(d).

101. In view of material before the Court, senior counsel for the defendant properly conceded the following as to those preconditions:

1. For the purposes of ss 20 and 34(1), the defendant is an “eligible offender” within the meaning of that expression in s 7 of the Act.

2. For the purposes of ss 20(a)(i) and 23(1)(a), the defendant was in custody whilst serving a sentence of imprisonment for an offence which meets the definition of a NSW indictable offence in s 4(1) of the Act.

3. For the purposes of ss 34(1)(a) and 37(1)(a) the defendant is a “detained offender” within the meaning of that expression in s 33 of the Act.

4. For the purposes of ss 23(2) and 37(2), the application by the plaintiff was made after the beginning of the defendant’s last 12 months in prison.

5. On the basis of the supporting documentation, and for the purposes of ss 20(c)(iii) and 34 (c)(iii), the defendant is “a convicted NSW terrorism activity offender” pursuant to s 10 of the Act. Senior Counsel for the defendant accepted that the defendant had previously made a statement advocating support for a “terrorism act or violent extremism” as defined in s 10(1A)(a)(ii) or (iii). I note in that respect that s 10(1A) specifies an inclusive, non-exhaustive list of matters relevant to s 10(1)(c).

102. In Ibrahim, the Court provided the following summary of the authorities regarding the interpretation of the word “advocating” as used in s 10(1)(c) (at [70]-[74]):

70 The THRO Act does not exhaustingly define “advocating” as used in s 10(1)(c): State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 (“Dunn”) at [29] (per N Adams J).

71 Nonetheless, some additional observations may be made. Both s 10(1A)(a)(ii) and (iii) require that a comparison be made between the acts of the offender and the acts of a relevant person, group, organisation or ideology.

72 The expression “person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism” is found in both provisions. In Cheema, the Court rejected an argument that s 10(1A)(a)(ii) should be limited to using or displaying images or symbols which could reasonably be construed as advocating support for terrorist acts or violent extremism; or that the subjective intention of the person using or displaying the images or symbols should be imported into the subsection: see Cheema at [62]-[65], [82]-[85].

73 There is no requirement or specification in s 10(1A) as to when the relevant act of “advocacy” occurred. In Naaman No 2, there was evidence that the offender had placed a poster of Osama Bin Laden on his cell wall while in custody 17 years previously. Although it was unnecessary to determine the point, the Court of Appeal stated that, on one view, the THRO Act mandated that the offender was a “convicted NSW terrorism activity offender” by reason of s 10(1A)(a)(ii): at [26]. Further, in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [58], Bathurst CJ accepted that “the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism offender as a result of historical matters”.

74 Section 10(2) makes clear that s 10(1)(c) applies “regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned”. In other words, s 10(1)(c) “will apply irrespective of whether a person has been convicted of an offence connected with terrorism”: Naaman No 2 at [22].

103. Further, in Ibrahim the meaning of the term “violent extremism” was discussed as follows (at [81]-[82]):

81 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: State of New South Wales v Elmir [2019] NSWSC 1867 at [34]. In my view, 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, violent extremism does not necessarily require any intention to advance political, religious or ideological causes or influence government or the public by intimidation.

82 The juxtaposition of the concept “violent extremism” with the concept of “terrorist act” indicates that the concept of violent extremism concerned some acts which were separate and distinct from those which fall within the definition of a terrorist act, although plainly the two concepts are not mutually exclusive.

104. In Osman v State Parole Authority & the Attorney General of NSW [2020] NSWSC 1392, Wilson J considered the meaning of the term “violent extremism” where it is used in s 159C of the Crimes (Administration of Sentences) Act. Her Honour held (at [73]):

There does not seem to be any real basis to constrain the meaning of the phrase “violent extremism” to applying only to acts of religious extremism. A violent act in support of, or to advance, an extreme viewpoint or system of belief, whether religious, or political, or of some other nature, is likely to be caught by the phrase “violent extremism”.

