State of New South Wales v Naaman (Final)

[2018] NSWSC 1635

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Naaman (Final) [2018] NSWSC 1635
Hearing dates:	9-10 October 2018
Date of orders:	31 October 2018
Decision date:	31 October 2018
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	(1) The summons is dismissed. (2) The interim supervision order made by Campbell J on 2 August 2018 and last extended by Bellew J on 25 September 2018 is discharged forthwith.
Catchwords:	HIGH RISK OFFENDER – terrorism activity offender – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 (NSW), Pt 2 – offender on remand for breaches of interim supervision order – offender suffering from chronic schizophrenia – statements by offender in custody expressing intolerance of non-Muslims and wish to travel to fight in Syria – criminal record of repeated dishonesty and property offences and non-compliance with authorities – history of violence against law enforcement officers – whether offender engaged in conduct “involving advocating support for any terrorist acts” – whether “unacceptable risk of committing a serious terrorism offence” if released – Terrorism (High Risk Offenders) Act, ss 10(c)(i), 20(d) – summons dismissed and interim supervision order discharged
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code (Cth) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Ceissman [2018] NSWSC 508 State of New South Wales v Naaman [2018] NSWSC 1328 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Texts Cited:	N/A
Category:	Principal judgment
Parties:	State of New South Wales (plaintiff) Mohamed Naaman (defendant) Attorney General of New South Wales (third-party applicant) Commissioner of Police (third-party applicant)
Representation:	Counsel: Mr J Agius SC & Mr C McGorey (plaintiff) Mr T Edwards (defendant) Mr Richard Lee (third-party applicants)   Solicitors: Crown Solicitor’s Office (NSW) (plaintiff, third-party applicants) Legal Aid NSW (defendant)
File Number(s):	2018/235779
Publication restriction:	No

Judgment

1. Before the Court for final determination is a summons in which the plaintiff claims an order for extended supervision of the defendant pursuant to s 20 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). The defendant was serving a term of imprisonment up to 2 August 2018. The summons was filed on 1 August 2018 and an interim supervision order pursuant to s 27 of the Act was made by Campbell J on 2 August, immediately before the defendant’s release: State of New South Wales v Naaman [2018] NSWSC 1328.

2. The interim order was in force for 28 days. On 28 August 2018 it was renewed by Bellew J for a further period of 28 days, commencing 30 August 2018 and expiring 27 September 2018. On 25 September 2018 Bellew J ordered a second extension to commence on 27 September 2018 and to expire on 25 October 2018. By force of s 28(7) of the Act no further extension of the interim supervision order can be made.

3. Police allege the defendant breached the interim supervision order in various respects on 26 and 28 September 2018. The following breaches are alleged:

1. On 26 September 2018 the defendant paid $1800 cash for a motor vehicle in contravention of condition 22 of the order (that he not transfer money or money’s worth over the value of $500 without the permission of a Corrective Services enforcement officer).

2. On 26 September 2018 he failed to advise his enforcement officer of the particulars of a motor vehicle which he intended to drive, contrary to condition 36.

3. On 28 September 2018 he deviated from an approved schedule of movements, contrary to condition 7.

4. On 28 September 2018 he failed to answer truthfully his enforcement officer’s question as to whether a change in his movements had been approved, contrary to condition 8.

5. On 28 September 2018 he again deviated from his approved schedule of movements.

4. On 29 September 2018 the defendant was arrested and charged under s 30 of the Terrorism (High Risk Offenders) Act with each of the above breaches. He was refused bail and he has been in custody since. The operation of the interim supervision order has been suspended during his remand, by operation of s 28(6) of the Act. Accordingly there remain 25 days of the last extension of the interim order, made by Bellew J as referred to at [2]. The operation of the order for the balance of 25 days will be reactivated upon the defendant’s release from his present custody, whether pursuant to a grant of bail or following final disposition of the charges that have been laid under s 30 of the Act.

