State of New South Wales v Mustapha (Preliminary)

[2025] NSWSC 926

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Mustapha (Preliminary) [2025] NSWSC 926

Hearing dates:

7 August 2025

Date of orders:

14 August 2025

Decision date:

14 August 2025

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW):

(a)   a qualified psychiatrist and a registered psychologist are to be appointed to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and furnish reports to the Supreme Court on the results of those examinations within 3 weeks of the date fixed for the examination; and

(b)   the defendant is directed to attend those examinations.

(2) Under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is subject to an Interim Supervision Order (ISO) commencing from the expiration of the defendant’s current Extended Supervision Order on 15 August 2025 for a period of 28 days.

(3) Under s 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is to comply with the conditions set out in the Schedule to these orders.

(4)   Access to the Court’s file in this proceeding may be permitted to a non-party only with the leave of a judge of the Court and after prior notice to the parties so as to allow them an opportunity to be heard prior to access being granted.

Catchwords:

HIGH RISK TERRORISM OFFENDER – preliminary hearing – interim supervision order (ISO) under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) – examination order under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – consideration of “matters alleged in the supporting documentation” – power to order ISO engaged – exercise of discretion whether to make ISO – ISO made – examination order made – conditions of ISO

Legislation Cited:

Crimes Act 1900 (NSW), ss 58, 59, 60, 60A, 114 195, 315A

Criminal Code (Cth)

Crimes (High Risk Offenders) Act 2006 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4, 19-32

Cases Cited:

Attorney General for the State of New South Wales v Winters [2007] NSWSC 611

Attorney-General (NSW) v Tillman [2007] NSWCA 119

State of New South Wales v BP (Preliminary) [2019] NSWSC 699

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

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

State of New South Wales v Mustapha [2022] NSWSC 87; 295 A Crim R 296

State of New South Wales v Mustapha (Final) [2022] NSWSC 116

State of New South Wales v Naaman (No 2) [2018] NSWSC 1329

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

State of New South Wales v Richardson (Preliminary) (No 2) [2023] NSWSC 794

State of New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191

State of New South Wales v Sturgeon [2019] NSWSC 559

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:
G Wright SC / A Zheng (Plaintiff)
E Kerkyasharian / R El-Choufani

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

File Number(s):

2025/00190864

JUDGMENT

1. By a summons filed on 16 May 2025, the plaintiff, the State of New South Wales, seeks final relief against the defendant, Mejid Mustapha, by way of an extended supervision order (ESO) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act) for a period of three years from the date of the order together with an order that the defendant comply with the conditions set out in the schedule to the summons for the duration of the order.

2. In addition, in the summons the State seeks preliminary relief of an interim supervision order (ISO), an order for compliance with conditions for the duration of the ISO, an order for the examination of the defendant by psychiatrists or psychologists and an order restricting access to the court file.

3. On 7 August 2025, the matter came before me for hearing in relation to the preliminary relief sought.

4. On that occasion, there was no dispute that the order restricting access to the court file should be made. Given the sensitivity of the material on the file and the fact that the effect of such an order would only be to ensure that the parties were given an opportunity to consider and make submissions in relation to whether access should be granted to a non-party, it is appropriate to make such an order.

5. Accordingly, the hearing on 7 August 2025 concerned whether an ISO should made and, if so, the conditions that should be imposed as part of that order and whether an order for the examination of the defendant should be made.

Procedural background

6. The defendant is a 38 year old man with a history of both general and violent offending. His head sentence of 3 years and 4 months for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 (the Index Offending), was due to expire on 7 December 2021.

7. By a summons filed on 7 September 2021, the State initially sought a continuing detention order (CDO) and other relief against the defendant under the THRO Act. After a preliminary hearing, Walton J made an interim detention order (IDO) and orders for the examination of the defendant under s 24(5) of the THRO Act: State of New South Wales v Mustapha [2022] NSWSC 87; 295 A Crim R 296 (the 2021 judgment). The IDO was extended a number of times. When the matter came on for hearing before N Adams J as to the final relief sought, the State amended its summons to seek an ESO rather than an CDO in light of the reports obtained as a result of the examination orders.

8. On 14 February 2022, N Adams J made an ESO for three years and ordered that the defendant comply with certain conditions for the duration of the ESO: State of New South Wales v Mustapha (Final) [2022] NSWSC 116 (the 2022 judgment).

9. As a result of further time spent in custody because of sentences for other offending, the ESO imposed by N Adams J was suspended by virtue of s 26(6) of the THRO Act. The consequence of the suspension of the ESO is that it is now due to expire on 15 August 2025.

10. By the present proceedings commenced on 16 May 2025, the State seeks a further ESO against the defendant and, in order to ensure the protection of the community and allow a proper consideration of that application, interim relief by way of an ISO and examination orders.

11. In order to consider the claims for interim relief it is necessary to review the relevant statutory provisions and the principles applicable in respect of those provisions.

Relevant statutory provisions

Objects of the THRO Act

12. Section 3 of the THRO Act sets out the objects of the Act as follows:

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

(2) Another object of this Act is to encourage these offenders to undertake rehabilitation.”

13. It follows that the THRO Act is directed to protecting the community from serious terrorism offences rather than other types of offending, no matter how serious.

Serious terrorism offences

14. The expression “serious terrorism offence” is defined in s 4 of the THRO Act as an offence against Pt 5.3 of the Commonwealth Criminal Code (the Code) for which a maximum penalty of seven or more years of imprisonment applies. Part 5.3 includes various offences with a maximum penalty of 7 years or more including, by way of example:

1. engaging in a terrorist act, for which the maximum penalty is imprisonment for life, under s 101(1);

2. possessing things connected with terrorist acts which, depending on whether the person knew or was reckless as to the connection, carry maximum penalties of 15 and 10 years respectively, under s101.4(1) and (2);

3. intentionally being a member of a terrorist organisation, knowing it to be such an organisation, which carries a maximum penalty of 10 years’ imprisonment, under s 102.3(1); and

4. intentionally providing to a terrorist organisation support or resources that would help it engage in preparing, planning, assisting in or fostering the doing of a terrorist act, for which the maximum penalty of is imprisonment for 25 years if the organisation is known to be a terrorist organisation and 15 years if the person is reckless as to whether it is a terrorist organisation, under s 102.7(1) and (2).

15. A “terrorist act” includes not only action but also threatening action. The expression “terrorist act” is defined in s 100.1(1) of the Code as meaning:

“an action or threat of action where:

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

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

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

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

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

16. Subsections (2) and (3) of s 100.1, which are referred to in the definition of “terrorist act”, are in the following terms:

“(2)  Action falls within this subsection if it:

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

(b)  causes serious damage to property; or

(c)  causes a person’s death; or

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

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

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

(i)  an information system; or

(ii)  a telecommunications system; or

(iii)  a financial system; or

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

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

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

(3)  Action falls within this subsection if it:

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

(b)  is not intended:

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

(ii)  to cause a person’s death; or

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

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

17. Although the introductory words to the definition of “terrorist act” and par (b) of that definition refer to “threat” of action, par (a) of the definition of “terrorist act” and s 100.1(2) and (3) refer to “action” alone. These latter provisions are, however, to be understood as defining the parameters of “action” whether actual or threatened: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (Naaman No 2 CA) at [34]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44].

18. A “terrorist act”, referred to in various offences against Pt 5.3, has the “intention” elements specified in pars (b) and (c) of the definition in s 100.1. The Code relevantly explains “intention” for these purposes in s 5.2(3) as follows:

“A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

19. The structure of the THRO Act indicates that its purpose is to maintain the safety and protection of the community against the risk posed by an offender of committing a serious terrorism offence by two principal means: continuing detention orders or CDOs or extended supervision orders or ESOs. The present case involves an application only for an ESO and not a CDO. At this preliminary stage, the State is only seeking an ISO and related orders. ESOs and ISOs are governed by Pt 2 of the THRO Act (ss 19 - 32).

Extended and interim supervision orders and examination orders

20. Part 2 of the THRO Act includes s 22 which provides that the State may apply to the Supreme Court for an ESO and s 23 contains the requirements with respect to applications for ESOs. Since there was no issue between the parties that these requirements were met in the present case and I am satisfied that they have been met, it is not necessary to consider these provisions further at this point.

21. Pre-trial procedures in relation to applications for an ESO are addressed in s 24 of the THRO Act. Once again, since this judgment deals only with the application for an ISO and examination orders and there is no issue in the present case concerning the procedures under s 24, it is only necessary to note that s 24(5) indicates that one function of the preliminary hearing conducted under s 24(4) is to enable the Court to obtain appropriate and recent psychiatric and psychological reports in respect of the defendant so that a properly informed decision can be made at the final hearing concerning whether to make an ESO. These reports are mandatory considerations to which the Court must have regard, under s 25(3) of the THRO Act, when determining whether to make an ESO.