105. Section 11 of the Act provides that, in determining whether an eligible offender is an offender within the meaning of ss 9 or 10, the Court may take into account the following matters:

1. the views of the sentencing court at the time the defendant was sentenced for the defendant’s offence;

2. the views of the sentencing court at the time a person other than the defendant 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 defendant’s offence;

3. evidence adduced in the proceedings for the defendant’s offence or in proceedings against another person for an offence referred to in paragraph (b);

4. any relevant terrorism intelligence;

5. the defendant’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;

6. the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the defendant’s history of behaviour (including any patterns in, or the progression of, that behaviour to date);

7. any information concerning the defendant that the Court considers relevant (including developmental or social factors and behaviour while in custody);

8. any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the defendant and the defendant’s associates and affiliations;

9. information indicating that current or former associates of the defendant have been or are involved in terrorism activities, and

10. any other information that the Court considers relevant.

Unacceptable Risk of Committing a Serious Terrorism Offence – Sections 34(1)(d) and 20(1)(d) - Principles

106. The Court is only able to make a CDO if satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order.

107. Putting aside s 34(2), the task conferred on the Court by s 34(1)(d) of the Act is left largely unaffected by other provisions of the Act, save that s 35 makes clear that the 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”.

108. The requirement of being satisfied to a “high degree of probability” imports a standard of proof that is higher than the civil standard but lower than the criminal standard: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21]; Naaman (No 2) . Although the standard is a high one, it is important to recognise that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit an offence of the relevant kind, but, rather, that he or she poses an “unacceptable risk” of doing so: see, for example, The State of NSW v Sharpe [2017] NSWSC 469 at [51]; State of NSW v Wilson (Preliminary) [2017] NSWSC 1367 at [21] (both decisions concern “unacceptable risk” in the context of the Act).

“Mr Mustapha was initially closed to the idea of participating in intervention programs or engaging with a psychologist. He showed little insight into his criminogenic factors or need for intervention. Mr Mustapha later resiled slightly and was open to engaging in community based psychologist as it might assist him manage some issues. He remained closed to the idea of engaging in interventions around alcohol and drug use as he believed he would never return to that lifestyle.”

221. Nonetheless, the plaintiff pointed out this Risk Management Report shows that since March 2020 the defendant’s behaviour in custody had stabilised and improved, that the defendant had proposed accommodation with his Aunt and Uncle which, as previously mentioned, was suitable and the Aunt and Uncle were supportive of him. The defendant submitted that a detailed supervision plan could be put in place to supervise the defendant.

222. Similarly, the defendant submitted that a report prepared by NSW Police describes mechanisms by which the defendant may be managed in the community.

223. Ultimately, the plaintiff was correct to submit that neither the NSW Police nor the Corrective Services report positively suggests the defendant cannot reasonably and practicably be managed in the community, provided the proposed conditions are imposed as part of an ESO.

224. I also accept consideration raised by the plaintiff that the historical evidence concerning the defendant’s willingness to engage with such interventions in custody or in the community together with his anti-authoritarian attitudes warrants caution in the assessment of how reasonably and practicably he may ultimately be managed in the community by supervising authorities.

Any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community

225. There is no report falling within this consideration. The defendant submitted that the absence of such report is suggestive that no such authority is of the view that the defendant cannot be managed in the community. I consider that no such inference may be drawn from the material presently before the Court.

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

226. The defendant’s current sentence of imprisonment is his first time in custody for any lengthy period. Community Corrections report that, prior to engagement with him for the purposes of parole, they had had no prior involvement with him.

227. The Corrective Services material suggests that, on the basis of assessments focussed on the defendant’s ordinary criminogenic needs (conducted without access to information and background about the defendant’s apparent interest in Islamic State and violent extremism), he has, at least recently, been assessed as eligible to undertake the EQUIPS suite of programs. At no stage has he commenced any such program. He has either declined to participate at all or indicated a willingness to participate and then not followed through.