5. I will consider the issues which arise on the plaintiff’s application for extended supervision of the defendant, under the following headings:

1. Prerequisites 1 and 2 for an extended supervision order: [6].

2. Prerequisite 3: a “convicted NSW terrorism activity offender”: [7]-[13].

3. Prerequisite 4: the “unacceptable risk” test in s 20(d): [14]-[22].

4. Defendant’s personal and psychiatric antecedents: [23]-[29].

5. Defendant’s criminal record and custodial history: [30]-[39].

6. Defendant’s capacity for violence and religious hostility: [40]-[67].

7. Defendant’s expressions of support for terrorism: [68]-[71].

8. Defendant is a “terrorism activity offender” (pre-requisite 3): [72]-[79].

9. Expert assessments of defendant’s propensities: [80]-[97].

10. Risk of terrorism offending not unacceptable (pre-requisite 4): [98]-[100].

11. The defendant’s desire to leave Australia permanently: [101].

12. Orders: [102].

Prerequisites 1 and 2 for an extended supervision order

6. Under s 20 the first prerequisite for making an extended supervision order is that the defendant should have been in custody or under supervision pursuant to a sentence of imprisonment, supervision order or detention order at the time the summons was filed: see s 20(a). In the circumstances described above that requirement is satisfied in that he was in custody on 1 August 2018. Secondly, the application must be made in accordance with Pt 2 of the Act. The present application is so made.

Prerequisite 3: a “convicted NSW terrorism activity offender”

7. The third prerequisite, under s 20(c) of the Act, is that the defendant against whom a supervision order is sought must be within one of three prescribed categories. The category upon which the plaintiff relies in this case is that set out in subpar (iii) of par (c), as follows:

(iii) a convicted NSW terrorism activity offender.

8. Under s 10 of the Act a “convicted NSW terrorism activity offender” must, firstly, be an “eligible offender”, that is, as provided for in s 7, a person of at least 18 years who is:

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

The defendant falls within that definition. I will refer to his criminal history in more detail later in these reasons. At 2 August 2018 the term of imprisonment he was serving had been imposed for an indictable offence against a law of New South Wales.

9. The definition of “convicted NSW terrorism activity offender” in s 10 requires that the eligible offender should fulfil at least one of three alternative criteria found in subs (1)(a)-(c). Criterion (c) in turn may be satisfied by either of two alternatives specified in subpars (i) and (ii). The plaintiff relies only upon (c)(i) so that the part of the definition relevant for the present case is as follows:

10 Convicted NSW terrorism activity offender

(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender:

…

(c) the offender:

(i) has made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts.

(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

10. The threshold issue on this application and a matter which has been strongly contested by the defendant is whether or not, in terms of s 10 (1)(c)(i), he “has made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts”. “Terrorist act” as defined in s 4 has the same meaning as in Pt 5.3 of the Criminal Code (Cth). The definition in that legislation is convoluted but may be summarised as involving an action done, or a threat of action made:

1. where the action would or will cause physical harm to or death of a person, endanger the life of a person (other than the person taking the action), create serious risk to the health or safety of the public or a section of the public, cause serious damage to property or seriously interfere with or disrupt or destroy an electronic system such as an information, telecommunications or transport system;

2. with the intention of advancing a political, religious or ideological cause and

3. with the intention of:

1. 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

2. intimidating the public or a section of the public.

11. In the above summary I have omitted reference to s 100.1(3) of the Criminal Code, which creates an exemption from the definition of a “terrorist act” for “advocacy, protest, dissent or industrial action”. That exemption is essentially redundant. It is not engaged if the relevant action is intended to cause physical harm. Therefore, if the aspect of the definition referred to at [10(1)] above is satisfied, the exemption is never reached.

12. The plaintiff relies upon statements made by the defendant whilst in custody in [redacted] 2016 to the effect that upon release he wished to go to Syria to “fight against the Syrian government [and] against Hezbollah”. The defendant has repeatedly professed Sunni Muslim belief. It is common knowledge that the Syrian government was in 2016 and is to this day led by Bashar al-Assad, an Alawite. The Alawites are an ethno-religious group aligned with Shia Islam. It is equally common knowledge that Hezbollah is a combatant organisation of Shia Muslims sponsored and supported by Iran, a Shia Muslim theocracy.

13. In this geopolitical context the plaintiff submits that the defendant’s expression of a wish to fight the Syrian government and Hezbollah amounts to “advocating support for engaging in any terrorist acts”: see s 10(1)(c)(i) of the Act. With reference to the definition of a terrorist act in Pt 5.3 of the Criminal Code as summarised at [10] above, it is submitted by the plaintiff that fighting the Syrian government as allegedly advocated by the defendant would involve (1) killing or at least doing serious harm to personnel of that government, (2) with the intention of advancing the cause of Sunni Islam and (3) with the further intention of coercing by intimidation the government of a foreign country (Syria).