22. In addition, in order to allow an application for an ESO to be considered on a properly informed basis with the benefit of reports obtained under s 24(5) and without undue time pressure, s 27 permits the Court to make an ISO if, as provided in s 27(a), it appears to the Court that the offender’s current supervision will expire before the proceedings are determined and the condition in s 27(b) is satisfied. There was no dispute that the condition in s 27(a) was met in the present case, and given the circumstances and the expiry of the defendant’s current ESO on 15 August 2025, I accept that this position is correct.

23. It is significant that ss 24(5) and 27(b) contain, amongst other things, the same test which must be satisfied before the orders under those sections can be made.

24. Section 24(5) provides:

“(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the eligible offender to attend those examinations.”

25. If the Court is satisfied of the matter in the chapeau to s 24(5), the order for examinations and reports is mandatory; the Court “must make [those] orders”. The situation concerning making an ISO under s 27 is different.

26. Section 27 is in the following relevant terms:

“The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court:

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

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

27. Thus, under s 27, if the Court is satisfied of various matters, including that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court has a discretion whether or not to make an ISO: State of New South Wales v Richardson (Preliminary) (No 2) [2023] NSWSC 794 at [9] (Campbell J).

28. Notwithstanding that difference, the principal question that must be determined, under both ss 24(5) and 27(b), for the purposes of this preliminary hearing, is whether the matters alleged in the “supporting documentation” would, if proved, justify the making of an ESO.

29. The phrase “supporting documentation” in relation to Pt 2 of the THRO Act is defined in s 4(1) as meaning “the documentation referred to in section 23(3)”. Section 23(3) is in the following terms:

“(3) An application must be supported by documentation—

(a) that addresses each of the matters referred to in section 25(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.”

30. Determining whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO requires the Court to consider the matters of which it must be satisfied before it may make an ESO. These matters are set out in s 20, which relevantly for present purposes provides:

“The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if:

(a) the offender is … under supervision … -

…

(ii) under an existing … extended supervision order …, and

…

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

(c) the Supreme Court is satisfied that the offender is any of the following:

…

(iii) a convicted NSW terrorism activity offender, and

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

31. There was no dispute for the purposes of the present preliminary application that the requirements of s 20(a), (b) and (c) were satisfied in the present case and, in light of all the evidence, I am satisfied that this is correct.

32. As to the assessment of risk in s 20(d), s 21 of the THRO Act provides some guidance in the following terms:

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

33. Furthermore, in making a determination whether to make an ESO the safety of the community must be the paramount consideration, by virtue of s 25(2). Finally, s 25(3) contains a non-exclusive list of matters to which the Court must have regard in determining whether or not to make an extended supervision order in respect of an eligible offender as follows:

“(a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence,

(d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community,

(f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives,

(g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(h) the likelihood that the offender will comply with the obligations of an extended supervision order,

(i) without limiting paragraph (h), the level of the offender’s compliance with any obligations to which the offender is or has been subject while—

(i) on release on parole, or

(ii) subject to a control order, or

(iii) subject to an earlier extended supervision order or interim supervision order, or

(iv) subject to any other order of a court,

(j) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

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

(m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.”

General principles concerning the making of an ESO or an ISO

34. As has already been noted, the test in ss 24(5) and 27(b) which must be satisfied before examination orders or an ISO can be made is whether the Court “is satisfied” or “it appears to the Court”:

“that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

35. The expression “matters alleged” has been held to refer to facts rather than conclusions. In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J said that the test does not require "prima facie" proof of the matters alleged and continued:

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

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

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

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

36. In my view, Rothman J’s comment that the phrase “matters alleged” refers to facts not conclusions should be understood as distinguishing between facts, including inferences and expert opinions based on other facts, on the one hand, and, on the other hand, necessary or ultimate conclusions as to the issues which the Court has to decide, for example whether a defendant poses an unacceptable risk of committing a serious terrorism offence.

37. Thus, if the supporting documentation included an expert psychiatrist’s or psychologist’s opinion as to the likelihood of the offender committing a serious terrorism offence, as referred to in s 23(3)(b) and (c), that opinion would be a “matter alleged” in the supporting documentation. If other matters alleged in the supporting documentation provided a substantial reason to doubt the validity or correctness of such an opinion, that would be a matter that should be taken into account in determining whether to refuse to exercise the discretion to make an ISO if the power to do so under s 27 is enlivened.

38. Further, Campbell J held in State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 at [48] that in applying the test in ss 24(5) and 27(b):

"… it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff's case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case."

39. The words “would … justify the making of an [ESO]” in ss 24(5) and 27(b) are capable of imposing a higher or a lower test to be met. They could require the Court to be satisfied that an ESO should actually be made, in the light of the matters alleged. Alternatively, those words might require satisfaction of a lesser standard, that the power to make an ESO could be enlivened, having regard to the matters alleged.

40. The Court of Appeal has endorsed a construction of ss 24(5) and 27(b) that involves a “lower standard” in determining whether to grant interim orders compared to the standard that is to be applied when determining whether to make an ESO under s 20 of the THRO Act. In Naaman (No 2) CA, the Court said at [17] (Basten, Macfarlan and Leeming JJA):

“Broadly speaking, the [THRO] Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order. There is no necessary inconsistency between the interim orders made in August and September 2018 and the dismissal of the State’s application for an extended supervision order following a final hearing by the primary judge.” (emphasis added)

41. N Adams J accepted that the test on a preliminary application under the THRO Act is a “low one” in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]. Garling J took the same approach in State of New South Wales v Sturgeon [2019] NSWSC 559, when considering substantially the same wording in the Crimes (High Risk Offenders) Act 2006 (NSW). His Honour said at [5] - [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 [an] 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 (NSW) v Tillman [2007] NSWCA 119 at [98].”

42. Determining whether the making of an ESO would be justified or open, assuming the matters alleged in the supporting documentation are proved, requires consideration of the test in s 20(d) of the THRO Act of whether 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 under the order”. In relation to this paragraph, the Court of Appeal has held in Naaman No 2 CA at [29] (Basten, Macfarlan and Leeming JJA):

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

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

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

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

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

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

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

43. Bearing in mind these provisions and principles, I turn to consider the principal issue for determination on this interim application which is in effect whether, on the assumption that the matters alleged in the “supporting documentation” are proved, it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order.

The ”supporting documentation”

44. The “supporting documentation”, being the documentation supporting the application which addresses each of the matters in s 25(3) and includes a report prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert that assesses the likelihood of the defendant committing a serious terrorism offence, was adduced by the State by way of:

1. the affidavit of Aleksandra Jez of 15 May 2025 and exhibit AJ1 to that affidavit. Exhibit AJ1 contained supporting documentation including most pertinently (without being exhaustive):

1. the risk assessment report dated 30 April 2025 of Ms Ahu Kocak, registered psychologist, which the State relied on as the report referred to in s 23(3)(b) of the THRO Act;

2. the risk assessment report dated 8 April 2025 of Dr Tamara Sweller, registered psychologist, which the State did not rely on as the report referred to in s 23(3)(b) but which was accepted as being a report which addressed the matter in s 25(3)(b) of the THRO Act and thus was documentation referred to in s 23(3)(a);

3. the risk management report dated 5 May 2025 of Ms Lily Fewster and Mr John Banton, officers of Corrective Services NSW (with Annexure 2 dated 13 May 2025) and the risk management report dated 14 May 2025 of Detective Senior Constable Jimmy Wang being reports which addressed the matter in s 25(3)(d) and thus was documentation referred to in s 23(3)(a);

4. the reports and documentation addressing matters referred to in s 25(3) relied upon by the State in the proceedings for the first ESO in respect of the defendant in 2021 and 2022 including:

1. the risk assessment reports dated 20 July and 31 August 2021 of Ms Filipa Abreu, registered psychologist;

2. a report dated 27 May 2021 of Dr Rodger Shanahan, an expert in Arabic and Islamic studies, terrorism and political violence;

3. a report dated 21 January 2022 of Dr Sathish Dayalan, psychiatrist, obtained under s 24(5) of the THRO Act;

4. a report dated 21 January 2022 of Dr Katie Seidler, registered psychologist, also obtained under s 24(5);

5. a risk management report dated 16 August 2021 of Corrective Services NSW officer Shane Bagley of 16 August 2021;

6. a risk assessment report dated 19 August 2021 of Detective Senior Constable Jimmy Wang;

7. documentation in relation to the sentence proceedings for the Index Offending on 7 September 2018 including the views of the sentencing court;

8. an affidavit dated 26 May 2021 of Andrew Tayler, Manager of the Intelligence Unit at Parklea Correctional Centre, annexing a letter sent by the defendant in about mid-2019 to the Governor and notes of an interview with the defendant;

9. an affidavit date 28 June 2021 of Troy Brien, Functional Manager in Intelligence at Wellington Correctional Centre, concerning a drawing found in early 2020 of an AK-47 with the word “Klashnikove” on the defendant’s cell wall together with the letters “NSI”, which refers to a person who is of national security interest;

10. the police fact sheet for H71275486 in relation the Index Offending;

11. Corrective Services NSW incident details and associated documentation together with photographs, messages, videos and recordings and other evidence relating to activities and interests of the defendant in the period from 21 September 2015 to 17 August 2021 and some undated material;