228. The Corrective Services material also suggests that, while the defendant has at times acknowledged a role of drugs in his offending, he has failed to follow through on this by participating in any treatment. He has declined alcohol and drug intervention when offered, inconsistently reported the extent of his drug use while in custody and expressed the view he does not have a problem with drugs.

229. As noted above, the defendant has at times self-referred for psychological services. However, this appears to have been in the context of heightened periods of anxiety and paranoia with requests for medication, with no ongoing engagement.

230. In the course of his parole proceedings in 2020, the defendant had some engagement with a psychologist from the CVE team within Corrective Services NSW. The defendant’s engagement with this process was poor and discontinued because he ceased attending the initial appointments for the purpose of an initial comprehensive assessment. He reported disengaging because he felt offended by the process, perceiving the staff as hypocritical, racist, and telling him to change his religion.

231. The defendant accepted that his attitude to authority may make him unwilling to participate in enforced rehabilitation but the evidence suggests that he is willing to take it on himself.

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

232. Ms Abreu suggests that, if the defendant remained in custody, his risk level may be reasonably moderated or mitigated if he engaged with intensive criminogenic needs programs. She specifically recommended the Proactive Integrated Support Model (“PRISM”) program in relation to his religious and political views, together with the Violent Offenders Therapeutic Program (“VOTP”) in relation to his risk and acceptance of violence. His participation in each program would, however, be voluntary.

233. If the defendant was in the community under supervision, Ms Abreu noted in particular, the options of the PRISM program with psychologists and services and program officers, and the EQUIPS suite of programs. She describes “this treatment pathway would be of sufficient intensity to meet his assessed level of treatment need for both violence and general offending”.

234. If the defendant was in the community, not under supervision under an order, then subject to any short remaining period of supervision under parole (if he is granted parole), from 7 December 2021 there will be no supervision, support or monitoring from Corrective Services NSW and unit agencies operating in conjunction with relevant agencies in relation to the Act (“THRO agencies”), and no active constraints or checks on the defendant’s conduct and risk factors.

235. The RAR view of what is available is more guarded. Ms Abreu says that placement on a CDO with sufficient time may facilitate the defendant’s access to extensive custody group programs (should he consent).

236. As Ms Abreu considered it important to note, the defendant has “historically been resistant and unreceptive to attempts to have him meaningfully engage with support services or behaviour change programs. It is likely that meaningful change in this area will likely take some time and require assertive case management”.

237. The defendant has not previously undergone any period of community-based supervision and case management, and he does have a history of poor compliance with Court orders.

238. “Assertive case management” appears to be a pre-requisite to any potential success of supervision in the community according to Ms Abreu, given the defendant’s poor history of engagement with treatments offered to him in custody and his general apparent lack of interest in treatment.

239. The defendant’s criminal history discloses a pattern particularly of violent offending, but also of drug use. As Ms Abreu notes:

Mr Mustapha has a history of general criminality and violence. His offending history appears to have been committed within the context of substance use, interpersonal family conflict, antisocial peers, emotional dysregulation, impulsivity and hostile criminal attitudes…

Collateral information indicates Mr Mustapha has previously reported that leading up to the offences against the police and Corrective Services staff, he was struggling with family problems and withdrawing from polysubstance use…

He also has a documented history of perpetrating violence against others. From the information available, it appears that his violence is predominantly reactive in nature, an outcome of clear emotional dysregulation, antisociality and impulsivity. It appears that the motivation behind his threats have at times been to demand compliance, instil fear, release of frustration and to gain a sense of control over the situation.

240. To date, other than for a Health Survival Tips course, the defendant has not consented to participate in, or completed, any program. The defendant said he views such programs as attempts to try to change his religion. The CVE programs available both in custody and in the community are voluntary and require the participants’ consent.

241. The defendant submitted that the availability of CVE programs is a neutral factor in selecting between an IDO or CDO if such orders were to be made.