Prerequisite 4: the “unacceptable risk” test in s 20(d)

14. The fourth prerequisite for making an extended supervision order is stipulated in s 20(d), being that:

(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.

For the purposes of this test, “serious terrorism offence” is defined in s 4 of the Act as:

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

15. Offences within that definition include those created by s 101 of the Criminal Code, including the commission of a terrorist act (as described at [10] above), providing or receiving training in preparation for a terrorist act, having a thing or document in connection with preparation for a terrorist act, carrying out acts in preparation for or planning of a terrorist act. There are numerous other offences which satisfy the definition, concerned with directing the affairs of, being a member of or recruiting for a terrorist organisation. There are also serious terrorism offences concerned with financing terrorist acts.

16. I interpret the Terrorism (High Risk Offenders) Act as not requiring the plaintiff to show that the defendant poses an unacceptable risk of committing a serious terrorism offence identical with or of the same kind as the terrorist acts for which he may have advocated support in any statements relied upon by the plaintiff as satisfying s 10(1)(c)(i). The advocacy referred to in s 10(1)(c)(i) will be sufficient if it is in respect of “any terrorist acts”, not necessarily “serious” ones (carrying a maximum term of imprisonment of 7 years), as referred to in s 20(d). There is a divergence of language between these two provisions and they are directed to different objectives. Section 10(1)(c)(i) specifies the kind of advocacy for terrorism which may engage the Act by means of a wide and inclusive reference to support for “any terrorist acts” whereas s 20(d) narrows the cases in which an extended supervision order may actually be made to those involving unacceptable risk of “a serious terrorism offence”.

17. In determining what would constitute an unacceptable risk regard must be had to both the degree of likelihood of the risk being realised and the extent of harm which might result from that realisation: State of New South Wales v Pacey [2015] NSWSC 1983; State of New South Wales v Ceissman [2018] NSWSC 508. Section 25 contains the following provisions with respect to considerations relevant to the evaluative task of determining whether the defendant poses the unacceptable risk referred to in s 20(d):

(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

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

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

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

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

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

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

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

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

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

(i)   on release on parole, or

(ii)   subject to a control order, or

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

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

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

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

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

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

18. The test in s 20(d) follows the same formula as that in ss 5B(d) and 5C(d) of the Crimes (High Risk Offenders) Act 2006 (NSW), which relate to the making of extended supervision orders and continuing detention orders in respect of sex offenders and violent offenders. It is the same test as formerly appeared in the now-repealed s 5E(2) of the Crimes (High Risk Offenders) Act, which was considered in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. In that case Beazley P (with whom Gleeson JA agreed) said (at [50]):

[B]y reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

19. At [51] her Honour said:

A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

Her Honour found the context in s 3 of the Crimes (High Risk Offenders) Act where the primary object of the Act was said to be “to ensure the safety and protection of the community”. Further context was found in s 5E(2) itself which made clear that the question whether there existed an “unacceptable risk” related to the risk of commission of a serious violence offence, with obvious implications for the safety and protection of the community.

20. The objects of the Terrorism (High Risk Offenders) Act are stated in s 3, as follows:

3 Objects of Act

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

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

21. Thus, relevant parts of the Terrorism (High Risk Offenders) Act are indistinguishable from the legislation considered in Lynn v State of New South Wales. Section 20(d) of the Act should be applied according to Beazley P’s view (at [59]-[60]) that the test of whether there exists an “unacceptable risk” of the defendant committing an offence of the type to which the legislation is directed turns upon whether there is a risk:

present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made.

22. These words were quoted by the learned President from the judgment of R A Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118. Beazley P elaborated them (at [61]) as follows:

[T]he word “ensure” itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.

Defendant’s personal and psychiatric antecedents

23. Pursuant to s 24 of the Act orders were made on 2 August 2018 for the defendant to be examined by Dr Kerri Eagle, forensic psychiatrist, and Dr Susan Pulman, forensic psychologist and clinical neuropsychologist. Reports were furnished dated, respectively, 10 September 2018 and 17 September 2018. From the history provided by the defendant to those specialists and from earlier records, the defendant’s personal and psychiatric antecedents have been ascertained.

24. The defendant was born 7 July 1975 and is now 43 years old. He was born in Syria to a Lebanese father and a Syrian mother. He is the oldest of eight children. His family migrated to Australia when he was about 3 years old. He claims that he was physically abused by his mother as a child and that the Department of Community Services removed him temporarily from her care and placed him with his grandparents. At the age of 10 he says he was sent back to Lebanon and whilst there was “molested” by an older male. After he returned to Australia this experience continued to affect him psychologically.