12. a report dated 9 November 2020 of Dr Sweller, registered psychologist, on the defendant’s then current extremist risk factors;

5. the defendant’s criminal history dated 3 February 2025, his custodial history dated 12 February 2025 and Corrective Services NSW Inmate profile dated 12 February 2025;

6. selected Offender Integrated Management System (OIMS) Case Notes for the period 21 December 2021 to 3 April 2025;

7. Progress Notes from the Proactive Assessment and Intervention Service (PRAXIS) and the Countering Violent Extremism Program (CVE) for the period 2 March 2022 to 29 January 2025;

8. Cognitive Functioning Report concerning the defendant dated 12 February 2024 of Ms Ahu Kocak, registered psychologist;

9. summary of Neuropsychological and Personality Testing concerning the defendant dated 16 July 2024 of Ms Ahu Kocak, registered psychologist;

10. PRAXIS Service Summary concerning the defendant dated 18 December 2024 of Chanel Moubarak;

11. investigators’ notes from 27 July 2022 to 1 May 2025;

12. documentation concerning the defendant’s offending on 26 July 2023, the sentence proceedings for these offences and the relevant parole order;

13. a report dated 12 March 2025 and supplementary report dated 23 April 2025 of Dr Rodger Shanahan, an expert in Arabic and Islamic studies, terrorism and political violence;

2. a second affidavit of Aleksandra Jez of 27 June 2025 and exhibit AJ2 to that affidavit. Exhibit AJ2 contained supporting documentation including most pertinently (without being exhaustive):

1. PRAXIS progress notes and investigators’ notes relating to the defendant during the period from 1 June 2022 to 2 June 2025;

2. statements and documentation relating to the defendant’s offending on 26 July 2023;

3. a third affidavit of Aleksandra Jez of 4 August 2025 with annexures which contained supporting documentation including most pertinently (without being exhaustive):

1. OIMS Case Notes relating to the defendant for the period 2 June 2025 to 15 July 2025;

4. an affidavit of Jonathon Hamilton-Foster of 22 April 2025 concerning the remote monitoring by New South Wales police of the defendant’s account by which he accessed the internet and included annexures detailing the defendant’s accessing sites in May 2022, October and November 2024;

5. an affidavit of Katrina Czerkies of 5 June 2025 providing information concerning Corrective Services NSW’s CVE program and the defendant’s engagement with that program, noting that if the defendant is no longer subject to an ISO or ESO he will not be eligible for engagement with that program but would be referred to a different program in the community such as the Engagement and Support Program (ESP); and

6. an affidavit of Heather Jackson of 10 June 2025 providing information concerning the ESP and the defendant’s previous unwillingness to engage with that program.

45. In addition, the supporting documentation included a statement of agreed facts signed on behalf of the parties and filed on 6 August 2025, which helpfully summarised some of the most pertinent information.

46. The defendant’s evidence was the affidavit of Joseph Harding of 28 July 2025 and the affidavit of Marie Iskander of 28 July 2025. It was accepted that none of this material was “supporting documentation” for the purposes of ss 24(5) and 27(b) and it was only adduced in relation to the residual discretion under s 27(b) and in relation to the conditions that might be imposed if an ISO were made.

47. The matters alleged in the supporting documentation include what is set out in the following paragraphs concerning the defendant’s background, his criminal history, the Index Offending, the material downloaded from his telephone and hard drive, incidents while in custody, his conduct while on the IDO and the first ESO and the opinions concerning the risk posed by the defendant. While I have reviewed the supporting documentation as a whole and my attention was drawn to many specific parts of the documentation, I have not for example read in detail every page of the OIMS notes or looked at every video recording of internet material accessed by the defendant, given the time available and the fact that the experts’ reports analysed this material and there was no suggestion that their opinions were not properly founded. The following paragraphs provide an adequate summary of the most pertinent matters alleged in the supporting documentation upon which my determination is based.

The defendant’s background

Birth and upbringing

48. The defendant was born in Sydney and is 38 years old. He was raised in Merrylands by his aunt and uncle, whom he understood to be his biological parents. At about the age of 14 years, the defendant found out that he was adopted. This revelation was experienced as a significant betrayal, leading to escalating emotional dysregulation, family conflict, and a decline in behavioural functioning. His biological mother is of Lebanese descent and his father is of Samoan descent. The defendant has one half-sister who lives in Lebanon.

48. The defendant disclosed to Dr Seidler memories of going for walks as a child with his aunt, who wears a head scarf, and being called “cockroaches” by people in the area, as well as being told to “go back to your country”.

49. The defendant attended primary school and high school in Parramatta but reported that his academic functioning was poor, with significant challenges in comprehension, attention, hyperactivity, restlessness and language. He left school in year 8 or 9 and was employed in plumbing and cement rendering. He subsequently worked as a courier but was unable to maintain long-term employment. He used drugs to some extent during this period.

50. The defendant reported having been exposed to the scene of two deaths when he was 18 years old. According to the defendant, the two men, who were friends of his maternal uncle, had been shot and the defendant encountered them after walking onto the street. The defendant indicated that he had a close relationship with one of the men and experienced insomnia and panic attacks for a short time after the incident.

51. The defendant was married at about the age of 21 but the marriage lasted only one to two years. He has not had any other significant relationships since and is presently single. The defendant reported feeling depressed after his divorce and was treated with antidepressant medication for three months, until he self-discontinued the medication. The defendant also had a subsequent period of increased drug and alcohol use, including using cocaine, cannabis, and abusing prescription medications, including Tramadol, Valium, Xanax. The defendant attributed his increasing substance use to his psychological pain, confusion, and escalating paranoia. He also reported experimenting with amphetamines, crystal methamphetamines, “acid” and ecstasy.

Overseas travel to Lebanon and Turkey

53. The defendant said that, while he was growing up, he regularly travelled overseas, including to Lebanon, with his family. On the defendant’s account, in 2014, his uncle, his aunt’s brother, was reportedly captured by Islamic State whilst being involved in the Lebanese Army. The defendant said that he and his aunt travelled to Lebanon to try and advocate for his uncle’s release, but that his uncle was killed by Islamic State. He described this as having been a significant loss for him, as he was particularly close to this uncle, having spent a great deal of time with him during his formative years.

54. In 2015, the defendant travelled to Turkey, where he was imprisoned by Turkish Authorities for approximately four weeks on suspicion of violating the border into Syria. The defendant was interviewed by Australian Federal Police upon his return. The defendant was not charged with any offences but his passport was confiscated. According to the defendant, he travelled to Turkey for humanitarian purposes to assist with the influx of Syrian refugees.

Mental Health

55. In relation to the defendant’s mental health, he has recently been diagnosed with Autism Spectrum Disorder (ASD) Level 1 (requiring support) with accompanying intellectual impairment. Previously, he had been diagnosed with chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, with an additional comorbid diagnosis of Substances Misuse Disorder. The defendant has been described as possessing a number of "personality traits which have contributed to cognitive, affective and behavioural dysregulation" and which have had "significant negative impact on his life". He appears to possess an "unstable" self-image, insecure attachment style and a chronic sense of abandonment and emptiness which has contributed to his experience of strong and overwhelming emotions such as anxiety, anger and depression.

Criminal history prior to the Index Offending

56. The defendant’s criminal history includes traffic offences, drug offences, resist/assault police type offences, and assaults. He has, however, never been convicted of a serious terrorism offence or any other terrorism offence.

57. In 2005, at the age of 17, the defendant was cautioned by the Children's Court for an offence of assaulting an officer in the execution of his duty and in 2007, a similar offence was dismissed without conviction by the Local Court.

58. In 2010, the defendant was convicted of assault occasioning actual bodily harm for punching a security guard at a bar. He was sentenced to a two-year good behaviour bond.

59. Between 2012 and 2018, the defendant was convicted of various offences including possessing prohibited drugs, possessing (or attempting to possess) a restricted prescribed substance, possessing equipment for administering prohibited drugs, and driving while his licence was suspended.

60. On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm when he attended the victim’s home, where the victim’s wife and three young children were also present. The defendant engaged the victim in conversation outside, and when the victim turned to go inside, without warning, the defendant struck him to the left side of the face from behind, knocking the victim to his hands and knees. The defendant then kicked the victim in the head, knocking him backwards, and his head hit the concrete.

61. On 6 March 2018, the defendant was arrested and charged with recklessly causing grievous bodily harm and was released on bail. On that day, the defendant’s iPhone was seized and accessed, photographs of the telephone were taken and videos and photographs were eventually downloaded from the telephone. It can be noted at this point that on 10 October 2019, the defendant was convicted in respect of the recklessly inflicting grievous bodily harm offending committed on 5 March 2018 and was sentenced to a fixed term of imprisonment of 15 months, commencing on 22 July 2019 and expiring on 21 October 2020. He was also convicted with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for failing to appear in accordance with his bail acknowledgement.