242. However, the defendant’s attitude to rehabilitation program is a factor relevant to the question of risk. The defendant’s reliance upon the existence of the New South Wales Engagement and Support Program which is a voluntary based management program suffers from the absence of evidence that the defendant does intend to engage in the program having regard to its voluntary nature.

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.

243. The defendant’s criminal history discloses a pattern of violent offending, but also of drug use.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

244. The Magistrate that sentenced the defendant on 14 December 2018 found special circumstances justifying an extended period of parole. His Honour expressed the view that the defendant’s mental health issues, his prospects of drug rehabilitation on parole and the fact that this was his first time in custody required a significant departure from the statutory ratio.

245. When sentenced for the grievous bodily harm offence on 10 October 2019, the learned Magistrate expressed some concern that the sentence he was imposing “must consume” part of that non-parole period’.

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

246. The defendant submitted the supporting documentation shows that the defendant is a committed Muslim. It shows that he believes in the primacy of the word of Allah. Neither of these matters amount to support for engaging or participating in terrorism activities. I agree.

247. However, in addition to the opinions of Ms Abreu in the RAR concerning the defendant’s beliefs or commitments, information relevant to this consideration is also contained in an additional psychological assessment report prepared by Dr Tamara Sweller, senior psychologist with Corrective Services NSW CVE Programs, dated 9 November 2020. Ms Abreu did not have access to this report at the time of preparing her initial report.

248. Dr Sweller did not administer the VERA-2R tool in a manner such as to produce an assessment of the defendant’s risk profile on the tool. Dr Sweller nevertheless considered the defendant’s “risk promoting indicators”, “risk describing indicators”, and “risk mitigating factors” under the VERA-2R tool in a fashion consistent with Ms Abreu’s conclusions about his risk indicators and mitigating factors.

249. Dr Sweller did however have the benefit of a series of interviews with the defendant, totalling some six and a half hours between June and October 2020 (before he withdrew his consent to participation).

250. A significant aspect of Dr Sweller’s report is the defendant’s self-reports in interview about his religious ideology. For example, he reported:

1. He commenced engaging in research into Islam approximately 10 years ago, through internet searches and “people of knowledge” in order to find “the truth”.

2. Prior to entering into custody, he started to attend religious lectures at a mosque in Auburn, which resonated with him and he gained a sense of being understood. He subsequently attended the Masjid al-Noor, however he did not like it because they spoke only about what the scholars say and he only cared what “God and the messengers” said.

3. He followed the Prophet and the “righteous predecessors” as closely as possible, which Dr Sweller explains is reflective of the Salafi school of thought, though the defendant stated he does not follow a particular school of thought.

4. Prior to his incarceration he was “ignorant” in relation to Islam, and while in custody he has spent much of his time reading religious books in order to further his knowledge. He prays five times a day and has done so for the past 12 years, except during the period between 2016-2018 when he got “off track” with drug use.

5. He engages in Dawah interactions with inmates who have different religious beliefs, such that he preaches to them if they say or do anything that he believes is inconsistent with Islam. He identified that he has successfully converted two or three inmates during his incarceration.

251. In addition to the psychologist’s reports, Dr Shanahan’s analysis of both statements made or authored by the defendant on various dates in 2018, 2019 and 2020, and of voluminous material located on the defendant’s mobile phones, Toshiba hard drive and social media accounts during 2017-2018 provides additional support for a finding that the defendant has in relatively recent times (prior to and during his incarceration) held beliefs and commitments that support engaging in participating in terrorism activities.

252. Dr Shanahan was asked to opine on a significant volume of statements and material individually. In respect of a significant portion of those individual statements and material, he opined as to a clear link between the defendant’s statements and possessed material on the one hand, and the ideological position espoused by violent extremist groups such as Islamic State on the other. This may be illustrated by the following:

1. In respect of videos possessed by the defendant on the Toshiba hard drive in 2018 prior to his arrest in August: many of the videos are identified as associated with Islamic State in what may be described as promotion and propaganda, including videos in which terrorist attacks in the West are depicted while calls for people to conduct attacks in the West are made, including reference to Australia.