25. At the age of 12 the defendant commenced to use illicit drugs, at first cannabis (in significant quantities) then from the age of 14 cocaine (which he smoked) and heroine (injected). He used ecstasy during his adolescence and engaged in binge drinking at around the age of 17. He has never undertaken a drug rehabilitation program and has continued to use drugs throughout his adult life, including, on his own acknowledgement, methylamphetamine from 2010.

26. From the age of 14 the defendant commenced to hear voices. He told Dr Pulman that he was diagnosed with schizophrenia in his early teens but there is sparse documentation of psychiatric examination or treatment from his early years. In January 2009, at age 33, Dr Samuels in Justice Health concluded that he had a chronic psychotic illness which may have been precipitated by drug abuse and that he exhibited signs of chronic paranoid schizophrenia. He has received anti-psychotic medication for his psychiatric disorder in the prison system, with which he has been engaged for most of his adult life. When at liberty he has frequently not followed medication regimes and has relapsed into psychosis.

27. Dr Eagle diagnosed the defendant as suffering from chronic schizophrenia at the date of her report. Intermittent reports in the years between 2009 and the present have been substantially consistent with this view. Dr Eagle describes the defendant’s relapses of psychosis, of which he had a number according to the available records, as :

characterised by persecutory delusions and auditory hallucinations. His delusions have involved persecution by police and corrective services officers (including that his food was being poisoned).

28. The defendant has been assessed for cognitive ability on more than one occasion over the years. In his early teens assessments suggested that his functioning was no higher than in the 23rd percentile. A 2010 full-scale IQ measurement of 89% was obtained, placing him in the low average range.

29. In 1995 the defendant suffered a savage assault by other inmates which resulted in him receiving serious burn injuries. The defendant has self-harmed on some occasions, including swallowing a razor blade in 2000 and attempting to hang himself in 2001, both events whilst in custody. He claims to have been held prisoner in a gaol in Syria for some months in 2001 and to have been physically mistreated there. In Sydney in September 2011 he was shot in the back during an altercation when he was attempting to recover a claimed debt. He says he continues to suffer pain and restriction of movement as a result of a projectile lodged near his spine, however observations of him in prison in Queensland in January 2013 give cause for real doubt about the extent of any continuing symptoms from the shooting. In July 2018 he was subjected to a group assault in prison.

Defendant’s criminal record and custodial history

30. Between the ages of 12 and 18 years the defendant committed numerous offences of dishonesty (stealing, breaking and entering, forging and uttering, offering a bribe) for which the Children’s Court initially imposed probation orders. His offending continued after the age of 16 and punishments escalated to control orders, several of which were imposed, each for a period of some months.

31. From the age of 18 his offending by way of larcenies, breaking and entering and similar offences continued unabated. He also began to commit motor vehicle offences, including taking and driving vehicles without consent. He committed a number of assaults on police incidental to his being taken into custody for other offences. His first sentence of full-time custody as an adult was imposed in 1994 the age of 19 for breaking and entering. From that time his life has followed an unvarying pattern. He has committed offences, mostly of breaking and entering, stealing and assaulting or resisting police. He has then been sentenced to a term of imprisonment. Upon release, either on parole or having served his full term, the defendant has after a few months re-offended and again been returned to prison.

32. In his early days, when he was 19 or 20, the sentences were of 3, 7 and then 10 months with 2 to 5 months of liberty in between. Then in January 1997 at age 21 he was sentenced to 5 years with a non-parole period of 3 years for robbery, breaking and entering and stealing from the person. He was released on parole on 21 January 2000 but that was revoked after a year.  He was returned to custody on 20 July 2001 and served nearly another year to 2 July 2002. On completion of the head sentence the defendant was released but was only at liberty for 4 months until November 2002 when, at the age of 27, he was sentenced to 3 years and 6 months with a non-parole period of 1 year and 9 months. This was again for offences of the same kind but with the addition of possessing an unauthorised firearm and assaulting police. During this period in custody an additional fixed sentence of 4 months was added to the non-parole period for an assault on a prison officer. Parole was never granted and the full sentence of 3 years and 6 months was served out, to 24 May 2006.