The Index Offending

62. While on bail in respect of the offending on 5 March 2018, the defendant committed the Index Offending, which arose out of the following circumstances. On 7 August 2018, the defendant was arrested for breaching his bail conditions and was taken to Parramatta Police Station. Upon arrival there, he was asked to remove his hooded jumper from his head by officers. The defendant then became agitated and aggressive, and yelled at an officer in Arabic "my dick in you and your mum's a cunt", and, in English, "you Indian cunt, I'll knock you out". The defendant then gestured to the officer and, without warning, raised his right hand and punched the victim with a closed fist to the right side of the face, knocking him back. The officer suffered swelling, soft tissue damage, and bruising to the right side of his face.

63. Following a violent struggle between the defendant and other officers present, the defendant was handcuffed and placed inside a cell in the charge room. The defendant then made the threats towards a Senior Constable who was present:

"I'll fuck you up you copper dog cunt, if this was Lebanon I would use my AK and shoot you, your family, everyone you know. You're gonna die copper when I get out of here, you're dead. I'm going to remember your face and hunt you down. You're fucked now, I'm going to get you when I get out of here."

64. He then turned towards another Constable and said:

"[H]ey, you with the tattoos, I'm going to remember your face and when I get out I am going to cut your fucking head off, cunt. You are going to be on Australia's first ISIS video."

65. The defendant also head butted, and spat on, the cell door.

66. On 7 August 2018, during the arrest of the defendant, his Nokia mobile telephone was seized and eventually files were downloaded from that telephone.

67. On 10 August 2018, during the execution of a search warrant at the defendant’s premises a Toshiba hard drive was seized and subsequently material was downloaded from the hard drive including material from the defendant’s social media accounts.

68. On 14 December 2018, the defendant was convicted and sentenced in respect of the Index Offending, having pleaded guilty in the Local Court to the following offences committed against Police and Corrective Services officers:

1. Assault law enforcement officer (not police) inflicting actual bodily harm, contrary to s 60A(2) of the Crimes Act 1900 (NSW);

2. Destroy/damage property, contrary to s 195 of the Crimes Act;

3. Two offences of intimidate police officer in execution of duty without actual bodily harm, contrary to s 60(1) of the Crimes Act; and

4. Three offences of resist officer in the execution of duty, contrary to s 58 of the Crimes Act.

69. In sentencing the defendant for the Index Offending, Magistrate Still remarked that the offences were “serious”, though some of the offences were far worse than others, and expressed guarded views about the defendant’s expression of remorse and his need for psychological treatment. The Magistrate imposed an aggregate sentence of imprisonment for 3 years and 4 months, commencing on 8 August 2018 and expiring on 7 December 2021, with a non-parole period of 2 years and 1 month, expiring on 7 September 2020. This sentence was confirmed on appeal to the Parramatta District Court on 30 January 2019.

Material downloaded from the defendant’s telephone and hard drive

70. In relation to the material downloaded from the defendant’s iPhone, Nokia telephone and the Toshiba hard drive in 2018, Dr Shanahan an expert in Arabic and Islamic studies, terrorism and political violence, opined that the content of some of those materials was consistent with the ideological position espoused by violent extremist groups such as Islamic State. In addition, Dr Shanahan identified photographs taken from the defendant’s iPhone which contained:

1. contact names which may have relevance to violent extremism;

2. materials produced by Islamic State’s al-Ajnad media, and jihadi nasheeds;

3. messages recommending that the defendant follow (online) people with connections to individuals associated with violent extremism; and

4. references to Telegram channels for individuals who have expressed support for violent extremist views in the past, or with names suggestive of violent extremism.

71. In relation to the audio files identified on the defendant’s Nokia phone in 2018, Dr Shanahan stated that the audio files were Islamic State nasheeds, both of which were produced by Islamic State’s al-Ajnad media group. He was of the view that both the nasheeds were “closely associated with the violent, Salafist-Jihadist ideology espoused by Islamic State”, with one talking about “beheading the enemy”.

72. In relation to the social media materials which were downloaded or otherwise captured from the social media accounts which appear to have been operated by the defendant in 2018, Dr Shanahan considered that some of these materials contained pictures and text associated with violent extremism.

73. Dr Shanahan was also of the opinion that the statement made by the defendant in the course of the Index Offending committed in 2018 was consistent with support for terrorist acts. In particular, Dr Shanahan noted that

“[m]aking such a threat to behead a police officer and to make a video of it is consistent with the type of act that Islamic State (or ISIS) called on its followers to undertake”.

Incidents while in custody after the Index Offending

74. On 22 July 2019 while in custody, the defendant wrote a letter to the Governor of Parklea Correctional Centre, intelligence officers and the judge presiding over his then ongoing criminal case in respect of the reckless grievous bodily harm offence committed on 5 March 2018. The letters, where were stopped at the Correctional Centre, included the following:

1. "We disbelieve in your laws";

2. called the intended recipients "murderers" due to Australia's perceived involvement in "war on Islam" referring to the conflicts in Iraq/Syria (with reference to specific towns);

3. referred to inmates in custody charged with murder as "brothers";

4. "Tawagheet of 2day" and "murtadeen";

5. indicated that he rejects democracy, and referenced the nasheed "Clashing of the swords".

75. Dr Shanahan opined that this letter was “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.” The “Clashing of the swords” referred to an Islamic State nasheed released in 2014 that accompanied videos that showed fighting and executions and its lyrics extolled virtues of fighting in the name of religion.

76. In September 2019, Corrective Services photographed the defendant's body. The tattoos included the word "Jehad" and a depiction of an AK-47 machine gun. Dr Shanahan stated that the AK-47 weapon is a mainstay of jihadist groups around the world, and was of the opinion that “jehad/jihad in this context could reasonably be understood to mean a religious obligation to undertake armed action against designated enemies of Islam.”

77. On 24 October 2019, the defendant was designated a National Security Interest (NSI) inmate.

78. On 9 March 2020, during the course of a targeted cell search the defendant became verbally aggressive about the manner in which his religious books were handled, and then became physically aggressive in the course of being restrained after failing to comply with directions. The searching officer stated he was also Muslim and had taken care to not be disrespectful to the books whilst searching. Specifically, the defendant was upset that officers moved the defendant's TV on top of his copy of the Quran during the search. The defendant stated to the Muslim searching officer, "you've got to choose your side, you chose your side, you can't be Muslim and do that"; "you can't be on this side and say you're Muslim and then go against your brother"; "you got no respect"; "look what he's done to my fucking books. Where's the respect there brah?"; "what do you mean what's wrong? you've got the TV on top of the Quran … respect my fucking books cuz."

79. Correctives Services restrained the defendant before he was moved to an isolated cell. While being restrained the defendant said, "I'm going to fuck your mum you fucken dog"; "you traitor cunt"; "you call yourself a Muslim you're a fucken murtad". The defendant then made threats of violence towards staff, including "I'm going to put holes in you"; "I'm going to fucken kill you" and "I am going to cut your throats and rape your mothers”.

80. During the course of the cell search, Corrective Services officers also identified graffiti on the cell wall, including a picture of what appeared to be a machine gun, with the word "Klashiknove" written underneath and the abbreviation "NSI" with the words "National Security Interest" written in small letters underneath.

The Initial IDO and the first ESO

81. As noted above, on 6 December 2021, Walton J made an IDO and, on 14 February 2022, N Adams J made the final ESO for three years from 14 February 2022.

Conduct while on the IDO and first ESO

82. On 13 December 2021, whilst in custody at the Metropolitan Remand and Reception Centre pursuant to the IDO, the defendant became involved in a physical altercation with other inmates, during which the defendant threw two punches to another inmate’s head, causing that inmate to fall backwards onto the pavement. On 20 June 2022, following a guilty plea, the defendant was convicted of the offence of assault occasioning actual bodily harm and sentenced to a 12-month Community Correction Order.

83. The defendant was first approached by Corrective Services in relation to CVE (PRAXIS) on 2 March 2022 and he provided formal consent to participation in the program on 26 April 2022. The defendant has been engaged with the PRAXIS program during his current ESO, while not in custody, until 26 May 2025.

84. On 24 November 2022, as part of his supervision under the ESO, police officers attended the defendant’s residence and recorded an interaction with him on body worn video. During this interaction, the defendant made the following statements:

1. In relation to his previous comments concerning the January 2015 terrorist attack at the offices of the satirical magazine Charlie Hebdo in Paris:

1. “…it’s something that is unappropriate (sic) for them to talk about the Prophet and there‘s repercussions you know whoever it is and that’s what I said…all I said was I don’t condemn it…”;

2. “…I didn’t condemn whatever happened in France…because what do you have to go there and draw pictures…that’s something you don’t do to Muslims…that’s like a no-go zone…”;

3. “I don’t condemn it…I’m not going to sit there and say what they did was wrong”;

4. “I’m not going to sit here and condemn their actions because that’s what I guess the Prophet said…”;

2. When asked whether he had previously stated that if someone insulted the Prophet in front of him he would “smash them”:

1. “I said that I don’t know what I’ll do”;

2. “We always go back to what the Prophet said. And you know what he would have done.”;

3. In relation to his religious views:

1. He does not believe that Muslims who become police officer are Muslims because “they give their allegiance to the Queen…they’re hypocrites”.