2. In respect of videos possessed and possibly posted by the defendant on his Facebook and Instagram accounts in 2018 shortly prior to his arrest in August: these include videos with content which promote conservative interpretations or forms of Islam, depict the use or encouragement of violence accompanied by nasheed songs and depict the “finger of tawheed” sign and words recognised as signs of loyalty to Islamic State.

3. In respect of the letter authored by the defendant in July 2019: Dr Shanahan concluded that the letter is consistent with the ideological view that there is a war on Islam and its followers, which is a fundamental argument espoused by jihadist groups such as al’Qa’ida and Islamic State.

4. In respect of the defendant’s tattoos of the word “jehad” and an AF-47 rifle with folded stock, Dr Shanahan opined that the weapon is a “mainstay of jihadist groups around the word” and that as Arabic transliteration means that “e” and “i” can sometimes be used interchangeably- “jehad” may in this context be understood to mean “jihad” and thus a religious obligation to undertaken armed action against designated enemies of Islam.

253. I accept the submission by the plaintiff that the material, when taken as a whole, strongly supports the inference that, at least at the time of the making of the relevant statements between 2018 and 2020, when taken against the context of the of the possession of the relevant material from late 2017 and 2018, the defendant held ideological beliefs, consistent with the ideologies identified by Dr Shanahan in his assessment of his statements and material stated that support engaging or participation in terrorism activities.

254. The defendant submitted that on the opinions expressed by Iman Kilani that a conclusion may not be reached as to the present day holding of those beliefs or ideologies or motivations. The relevant principles would suggest that those opinions are not relevant in that form to the assessment of risk, but in any event for the reasons I have already given if the opinions are intended to be expressed as expert opinions as to the holding of extremist views or ideologies or a motivation or intention to engage in violent extremism, politically motivated violence or terrorism activity, the case note reflecting that opinion can have little weight. Further, the opinions of the Iman Kilani; appear as no more than a “case note” in which very little is provided to support the opinions expressed.

255. Noting the limitation to a weighing exercise which I have earlier discussed, the opinions expressed in the RAR and Dr Shanahan, having regard to the nature and context of the opinions expressed and the support of other relevant material which I have discussed, are of real significance in this preliminary hearing.

Any other information that is available as to the likelihood that the defendant will commit a serious terrorism offence

256. The Court has earlier discussed the defendant’s travel to Gaziantep on the Turkish-Syria border in 2015.

257. Gaziantep is explained by Dr Shanahan as having been “one of the hubs in southern Turkey from which jihadist foreign fighters were able to be smuggled into Syria to join groups including Islamic State”, though the timeframe for this status is not explicit, it appears to be before July 2016 based on the source referenced in the report.

258. I agree with the submission for the plaintiff, that the defendant’s explanation for this trip is somewhat unconvincing.

259. The Court has placed little weight on the association between the defendant and Mr Elmir in 2015. However, the defendant’s comment during the course of an interview with Community Corrections on 22 May 2020, to the effect that he did not think he knows anyone in the community who had been radicalised, but had “probably run into them in the community”, is of great significance.

Unacceptable Risk

260. Having regard to the aforementioned discussion, I consider that the matters alleged by the plaintiff, if proven, are capable of establishing that, for the purposes of s 34(1)(d), the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under an order. Further, not for the purposes of s 41(b), I find that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO.

261. As earlier mentioned, Ms Abreu applied the VERA-2R and TRAP-18 in undertaking assessments of the defendant.

262. The defendant was assessed in the TRAP-18 report, as warranting ongoing monitoring and active case management in relation to the warning behaviours and distal characteristics. It was correctly submitted by the plaintiff that this a tool which is directed at the risks which the defendant stated had not been addressed.