33. The pattern continued through the defendant’s 30s, in the period 2006-2012. He spent most of those years in prison. Some of his offences of breaking and entering were committed in Queensland during brief periods of liberty following completion of New South Wales sentences. He has served at least two terms in Queensland.

34. On 13 August 2013 the defendant committed another offence of breaking and entering, at Bankstown, and at the time of his arrest for that offence the same day he threatened police and resisted them. He was arrested at his parents’ home. When approached by police in the kitchen he brandished a skewer and a kitchen knife. He surrendered when police threatened to subdue him with a Taser. He was sentenced for the break and enter and for the assault on police by King DCJ in the District Court at Sydney, to 3 years and 3 months imprisonment commencing 13 August 2013 and expiring 12 November 2016, with a non-parole period of 2 years and 5 months.

35. Whilst serving this sentence, on 31 January 2015 the defendant slashed at a Corrective Services officer with a razor. For this he was sentenced to 12 months imprisonment with a non-parole period of 9 months, commencing on 12 January 2016, the end date of his non-parole period for the offences of 13 August 2013. The defendant was released on 12 November 2016, that date being the expiry of the head sentence for the break and enter and assault of 13 August 2013. Upon release he was subject to parole under his sentence for the attack on the Corrective Services Officer with the razor. In breach of the parole he departed overseas on 6 December 2016. Parole was revoked on 11 January 2017. The offender returned from overseas on 25 May 2018 through Brisbane Airport. On 28 June 2018 he was arrested in Sydney and returned to custody to serve out the balance of the parole order, for 1 month and 6 days. That period expired on 2 August 2018.

36. The defendant has been markedly non-compliant and unmanageable as an inmate in the New South Wales prison system. His custodial record includes numerous instances of abusive and/or threatening language, assaults, failing to comply with prison routine and directions, refusing to supply urine samples and possessing prohibited items (including weapons). His schizophrenia has evidently been a cause of his behaviour, exacerbated by frequent non-compliance with prescribed psychiatric medication regimes. Behavioural problems have restricted Corrective Services’ placement options for him and necessitated restrictions on associations. The defendant has been unresponsive to counselling in custody for control of anger and of contentious behaviour.

37. The defendant’s non-compliance has been similarly persistent in his dealings with Community Corrections during periods on parole. When subject to parole orders he has repeatedly failed to attend appointments, refused to engage in programs and interventions (including psychiatric care) and disregarded conditions forbidding use of illicit drugs. On several occasions he has absconded in contravention of his parole orders, either to Queensland or, on two occasions, overseas. Records of Queensland Corrective Services show that when he has absconded to that State he has offended again, been imprisoned and, when released on parole, has likewise failed to comply with conditions. It is fair to say that the defendant has proved himself, over decades, incapable of compliance with the law and with reasonable directions from authorities.

38. New South Wales Community Corrections prepared a report on 16 December 2016 concerning the brief period in which the defendant was under supervision on parole from 12 November 2016 until he departed for Lebanon, in contravention of his parole conditions on 6 December 2016. The report includes the following:

Given the parolee was only supervised for a short period of time, ie less than a month, his response to supervision is unacceptable. He refused to engage in a mental health assessment or to take his prescribed medication for schizophrenia. On 23 November 2016 the offender stated he was “too busy for parole and it was a waste of his time”.

39. The report went on to state that an indicative saliva drug test gave a positive result for opiates, however this appears likely to have been caused by codeine in a prescribed pain medication which he was using. His doctor had prescribed “numerous medications for pain and schizophrenia” and was very concerned at his non-compliance with the psychiatric treatment regime.

Defendant’s capacity for violence and religious hostility

40. Most instances of violence in the defendant’s record have been directed towards police when being arrested or towards Corrective Services staff when being coerced to comply with prison rules or directions. There is one recorded instance of the defendant threatening violence to an adult female with whom he had an association, in 2012 at age 37 (see [48] below).

41. The unacceptable risk particularised by the plaintiff is that if the defendant is not supervised he will commit a serious terrorism offence wherein the cause intended to be advanced (the second element of a “terrorist act” under Pt 5.3 of the Criminal Code; see [10(2)] above) would be that of Sunni Islam. I will therefore include in my consideration of the defendant’s history of violent outbursts references to occasions upon which he has espoused Islamic beliefs, for such light as this history may shed upon the degree of risk that he may commit a serious terrorism offence: see s 25(3)(j) and (l) of the Act.