2. In relation to Muslims who give their “allegiance” to anyone or thing other than Allah, the defendant questioned: “Do you serve these tyrants or do you serve Allah Swt. To serve these tyrants you’ve got to be like, for example I’ll give you an example, to serve these tyrants, we call them tyrants like um the governments and stuff, these are people who blame [inaudible] so these are people of course we have to reject as Muslims, and that’s what I’m saying, yeah, like, you can’t give you allegiance to anyone other than to Allah Swt, he comes first…”

3. In relation to Muslims who vote in elections, “People who vote for like MPs and stuff, we don’t believe they’re Muslims. Because you’re voting for another legislator you haven’t rejected…”

4. In response to police saying it is their job to ensure the defendant complied with his order the defendant said:

1. “Oh brah, I’m, I’m I’m doing my best.”

2. “We hold, we hold these beliefs and at the end of the day, like I said to youse, I’m on this covenant and um, and we as Muslims are very true people and we try our best to abide by the covenant, you know so. I think youse have nothing to be worried about to be honest, that’s the honest truth. So, we are very like, when we say we stick to a covenant we, we proper you know, you understand what I’m saying? So, so I don’t think there’s nothing to be worried about. Yeah, other than that, it’s just my beliefs you know.”

85. In relation to these views expressed by the defendant, Dr Shanahan identified that there were a number which conveyed support for terrorist acts or violent extremism, namely the January 2015 Paris terrorist attack on the Charlie Hebdo offices. In addition, Dr Shanahan was also of the opinion that the defendant’s statements were consistent with the views expressed by al- Qa’ida and Islamic State in relation to government and man-made laws.

86. On 26 July 2023, whilst subject to the first ESO, the defendant attended his workplace and approached a colleague operating a pallet rider. The defendant stated, “I heard you were talking shit about me”, and when the victim did not respond, the defendant punched the victim with a closed fist, hitting the victim’s right cheek bone/jaw area. The force of the punch made the victim fall to the ground on his back, and hit the back of his head on the concrete with force.

87. When other colleagues who had witnessed the incident took the victim out of the warehouse, the defendant continued to attempt to follow the victim and said to the victim and witnesses, “get back to work, don’t fucking say anything”. The defendant was holding a Stanley knife by his leg, flicking the blade up and down, and stated, “if anyone snitches, I’m going to kill you and your families”.

85. On 27 July 2023, the defendant was arrested and charged with the following offences in connection with his conduct on the day before:

1. Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act;

2. Armed with intent to commit indictable offence, contrary to s 114(1)(a) of the Crimes Act;

3. Three charges of Threat/cause injury/harm to prevent information to police, contrary to s 315A(1) of the Crimes Act; and

4. Fail to comply with extended supervision order, contrary to s 30 of the THRO Act.

89. It can be noted at this point that, on 18 October 2023, following a guilty plea, the defendant was sentenced before Parramatta Local Court to 12 months imprisonment, commencing 27 July 2023 and expiring 26 July 2024, with a non-parole period of 6 months. The sentencing Magistrate observed in relation to the failure to comply with the ESO:

“In terms of the ESO failure, certainly it is very relevant and it is nothing to do with terrorism, it is not as though he is failing to comply with his supervision order in terms of anything to do with terrorism. He is not out there preaching terrorism or organising terrorism or researching terrorism. It really is just a workplace incident that has nothing to do with terrorism and that is relevant, I think, to the objective criminality of the breach but it is a breach nonetheless of what is a very restrictive order. Given his record for violence and it is a concerning one, noting a 40 month sentence not too long ago, he had just finished a community corrections order a few weeks earlier for assault.”

90. As noted above, while the defendant was in custody for these offences, the ESO was suspended under s 26(7) of the THRO Act. The defendant was released to parole on 26 January 2024.

91. On 3 August 2023, police attached to the High Risk Terrorist Offenders Unit (HRTOU) executed a search warrant at the Guildford address where the defendant had been residing. During the search, police located a mobile phone belonging to the defendant, which was seized. An orange box cutter/Stanley knife was located under the lounge which was also seized.

92. Dr Shanahan has reviewed, in addition to the material referred to above, the OIMS case notes in relation to the defendant made from 15 February 2022 to 3 April 2025 and CVE Program PRAXIS Progress Notes for the period from 2 March 2022 to 29 January 2025. Dr Shanahan was of the opinion that statements made by the defendant recorded in those notes demonstrated that he had a view of violent jihad within Islam which was consistent with the interpretation held by radical Islamist terrorist groups such as Islamic State and al-Qa’ida. Dr Shanahan further considered that the defendant’s stated rejection of man-made laws, his statements in relation to non-Muslims, and his statements in relation to homosexuality were consistent with the stances advocated by Islamic State and al-Qa’ida.

93. The defendant has remained engaged with CSNSW CVE (PRAXIS) from 26 April 2022 during his first ESO, excluding a period of approximately 7 months whilst he was in custody as a result of being sentenced for the 26 July 2023 offending referred to above. He voluntarily participated in over 70 psychological sessions with PRAXIS. Until about 28 April 2025, he actively engaged with the PRAXIS service and presented as forthcoming and willing to discuss issues pertinent to the needs and goals outlined in his intervention plan. The defendant’s engagement was described as consistent. The defendant engaged predominantly with a psychologist, and intermittently with a Religious Support Officer. The defendant continued to engage with PRAXIS and was willing to work with another psychologist when he was informed of a staff change in mid-2024.

94. On 26 May 2025, 11 days after the present proceedings commenced, during a phone call with Community Corrections, the defendant cancelled a PRAXIS appointment. He said that he was feeling overwhelmed and this led to expressions of frustration of how he got onto the order in the first place, noting he felt like this was due to seeing a psychologist. He said he wants to engage in PRAXIS, he just needed a short break.

95. On 28 May 2025, police attached to the HRTOU and Community Corrections Officers attended the defendant’s residence. During this attendance, the defendant stated that he wanted to disengage with PRAXIS leading up to the hearing in the present proceedings “as he did not want to think about anything that is related to it as it stresses him out”. The defendant stated that he was willing to re-engage with PRAXIS if he received a further ESO.

96. If the defendant is not subject to a further ESO, he will not be eligible to engage with CSNSW CVE (PRAXIS) following the expiry of his current ESO. The defendant can be referred to ESP, regardless of whether he is subject to an ESO. The defendant has been found to be eligible for the ESP and can be referred to the program at any time, including if he is no longer subject to an ESO.

The risk posed by the defendant

97. For the purpose of reaching her decision in relation to the first ESO, N Adams J considered the relevant reports of the expert psychiatrists and psychologists before the Court at that time concerning the risk then posed by the defendant, in particular: the report of Ms Filipa Abreu, Senior Psychologist, dated 20 July 2021; the report of Dr Katie Seidler dated 18 January 2022; and , the report of Dr Sathish Dayalan dated 21 January 2022. This material is included in the evidence before me. I respectfully adopt her Honour’s consideration of those reports, set out in the 2022 judgment. It is unnecessary to repeat that consideration here but this judgment should be read in conjunction with her Honour’s 2022 judgment and the 2021 judgment of Walton J, dealing with the IDO imposed by his Honour.

98. As to the expert assessments of the risk currently posed by the defendant, the supporting documentation included most significantly:

1. the risk assessment report dated 30 April 2025 of Ms Ahu Kocak, registered psychologist, which the State relied on as the report referred to in s 23(3)(b) of the THRO Act; and

2. the risk assessment report dated 8 April 2025 of Dr Tamara Sweller, registered psychologist, which the State did not rely on as the report referred to in s 23(3)(b) but which was accepted as being a report which addressed the matter in s 25(3)(b) of the THRO Act and thus was documentation referred to in s 23(3)(a).

99. In addition, in relation to the conditions which might be imposed as part of an ISO, the supporting documentation included:

1. the risk management report dated 5 May 2025 of Ms Lily Fewster and Mr John Banton, officers of Corrective Services NSW (with Annexure 2 dated 13 May 2025) which addressed the matter in s 25(3)(d) and thus was documentation referred to in s 23(3)(a); and

2. the risk management report dated 14 May 2025 of Detective Senior Constable Jimmy Wang being reports which addressed the matter in s 25(3)(d) and thus was documentation referred to in s 23(3)(a).

Ms Ahu Kocak’s report dated 30 April 2025

100. Ms Kocak is a registered psychologist with an academic and professional background which has contributed to her expertise in forensic risk assessment and treatment of offenders. She prepared her report of 30 April 2025 on the basis of the information provided to her by the Crown Solicitor’s Office. She did not have the opportunity to interview the defendant for the purposes of the assessment and report as he did not consent to participate. Ms Kocak noted, in effect, that this “limits the ability to directly assess his current thoughts, intentions and degree of attitudinal or behavioural change.”