263. The following factors require emphasis in these respects:

1. The defendant was assessed in the RAR as currently posing a moderate-high risk of engaging in violent extremism, politically motivated violence or terrorism activity. The Court has earlier discussed the significance of this report.

2. The conclusion is not diminished by the assessment deriving from a relevant psychological assessment tool, VERA-2E applied by an expert clinician. Of particular note, in that respect, is the Terrorism (High Risk Offenders) Regulation 2018 (NSW) (“the Regulation”). Clause 9 of the Regulation provides the bodies of knowledge for the purposes of the definition of a relevant expert in s 4 of the Act. Clause 9(1)(c) deals specifically in that context with training in the use of VERA-2R and is in the following terms:

9   Relevant experts

(1) Each of the following kinds of bodies of knowledge are prescribed for the purposes of the definition of relevant expert in section 4 (1) of the Act—

…

(c)  knowledge obtained as a result of being trained in the use of the Violent Extremism Risk Assessment Version 2–Revised (VERA–2R) risk assessment tool or any other tool or process developed specifically to assess the risk of an offender committing a terrorism offence on release into the community.

3. In Fayad at [225], the author of the risk report changed her initial assessment to the “high-risk category” after considering new material. The author identified that the original assessment “underestimated” the defendant’s risk of engaging in violent extremist behaviours. The plaintiff placed emphasis on the words “high-risk category”, as it was submitted that they are almost identical to the words the defendant sought to criticise in this case.

4. The RAR identifies an absence of protective factors that might mitigate the defendant’s risk of engagement and/or further radicalisation. The vulnerabilities the defendant displays represent a potentially increased risk and/or imminence of an act of extremist violence. This includes the defendant’s continued alignment with beliefs and attitudes that justify violence on the basis of religious matters, the verbalising of these beliefs, continued perception of being mistreated by others due to his religion and/or race, seeking out extremist material and connections with individuals known to have proselytise extremist views, engagement in illicit substances, a turbulent family dynamic, increase in his threats of violence and his reactivity to grievances and unreceptiveness to engage with support services.

5. The defendant not only has a history of making threats of violence of a kind that supports terrorist acts or violent extremism but also discloses a pattern of violent offending and drug use.

6. It may be noted in that respect that, as earlier observed:

1. Serious terrorism offence involves a broad spectrum of conduct.

2. Terrorist act includes threat of action. It was submitted by the plaintiff that the threat of action is sufficient to constitute a terrorism offence under Pt 5.3. Reliance was placed on the authorities of Naaman (No 2) at [39], Cheema at [189] and Alam at [129] in support of this proposition and the range of conduct that is caught under Pt 5.3. I accept that submission on the authorities relied upon.

7. The defendant has a demonstrated propensity to commit or attempt to commit actual violence and intimidation, including against public authority figures such as police and corrective services officers, in the context of perceived grievances or injustices towards him on the basis of his religion.

8. In the period immediately prior his entry into custody the defendant both possessed and shared publicly a substantial volume of extremist religious material, including violent extremist and terrorism related material.

9. The defendant deliberately authored a letter expressing beliefs and commitments consistent with that material; years later made threats of cutting officers’ throats in response to a perceived mishandling of his religious books; and has during his time in custody (self-reportedly) further developed his commitment to the Islamic faith, suggestive that he has maintained extremist religious beliefs over a number of years.

10. It follows that the defendant’s acts or conduct give risk to a real possibility that his belief extends to beliefs that support engagement in conduct that would amount to a serious terrorism offence.

11. I agree with the submission for the plaintiff, and as earlier discussed, that the defendant has displayed, and continues to display, limited to no insight into the need for interventions targeted to his criminogenic needs. As earlier mentioned, the defendant has declined alcohol and drug intervention when offered, and his engagement with the CVE team within Corrective Services NSW was poor and discontinued.