42. In December 2001 the defendant displayed a poster of Osama Bin Laden on his cell wall and came into conflict with a Corrective Services officer who required him to remove it. He asserted the officer was “racist”.

43. In September 2002 the defendant was apprehended on the street in Bankstown pushing a shopping trolley containing goods he had just stolen from the home of an elderly couple. When questioned about the goods he became nervous, then aggressive, and attempted to escape. He fought and resisted until he could be handcuffed. He made threats of violence to police throughout the incident.

44. In November 2002 the defendant stole the keys of a tradesman’s vehicle and drove it away. Police who were on patrol in the area were alerted by radio. They observed the vehicle and followed it. The defendant abandoned the stolen vehicle and attempted to decamp on foot, through private properties and over fences. When finally apprehended by one constable the defendant resisted and seized the officer’s service pistol from its holster during an ensuing struggle. The pistol was shaken from the defendant’s grip and slid across the ground. The defendant again attempted to get hold of it and escaped when the officer made recovery of his weapon the priority. The defendant was chased and caught. Stolen property of which he was in possession included valuables he had recently stolen in a handbag snatch.

45. From June to September 2008 the defendant was on parole under supervision of Queensland Corrective Services and was also on bail for outstanding extortion charges in that State. He was required to meet periodically with a parole officer and also to report on bail to police at Upper Mt Gravatt. He was argumentative and aggressive towards his parole officers during interviews, made threats to them and made derogatory references to women.

46. On 27 August 2008 the defendant told his Queensland parole officer he wished to leave Australia and that “he has had enough of it”. He said he “would go to Syria and become a suicide bomber, then stated he was joking”. He said he intended to fast during September 2008 which he asserted would be his observance of Ramadan. On 10 September 2008 he made threats to kill police officers in connection with the Queensland charges outstanding against him, then abandoned his approved address, failed to report further under parole and drove to New South Wales.

47. By 13 September 2008 the defendant was back in Sydney. On that date he broke into a residential property in Bankstown and stole valuables. On the basis of a description provided by the victims and the Queensland registration number of the motor vehicle in which he left the scene of this crime, police approached him two days later at a petrol station. When informed he was under arrest the defendant became aggressive, abused the police officers as “pigs”, struggled with them, damaged the caged motor vehicle into which he was placed. He had to be subdued by three officers. He threatened to kill them.

48. During the first half of 2012 the defendant became acquainted with an adult female in the Bankstown area. In late August 2012 he sent her a number of text messages threatening to rape her. In another message he said he would slit her throat. Also in late August on one occasion he insisted that she accompany him in his car and then drove her around the streets threatening to assault her and directing her to cease having visitors at her house. Thereafter he attended the victim’s house at all hours of the day and night. When refused admission he banged violently on the door and threatened to smash it.

49. On 9 September 2012 the defendant entered the victim’s home forcibly and assaulted her. She called police who attempted to locate the defendant and spoke to him by phone. Three days later he phoned the victim and threatened to kill her. The defendant was arrested on charges arising out of these events on 10 October 2012, after he had been taken into custody on extradition warrants, for his return to Queensland.

50. In November 2012 on reception at South Queensland Correctional Centre in connection with offences committed in that State the defendant asserted he was the Sergeant at Arms of the Phoenix Outlaw Motorcycle Gang (“OMCG”). This appears to have been mere posturing as Queensland Corrective Services intelligence were unable to identify any such OMCG or to establish that the defendant had ever been Sergeant of Arms of any OMCG. Other intelligence confirmed that he was a member of “Ummah United”, a group of Muslim youths, ex-prisoners and ex-members of OMCGs. He was also at that time a member of “Brothers United”, a gang of Lebanese youths in Logan, Southwest of Brisbane.

51. On 30 January 2013 while the defendant was serving a term of imprisonment in Queensland a telephone conversation with his sister was recorded in which he requested a CD of the Quran being read by Anwar al-Awlaki. He also requested CDs of sermons by al-Awlaki concerning life after death. He stated that al-Awlaki “was killed by the Americans in Yemen last year or the year before”. The conversation continued as follows:

Defendant: If you could send me the stories of the God messengers?

Sister: Are they necessarily to be storied or read by that man Anwar al-Awlaki?

Defendant: No, no any story.