101. Ms Kocak noted the material which supported the conclusion that the defendant had a history of support for violent extremism or ideologically/religiously motivated violence and earlier risk assessments made by Ms Abreu, Dr Dayalan and Dr Seidler. As to his progress since being on the ESO, it was noted that the defendant appeared to attempt to adhere to strict interpretations of Islam in understanding and complying with the ESO conditions and in decisions he makes around employment, socialisation and engagement with services. The defendant’s previous diagnoses of Adjustment Disorder with mixed Anxiety and Depressed Mood, Antisocial Personality Disorder and Substance Use Disorder were noted as well as the later diagnosis of Autism Spectrum Disorder Level 1 and possible Unspecified Schizophrenia Spectrum and Other Psychotic Disorders. Ms Kocak was of the view that he presented with

“significant pre-occupation with particular concepts and topics, including religion and faith, violence, politics, physical body image or exercise, and para-normal or spiritual activity, particularly with the concept of ‘Jinn’”.

102. It was noted that the defendant had been “primarily compliant” with his conditions and appeared to exhibit

“a conscious effort to abide by and understand the details of his requirements so much so that at times, fear of non-compliance with the wording of the ESO appears to have had caused anger outbursts and distress”.

103. Ms Kocak said that the defendant had presented with a trusted relationship with PRAXIS psychology staff, often utilising the service to “vent” any frustrations or distress, assisting with the de-escalation process. It was accepted that since being on the ESO, the defendant had been “largely open and transparent” regarding his attitudes and views towards concepts that would constitute support or sympathy for violent extremism or religiously motivated violence. Ms Kocak referred to the defendant’s expressed views concerning violence and Islam as well as support for ISIS, although it was noted that he was recorded as stating that upon reflection he had no direct intention or plan to participate in jihad but stood by the fact that it was an option for all Muslims.

104. Utilising the Violence Risk Appraisal Guide – Revised (VRAG-R), an actuarial risk assessment tool designed to assess the risk of future ordinary violence in offenders, it was assessed that the defendant was in the “risk bin” for offenders whose risk level was just over twice as high as the risk posed by the typical violent offender and 60% of offenders in that bin reoffended violently within five years. In addition, the Terrorist Radicalisation Assessment Protocol (TRAP-18) which provides a template to structure professional judgment in the assessment of persons considered to be at risk of “lone actor” terrorist attacks or targeted extremist violence was readministered based on all available material. Ms Kocak concluded that under the TRAP-18 the defendant had

“seven of the eight distal characteristics present, including personal grievance and moral outrage; framed by an ideology; failure to affiliate with an extremist or other group; thwarting of occupational goals; mental disorder and criminal violence. Dependence on the virtual community is currently not present; however, historically, it has been, and the failure of sexually intimate pair bonding is unknown, although he has stated that he finds violence more pleasurable than sex.”

On this basis it was said that the results of the TRA P-18 indicate that the defendant continues “to require active case management and monitoring.”

105. Ms Kocak noted that the application of the Violent Extremism Risk Assessment – Version 2 Revised (VERA-2R) previously by Ms Abreu led to an assessment identified as “Moderate-High risk of engaging in violent extremism or terrorism” but Ms Kocak does not carry out an assessment designed to yield a quantitative assessment, as I understood her report. Rather, Ms Kocak set out in some detail her analysis of relevant factors noting that in relation to the defendant’s beliefs, attitudes and ideology there was a “High loading of risk indicators”, in relation to his social context and intention there was a “Low-Moderate loading of risk indicators”, in relation to his history action and capacity there was a “Moderate loading of risk indicators”. She also noted the protective factors in the defendant’s case.

106. Ms Kocak was of the opinion that neurodevelopmentally, the defendant presented with impairments that have profoundly shaped his cognitive style and emotional and social development. In particular it was noted that the defendant

“often volunteers extremist rhetoric – including glorification of Jihad and martyrdom – in a scripted, ritualistic manner. Critically, such utterances may occur without full reflective understanding or immediate operational intent, complicating or over estimating risk assessments that rely heavily on verbal expressions of attitudes and verbal expressions…”.

107. Ms Kocak was also of the opinion:

“107. It is important to distinguish that [the defendant’s] primary risk lies in impulsive interpersonal violence – triggered by perceived threats, paranoia, personal grievances, or emotional dysregulation – rather than premeditated, ideologically orchestrated aggression. While he verbally endorses violent extremist narratives, there is a consistent lack of evidence of operational planning, target identification, or strategic mobilisation towards an actual act of terrorism.

…

109. Nonetheless, it is important to recognise that within the framework of [the defendant’s] personal capacities and psychological limitations, even modest shifts – such as increased compliance, expressed disillusionment with violence, and an emerging curiosity about understanding his own neurodivergence – represent positive indicators. Though his progress appears slow, these developments provide a foundation for scaffolding longer-term change efforts.

110. It is important to note that [the defendant] may never change his views. However, this does not equate to him necessarily being at risk of committing an act of terrorism, violent extremism or other unlawful behaviour. Having the intention to commit acts of ideologically based violence is an essential element in assessing the risk posed by individuals. It is the intention to act that distinguishes supporters and sympathisers from those who want to use violence … . However, if [the defendant] were to engage in violence, he would most likely engage in interpersonal violence/aggression to resolve disagreements about his values (faith, family, loyalty) than he would any large-scale attack. Indeed, this aspect of his antisocial behaviour has been prevalent since childhood. He also has the potential to move abroad and support or join a political or Jihad assist movement that aspires to establish a Caliphate or govern with Sharia law. However, the latter is much less likely in the absence of a passport.”

108. Notwithstanding those apparent qualifications, Ms Kocak was of the opinion that the defendant “does pose a risk of committing a serious terrorism offence… If he is not subject to an ESO…”. This was said to arise predominantly out of his emotionally reactive, grievance-driven, ideologically justified violence rather than premeditated, sophisticated terrorist acts but his vulnerabilities were said to create specific risks that in her opinion “could satisfy the legal threshold of a ‘serious terrorism offence’”. More particularly, Ms Kocak’s assessment was that the defendant posed:

1. a “Moderate to High” risk of engaging in a terrorist act “S 101[.1]” with the “risk scenario” being:

“[The defendant] has consistently reported that insults against Islam or perceived attacks on Islamic values act as major emotional triggers. Such events or personal confrontations could provoke him into committing a violent retaliatory or reactive act, framed ideologically as a defence of his faith and of Islam and of perceived religious obligation and principles. This behaviour would be most consistent with his violent capabilities and risk profile.

Another possible but less likely scenario is being susceptible to an influential figure who proselytises or incites the use of religiously motivated violence or encourages a low-sophistication solo actor attack.”

2. a “Moderate to High” risk of possessing things connected with terrorist acts “S 101.4” with the risk scenario being:

“Given [the defendant’s] history and vulnerability to preoccupation with fixed interest, there is a risk that without supervision, he will seek to possess or disseminate/share ISIS propaganda materials, martyrdom videos, extremist manifestoes, or other materials intended to glorify, inspire or prepare for Jihad as to violence.”

3. a “Moderate” risk of membership of a terrorist organisation “S 102.3”with the risk scenario being:

“There remains a risk that [the defendant], with ongoing isolation and emotional instability, could connect with extremist peers through a reliance on a virtual community or seek allegiances to ISIS through more formal online networks. Alternatively, he may present with sustained ideological allegiances to ISIS through online expressions (social media posts, consumption of extremist materials, symbolic acts like using ISIS insignia) without formal operational recruitment.”

4. a “Moderate” risk of providing support to a terrorist organisation “S102.7” with the risk scenario being:

“Expressing open support for ISIS objectives, glorifying violent Jihad, endorsing martyrdom, or verbally encouraging actions that bolster ISIS’s ideological aims, even without formal affiliation. This may also including urging others to commit violence against perceived enemies of Islam through verbal encouragement or ideological rhetoric consistent with ISIS doctrine.”

109. Ms Kocak also provided answers to other questions asked of her including what treatment the applicant may require and what conditions were appropriate in any supervision order. In that latter regard, it was said:

“132. Finally, [the defendant’s] case management approach and ESO conditions necessitates careful consideration of his neurodivergent profile, particularly traits consistent with ASD. … Staff involved in his supervision and ongoing conditions or restrictions should be informed and cognisant of his neurodiverse needs, ensuring that interventions are tailored to his unique profile i.e.; the demands of managing strict scheduling present as a source of psychological decompensation, and are not likely to be reducing his risk of reactive violence in any meaningful way…”.

Dr Sweller’s report dated 8 April 2025

110. Dr Sweller, a registered psychologist, was asked to prepare a risk assessment report for the purposes of s 23(3)(b) of the THRO Act and did so. It was the State’s case, however, that when requested to consider additional documentation and prepare a supplementary report, leave prevented her doing so. In these circumstances the State sought to rely on Ms Kocak’s report rather than Dr Swellers’. Nonetheless, Dr Sweller’s report did meet the description in s 23(3)(b) and formed part of the supporting documentation that I am required to consider.

111. Once again, the defendant did not consent to participate in any assessment by Dr Sweller. Accordingly, her opinions were based solely on the material in the documentary brief provided to her. Dr Sweller noted the defendant’s background and circumstances, in particular his rigid belief system and interest in Islam which provided him with concrete, black-and-white rules, predictability, a sense of purpose and belonging with the in-group as well as religious and moral superiority and/or obligation. She was of the opinion that this and the fact that he appeared to be particularly drawn to the online context may have been due to his social difficulties as a function of his Autism Spectrum Disorder.