12. The defendant has taken no steps to engage in relevant interventions and has expressed views that he does not have any underlying criminogenic issues, and/or does not require any external assistance with any such issues.

13. The defendant’s willingness and ability to comply with the requisite intensive mandatory supervision and case management in the community is untested, and he has breached bail conditions in the past.

14. At this stage, and until an improvement in the prospects of the defendant’s compliance with mandatory supervision and intensive case management is improved through preliminary engagement with relevant interventions in custody, an ESO will, in my view, be inadequate to contain his risk.

Discretion to Make an IDO or ISO

264. The defendant submitted that, if satisfied at the preliminary stage of an unacceptable risk, it is submitted that the Court would not make an IDO as it should not be satisfied that his incarceration is necessary, particularly in circumstances where no expert says that it is. The experts say that intervention can be provided in the community. On the evidence of Ms Prince, incarceration is not necessary for treatment as treatment options are available in the community.

265. It was submitted by the defendant that the Court would exercise discretion to make an ISO rather than an IDO, for the following reasons:

1. Discretion is informed by the common law right to liberty: State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128 at [25].

2. The Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence at the final hearing based on the evidence.

3. In relation to unacceptable risk of committing a serious terrorism offence it was submitted that the Court would be satisfied that the agreed conditions would prevent the commission of a serious terrorism offence and that a breach of the conditions would be detected by those supervising him.

4. There is nothing about the matters alleged in the supporting documentation which suggest that upon release, the defendant poses an imminent risk of committing a serious terrorism offence if not kept in detention.

5. While the safety of the community is a paramount consideration (Tillman at [46]), there is no general presumption in favour of maintaining the custodial sentence when interim relief is available. In support of this submissions reference was made to Ms Abreu's RAR at page B24 par 120.

6. Any act of violence by the defendant is not likely to be in pursuit of any extremist or violent ideology, but rather, sourced in basic psychological features which don't involve any such ideology.

7. An advantage of an ISO is that it is possible that at the final hearing, the Court will not be satisfied that it should make an CDO, but it will be inclined to make an ESO, and if the defendant has satisfactorily completed a period of supervised release in the community under an ISO, that will provide some assurance to the Court that it can exercise its discretion to make an ESO rather than a CDO.

266. However, in my view, strong discretionary factors, in fact, point to the exercise of the Court’s discretion to make an IDO.

267. The starting point is the Court’s determination that the matters alleged in the supporting document would, if proven, justify the making of a CDO.

268. When that consideration is combined with the consideration of community safety required by s 39(2) of the Act that factor is amplified.

269. The proper exercise of a decision to ensure community safety in accordance with the objects of the Act in this case, pending final hearing and the availability of the expert reports is, in my view, the imposition of an IDO.

270. In addition to the factors I have taken into account in reaching a conclusion as to unacceptable risk, the following are significant in this respect:

1. The defendant has untreated criminal needs including a tendency of violence and aggression that are accompanied with extremist threats or references to extremist ideology which are triggered by substance abuse,

2. The defendant has demonstrated a propensity to commit or threaten to commit actual violence towards law enforcement figures and public authority figures, expressing grievances as to way he has been handled which he regards as an attack on his religion.

3. The defendant has not completed any programmes that would address his risk or criminogenic needs.

4. The defendant was assessed as having a medium to high risk of engaging in in terrorism activity and a high risk of re-offending.

5. The defendant has been refused parole on a number of occasions by the State Parole Authority Board, as the Board was not satisfied that the defendant would not engage, incite or assist others in engaging in terrorist acts or violent extremism. The plaintiff submitted this was of some relevance, however, conceded that it is not the same test that the Court has to apply.

6. An ISO, with the accompanying proposed conditions is, in my view, insufficient, on the material presently before the Court, to deal with the risk as found by the Court.

271. In the circumstances, it is appropriate to make an IDO and make orders for the appointment of experts, namely, a qualified psychiatrist and a registered psychologist.

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Decision last updated: 09 February 2022