52. Anwar al-Awlaki was a preacher of Sunni Islam. For several years up to September 2011, in numerous sermons and written articles, al-Awlaki urged Muslims to make violent attacks upon the people of Western countries, including civilian populations. He provided scholarly references to the Quran and to the life of the Prophet Muhammad, directed to persuading Muslims that a religious duty is cast upon them to make violent attacks upon all people outside the religion. As the Quran is believed in Islam to consist entirely of words spoken by God himself by way of instruction to the believers (unlike the Bible, a book of human composition), al-Awlaki’s citation of Quranic exhortations to religious violence was powerful propaganda. Al-Awlaki associated himself with al-Qaeda in the Arabian Peninsula. His sermons and writings encouraging Islamic violence were published in a periodical magazine of that organisation entitled “Inspire” and widely disseminated on the Internet in 2010 and 2011. Al-Awlaki was declared a terrorist by the United States of America and was killed by the US Military in Yemen on 30 September 2011.

53. Upon full consideration Queensland Corrective Services assessed the phone conversation between the defendant and his sister in this way:

Interpretation of [the defendant’s] motivation for requesting these materials is most likely based on his need to enhance his spirituality, however of security interest and concern is that he specifically and initially requested religious material by an author who was connected to Islamic extremism. … [He] is an elitist with regard to his cultural and religious beliefs and … these beliefs and ideologies take precedence over everything else whilst in prison. It is also assessed, based on elements of the conversation, that his request for the works of Al-Awlaki was undertaken without malice or sinister intent.

54. This assessment, made on 30 January 2013, also contained the following:

A review of [the defendant’s] custodial behaviour for other radicalised or extremist indicators whilst in prison [has] been uneventful. His behaviour to date [reflects] that he is largely intolerant of others and keeps to himself … He presents as a bombastic, demanding and a belligerent [prisoner]. [That] usually [surfaces] when he is challenged or directed to complete a specific task or instruction. His arrogance must however be viewed with caution and may also reflect his Arab ethnic identity and it would be fair to infer from his reported actions that his values, religious beliefs, philosophies, mannerisms and influences are driven by these conditions.

[H]is argumentative and aggressive behaviour also reflects an element of contempt for non-Muslims. [His] transliterated comments [during the phone conversation with his sister] support this inference - “Okay then I wish God to support the Muslim community and give us the victory over our enemies” … .

His current religious material (Cell based) does not appear to be of security concern … . Whilst [the defendant] holds strong Islamic religious beliefs these are not considered to be a threat to the safety or security of any centre. Likewise, he has not committed any acts in prison that would constitute the advancement of any form of extremist ideology.

55. On 14 August 2013 the defendant was arrested in New South Wales for the offence of breaking and entering committed the preceding day. In the course of his apprehension he threatened police with a weapon (as described at [34]). Upon his remand in custody on these charges he underwent reception screening by a registered nurse of the Justice and Forensic Mental Health Network. The following was recorded:

Aggressive at times, elevated. Easily agitated. Began preaching religious matter at one stage - explaining he is a preacher. Unpredictable. Intense.

56. Prior to December 2013 police interviewed associates of the defendant concerning the incident in which he had been shot in the back in September 2011. It was ascertained from these associates that the defendant “appears to hold somewhat extreme Muslim views and that he is known to quote religious verses and use religion as a means of justifying his criminal behaviour”. Police interviewed the defendant at Wellington Correctional Centre on 2 December 2013 in relation to the 2011 shooting. They recorded the following:

Whilst speaking to [the defendant] he repeatedly stated that he hates Australia and its government and will leave the country as soon as he is released from prison. [The defendant] went on to say that prior to being arrested he attempted to renounce his Australian citizenship and hand in his passport … He expressed an extremely strong desire to return to his country (Lebanon) and that he would happily hand himself in at Villawood Detention Centre and be deported … he went on to say that he may actually only remain overseas for a year or two. During the conversation [the defendant] expressed a number of very strong religious beliefs, stating, “I will be judged by no one but God” when referring to his impending court matters, displaying a complete lack of regard for the Australian judicial system.

57. The interviewing officer reported at the time a concern “that his hatred of Australia may lead him to commit acts of terrorism, or that he could be susceptible to such views”. The officer understandably drew the conclusion that in view of his expressed hatred of Australia and its government and his intention to leave Australia upon release from prison, “a negative conclusion could be justified should he wish to return”.