112. Dr Sweller also noted limitations on the use of tools such as VERA – 2R which she noted had been identified as having “weak theoretical support” and to “lack a strong theoretical and empirical foundation”. In her view TRAP-18 had been the subject of more peer-reviewed research and there was encouraging empirical evidence for it but it was noted that the empirical research had mostly been conducted by the author of the tool and there was limited evidence to support the relevance of the indicators for Australian samples. In the context of considering VERA – 2R, Dr Sweller observed:

“whilst at times when [the defendant] is emotionally dysregulated, he expresses his views consistent with a rejection of democracy and hostility to national identity; there is no definitive evidence-based research that confirms the presence of these factors being directly relevant to ongoing terrorism risk.”

113. Like Ms Kocak, Dr Sweller noted the fact that some of the defendant’s comments could be seen as “venting” rather than an indication of an intention to engage in terrorist offending. Dr Sweller said:

“At times, [the defendant] appears to become emotionally dysregulated during appointments with his EO, reflected through ‘venting’ of his religious beliefs, and hostile attitudes towards authority and the ESO. However, he has engaged in a pattern in which he contacts his EO after having reflected on his behaviour, rather than avoiding discussion of it. When he has engaged in this venting, he does not appear to have made verbal threats to physically harm others in the context of his religious beliefs.”

114. Dr Sweller noted that in contrast with the needs which Islam meets for the defendant, he likely experiences anxiety whilst on the ESO due to “the inconsistent flexibility of the conditions and rules” and in this way his ASD traits likely exacerbate the challenges implicit in an ESO. Further, in her opinion, it was of relevance that historically, the defendant’s use of violence had been reactive, as opposed to instrumental, and his challenges with emotional regulation appeared to be related to his ASD. When his ASD needs are met, it was her opinion that he has increased capacity to regulate his emotions.

115. Dr Sweller was of the view that there were no warning behaviours that might suggest the defendant was progressing on a pathway to engaging in terrorism and while on the ESO he appears to have worked collaboratively with the services available to him. It was noted that while he has experienced emotional vulnerability that could have led to his perpetration of terrorism related violence, he has not done so. In this context, it was said to be important to note the difference between beliefs and behaviour.

116. In Dr Sweller’s opinion the applicant had demonstrated progress in relation to his insight into his needs and vulnerabilities, had commenced making incremental behavioural changes and, while he maintained his religious beliefs, his support for the use of violence was conditional and he did not present with intent to engage in violence to further a political, religious or ideological cause.

117. In relation to the risk posed by the defendant, Dr Sweller was of the view that the primary risk related to his use of ordinary criminal violence as opposed to terrorism -related violence noting that his dis-regulated expressions of attitudes and beliefs appeared to be “venting” as opposed to expressing his intention to act. In her opinion, this area of risk and need appeared to be within the scope of emotionally reactive violence as opposed to intentional instrumental violence with the aim of furthering an ideological cause.

118. A second category of potential risk scenarios related to the defendant engaging in preaching, which could lead to inciting others to act. Dr Sweller was of the opinion that while this category was more likely to eventuate than directly engaging in a serious terrorism offence, it did not appear that the defendant had the intent to incite others to engage in terrorism related offending. Rather, in her view, his behaviour might be interpreted as inciting others, due to the intensity of the emotional expression of his grievances towards Western democracy. Finally, it was observed that if the defendant’s ASD needs are more consistently met, he will have greater capacity to engage in employment, which may assist with his sense of self, and gaining a sense of meaning and purpose.

119. In relation to the first ESO, Dr Sweller observed that there was no evidence to suggest that the defendant was vulnerable to actively engaging in terrorism activity and during his ESO he has been motivated to engage with CVE intervention services. In addition, it was said that even at times of heightened stress due to perceived injustice while on the ESO when the defendant has expressed his rigid ideological beliefs in an emotionally driven manner, there was no evidence to suggest that he engaged in behaviour that reflected a progression on a pathway to terrorism. Rather, after expressing his emotional response, it was said that he tended to calm down and engage appropriately with those in authority.

120. Dr Sweller was of the opinion that if the defendant were to be subject to a further ESO, it could lead to negative outcomes including: increased hostility to those in authority, reinforcement and escalation of his paranoid thoughts and sense of grievance/injustice/persecution; difficulty for him to further develop his sense of self and identity; creating further anxiety around managing the ESO and conditions; further rigidity in his attitudes and beliefs; and ongoing feelings of lack of control over his life. On the other hand, Dr Sweller recognised that a further ESO could lead to positive outcomes such as: continued access to professional support; assistance with navigating employment services and developing skills to manage employment; support in managing family relations; and monitoring of associates and potential assistance for developing prosocial peer networks.

121. In relation to potential positive outcomes, it was noted, however, that these positive factors were not directly related to risk management for serious terrorism activity. Rather it was said they were related to the defendant’s ongoing vulnerabilities with respect to general criminality, and antisocial lifestyle, and his ASD traits. Dr Sweller continued:

“[w]hilst he maintains his ideology, there are no indicators that suggest he is at an ongoing/increased risk of engaging in behaviour relevant to terrorism that cannot be managed through engagement with community-based services (e.g., ESP, culturally sensitive private psychologist, OT).”

122. As to quantitative risk assessments, Dr Sweller stated:

“due to the limitations of risk assessment within the terrorism context, as described in this report, it is not possible to provide a valid and reliable quantitative judgment about the ‘likelihood’ of [the defendant] committing a serious terrorism offence”.

Ms Lily Fewster and Mr John Banton’s report dated 5 May 2025

123. Ms Fewster and Mr Banton’s report is entitled “Reintegration Management Report” and is said to detail the extent to which the defendant can reasonably and practically be managed in the community by Corrective Services NSW. It does not purport to provide an assessment of the risk posed by the defendant if he were not the subject of an ESO in the community, although the risk assessments carried out by others are referred to and relied upon. Based on those risk assessments, the defendant’s behaviour in custody and his response to Community Corrections supervision, the writers of the report provide a reintegration management plan with recommended conditions to support his reintegration, if an ESO is imposed.

124. For the purposes of the preliminary hearing and if the court determined that an ISO was appropriate, the defendant’s position in relation to the conditions that should be imposed under an ISO was that the only condition which was opposed was the condition which required the defendant to provide a schedule of movements. The opinion expressed in Ms Fewster and Mr Banton’s report is that a weekly schedule of movements is necessary “to assist [the defendant’s] reintegration into the community and to enhance community safety”. This is said to be because it allows and enforcement officer to undertake a risk appraisal of the defendant’s proposed locations and activities in advance, to prevent him from entering situations that may exacerbate risk factors. It is also said to be a tool that promotes discussion around engaging in prosocial activities and promotes reintegration by providing structure and routine focused on prosocial activities.

Detective Senior Constable Jimmy Wang’s report dated 14 May 2025

125. Detective Senior Constable Wang’s report notes that the defendant has been generally compliant with the conditions imposed upon him by the first ESO, other than the incident which took place in July 2023 at the defendant’s workplace. Furthermore, like Ms Fewster and Mr Banton’s report, DSC Wang’s report is primarily concerned with the conditions which might be imposed as part of an ISO or ESO. For the reasons already given, it is only necessary to focus upon the scheduling condition.

126. In his report, the Detective Senior Constable states that he is of the view that if the defendant is deemed to pose an unacceptable risk of committing a serious terrorism offence, a clearly defined schedule of movements is required to ensure the safety and protection of the community. In this regard it is noted that, in the absence of a schedule of movements, those responsible for enforcement of the ISO or ESO will have no knowledge of where and when the defendant is going, the routes he will take, who the defendant is with or the modes of transport to be taken. Consequently, there will be no opportunity to assess the risk of any of the defendant’s movements. In addition, it is said that without the knowledge and approval of a schedule of movements, it becomes more difficult for the HRTOU enforcement officers to encourage rehabilitation and minimise the risk of committing a serious terrorism offence.

Other matters under s 25(3)

127. The other matters under s 25(3) of the THRO Act which are relevant have been referred to above in this judgment and have been taken into account. In particular, Dr Shanahan’s reports provided essential information concerning the nature, extent and significance of the defendant’s beliefs, conduct and interests. In addition, in the case of material relating to the period before the making of the first ESO, this was also taken into account by N Adams J and I adopt her Honour’s analysis and conclusions in that regard.

Assessment of risk posed by the defendant

128. In considering whether, on the assumption that the matters alleged in the “supporting documentation” are proved, it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order, I have taken into account all of the material which amounts to “matters alleged” in the relevant documentation, including in particular but not exclusively what is referred to or summarised above.

129. The evidence of Dr Shanahan concerning the significance from a terrorism perspective of the defendant’s conduct, words, beliefs and interests provided, in my view, particularly insightful “matters alleged” concerning the risk posed by the defendant. The present case presents, however, a significant difficulty since the risk assessments and conclusions expressed by Ms Kocak and by Dr Sweller are, to a certain extent, inconsistent, notwithstanding that they are based largely on the same underlying matters alleged in the supporting material. In substance and at a high level of generality, Ms Kocak appears to be of the opinion that based on the matters alleged in the supporting documentation the defendant poses a moderate to high or moderate risk of engaging in activities which might amount to the serious terrorism offences which have been referred to in in [108] above. On a similar level of generality and in substance, Dr Sweller appears to be of the view based on the same material that the only significant risk posed by the defendant falls within the scope of emotionally reactive violence as opposed to intentional instrumental violence with the aim of furthering an ideological cause by means of a serious terrorism offence.

130. It is well established that the Court, in undertaking the exercise required for the purpose of ss 24(5) and 27(d), is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is the Court’s role to attempt to predict what the ultimate finding as to the risk posed by the defendant might be at any final hearing.

131. In the present case, as was appropriate on the hearing of an application for interim relief under the THRO Act, neither Ms Kocak nor Dr Sweller nor any other witness was cross-examined. Thus, there was no opportunity for either party to expose or challenge the bases for or contents of their opinions and the robustness of their risk assessments and other opinions. This leaves the Court in a difficult position if it attempts to discern which opinions should be accepted or rejected.

132. Furthermore, there is a fundamental difficulty with the reports and opinions of both Ms Kocak and Dr Sweller. Neither of them had the benefit of an interview with the defendant, as a result of the defendant’s refusal to make himself available for this purpose. If examination orders are made under s 24(5), the psychiatrists or psychologists who are to examine and provide reports will have the benefit of interviewing the defendant and the Court determining the application for final relief will be properly, or at least better, informed than at present.

133. Thus, while there might be reasons why Ms Kocak’s opinions as to the risk posed by the defendant and the scenarios she identified should not be accepted, it does not appear to me that I should reject her opinions as to nature and extent of the risk posed by the defendant for at least three reasons. First, Ms Kocak’s opinions as to the risk posed by the defendant are matters alleged in the supporting documentation which are to be assumed to be proved for the purposes of determining whether the examination orders are to made and whether an ISO is to be imposed.

134. Secondly, her evidence in this regard has not been the subject of cross-examination, given the nature of these proceedings for interim relief and nor has the evidence of Dr Sweller. In those circumstances, it is not possible to make a properly informed assessment of Ms Kocak’s opinions and whether Dr Sweller’s evidence substantially undermines the opinions expressed by Ms Kocak.

135. Thirdly, Dr Sweller’s relevant opinions depend to a significant extent on the absence of evidence of intention on the defendant’s part to engage in serious terrorism related offending. It is important to bear in mind that the absence of evidence of intention is not the same as evidence of absence of intention. A better informed opinion as to whether the defendant does or does not have any intention actually to engage in serious terrorism offending, despite his threats and outbursts from time to time, may well be possible if he is examined as a result of an order under s 24(5) but it is not reasonably possible on the material presently available.

136. While the question is finely balanced given the inconsistent nature of some of the matters alleged in the supporting documentation, based on the matters alleged as a whole but in particular Dr Shanahan’s evidence as to the significance of the material accessed by the defendant and his conduct, words and views and Ms Kocak’s opinions as to risk, on the assumption that these matters are proved, I find that it is reasonably open for the Court to be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order. Accordingly, albeit it with some hesitation, I accept that the making of an ESO would be justified.

137. For these reasons, the requirement in s 24(5) of the THRO has been met and I am required to make orders for the examination of the defendant and the provision of reports under that subsection.

Should an ISO be made?

138. Similarly, the requirements in s 27(a) and (b) have also been met and consequently the Court’s power to order an ISO is engaged. As noted above, the Court has a discretion whether to make such an order.

139. On behalf of the offender, it was submitted that the discretion should be exercised against the making of an ISO given the lack of clarity on the evidence of the risk posed by the defendant in light of various factors including: the apparent inconsistencies in the opinions of Ms Kocak and Dr Sweller and the lack of clarity as to the nature and extent of the risk posed by the defendant; the limitations on the usefulness or reliability of the risk assessment tools, especially VERA-2R; the defendant’s positive engagement with supervision under the first ESO and his increased compliance, expressed disillusionment with violence and an emergent curiosity about understanding his neurodivergence; the potential negative consequences for the defendant that might flow from imposing a further ISO given his autism and other mental health issues; and, the fact that the defendant was unlikely to have the ability to plan or implement a serious terrorism offence as opposed to engaging in reactive violent offending when emotionally vulnerable.

140. As against those matters, the potential seriousness of any consequences that might result from the defendant committing a serious terrorism offence, his past conduct, threats, interests and words which on Dr Shanahan’s evidence were clearly influenced by ideologies and organisations promoting terrorism, his ongoing commitment to religious approaches which support or are consistent with terrorism or ideologically motivated violence, and the uncertainty as to whether he does, or is likely to, have an intention of actually engaging in serious terrorism offending, are significant factors weighing in favour of imposing an ISO. Furthermore, an ISO would only be for a relatively short time, compared to an ESO.

141. I also take into account that it is well established that on an interim application such as this, whether under the THRO Act or cognate legislate, it is appropriate to have regard to the objects of the legislation and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [64] (Wright J); State of New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191 at [25] (McNaughton J). The primary object of the THRO Act involves ensuring the safety and protection of the community, while a secondary objective is to promote the rehabilitation of the defendant. Risk avoidance weighs significantly in favour of making the ISO, especially as the ISO is of relatively limited duration. If the risk avoidance approach is adopted, both the safety and protection of the community and the rehabilitation of the defendant are, in my view, better served by imposing an ISO than permitting the defendant to be in the community unsupervised.

142. Finally, the potentially negative impact of an ISO on the defendant to which Dr Sweller referred can, in my view, be mitigated to a certain extent by excluding from the conditions to be imposed as part of the ISO a condition requiring the provision of a schedule of movements.

143. For these reasons, I am of the view that an ISO should be made.

Conditions of the ISO

144. As noted above, the defendant submitted that if an ISO were to be imposed the only condition which was opposed was the condition requiring the provision of a schedule of movements. I accept that a scheduling condition should not be imposed in the ISO in the present case. In that regard, Ms Kocak’s opinion, at par 132 of her report, supported this approach. In that paragraph she said:

“132. … Staff involved in his supervision and ongoing conditions or restrictions should be informed and cognisant of his neurodiverse needs, ensuring that interventions are tailored to his unique profile i.e.; the demands of managing strict scheduling present as a source of psychological decompensation, and are not likely to be reducing his risk of reactive violence in any meaningful way…”

145. In addition, the potential positive outcomes from the defendant being subject to supervision identified by Dr Sweller in her report at par 150 do not depend on his being required to provide a schedule of movements. Indeed such a requirement may give rise to the negative outcomes, identified by Dr Sweller at par 149 of her report, including increased hostility to those in authority, escalation of paranoid thoughts and a sense of grievance, injustice and persecution as well as anxiety and a feeling of lack of control. While the opinions of Ms Fewster and Detective Senior Constable Wang on the benefits of scheduling should be accepted as generally correct, they do not in my view take into account the considerations specific to the defendant referred to by Ms Kocak and Dr Sweller. In those circumstances, I prefer the opinions of the two psychologists in this regard.

146. I am confirmed in my view by the evidence of the defendant’s conscientious compliance in the past with what he perceived to be the requirements of scheduling including telephoning his EO to seek permission to take his bins out in order for them to be collected and the EO dispensing with any such requirement.

147. Finally, not imposing the condition requiring the provision of a schedule of movements provides the defendant with an opportunity during the ISO to demonstrate his ability to comply with a less restrictive form of supervision which may inform any subsequent determination in relation to whether an ESO should be made or any conditions that might be imposed.

148. Accordingly, I propose to order for the purposes of s 29(1) and (1A) of the THRO Act that the defendant is to comply with the conditions as set out in Schedule A to the summons filed on 16 May 2025 for the duration of the ISO with the words “(including in respect of a schedule of movements)” in condition 1 deleted, to the intent that the reasonable directions referred to in condition 1 would not include a direction in respect of a providing a schedule of movements. The conditions as so amended will be a schedule to the orders.

Orders

149. For these reasons, the orders of the Court are:

1. Under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW):

1. a qualified psychiatrist and a registered psychologist are to be appointed to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and furnish reports to the Supreme Court on the results of those examinations within 3 weeks of the date fixed for the examination; and

2. the defendant is directed to attend those examinations.

2. Under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is subject to an Interim Supervision Order (ISO) commencing from the expiration of the defendant’s current Extended Supervision Order on 15 August 2025 for a period of 28 days.

3. Under s 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is to comply with the conditions set out in the Schedule to these orders.

4. Access to the Court’s file in this proceeding may be permitted to a non-party only with the leave of a judge of the Court and after prior notice to the parties so as to allow them an opportunity to be heard prior to access being granted.

**********

SCHEDULE TO THE ORDERS MADE ON 14 AUGUST 2025 (25.3 KB, docx)

Amendments

14 August 2025 - Schedule to Orders made inserted as attachment

15 August 2025 - Coversheet amended

Decision last updated: 15 August 2025