58. In September 2013 the defendant was on remand for the charges of break and enter and assault police as referred to at [34] and [55] above. Dr Furst examined him and prepared a report dated 22 September 2013. The doctor considered that the defendant required close monitoring and assertive treatment with medication. He found the defendant:

acutely psychotic, paranoid and [reporting] auditory hallucinations he took to be real telling him he was going to be killed and to kill himself.

59. On 10 December 2013 Dr Roberts, psychiatrist, prepared a report with respect to the defendant’s fitness to plead to the charges of break and enter and assault police committed on 13 and 14 August 2013. The defendant presented as “angry and animated” and his manner “was such as he could readily induce fear or be perceived as dangerous”.

60. The doctor confirmed a diagnosis of schizophrenia, persecutory type, involving “a complex delusional system involving police, officers of the Court and his legal representatives colluding to keep him in custody”. The history taken by Dr Roberts included the following:

[The defendant] went on to speak of his disgust at Australia. He stated, “If this country got invaded, I would sit back and laugh at them”. He went on to state that he loves Lebanon more than Australia. He stated, “Send me back to my country man”.

61. On 30 August 2014 the defendant was at Lithgow Correctional Centre serving the term of imprisonment imposed by King DCJ for the break and enter and assault police charges from August 2013. On that date he flooded his cell. It was necessary to remove him forcibly. In the course of this being done he made repeated threats to kill the Corrective Services officers who were performing their duty. He flooded the cell to which he was moved and had to be relocated again. During this procedure he once more made death threats. When he was eventually locked into his third cell he came to the door and spat on one of the officers. His continued violent resistance necessitated placing him in a restraining belt.

62. On 11 September 2014, while still in custody, the defendant was referred to Justice Health for review of his psychiatric and pain relief medications. He reported that he heard whispers and believed that they were about him. The registered nurse who interviewed him recorded the following:

Preoccupied with recent events involving ISIS, the destroyer “Obama”, 9/11 an American invention.

Quite preoccupied with ISIL and the jihad.

63. 31 January 2015 at John Moroney Correctional Centre the defendant became abusive toward a sweeper at mealtime. He was returned to his cell and there informed staff he had been “given a non-religious friendly meal and he was a Muslim”. He became abusive and threatening towards the corrections officers and wanted to fight them. He took a television set which was in his cell and tried to swing it in the direction of the officers. They restrained him but when he became compliant and was released, he went to the back of his cell and obtained a razor blade which was secreted there. He attempted to slash the officers with this. He was charged for the attack on the officers and given a sentence of 12 months with 9 months non-parole, as referred to at [35].

64. In June 2015 the New South Wales Corrections Intelligence Group received information that the defendant had been leading Muslim prayers at Junee Correctional Facility during the temporary absence of another inmate who was the usual prayer leader. However local intelligence staff at Junee did not confirm this and reported that the defendant:

is further not known for his involvement in converting or radicalising other inmates.

65. On 28 August 2015 the defendant attended a medical clinic in Lithgow correctional facility to receive his medication. He was asked to wait whilst injections were administered to inmates who had insulin-dependent diabetes. He became agitated and aggressive. Within the hearing of staff, who were within about two metres from him in a small waiting area, he said to another inmate, “I’ll bomb this place mate, it’s putrid. The staff here are putrid”. A corrections officer told him his comments were unwarranted and his behaviour threatening. He then said:

Is it because of my beard, is it because I am Muslim?

66. The corrections officer replied that anyone who made a threat of bombing something would be challenged, upon which the defendant said:

I was only joking, I would not do that.

67. On 15 August 2015 during an assessment by a Justice Health psychiatrist the defendant expressed “strong ideas about politics and religion (USA are terrorists)”. During another psychiatric assessment on 26 April 2016 he “began a lengthy political diatribe about Australia and Muslim relations etc”.

Defendant’s expressions of support for terrorism

68. Whilst in prison in [redacted] 2016 the defendant told [redacted] that he hated [redacted] all non-Muslims. The defendant was constantly in possession of a Quran in Arabic. He made statements to [redacted] the following effect, on repeated occasions over about three months:

Australia is not my place. I cannot wait to get out and go overseas.

I have a contact in Lebanon on who can take me over to Syria so I can fight against the Syrian Government [and] against Hezbollah.

I would never do anything in this country but I hate everyone who is not a Muslim. Every non-Muslim is the infidel.

I want to go to Syria to help any party fight against the Syrian regime.

I want to go for jihad.

69. [redacted] disputed the defendant’s proposition that the Muslim religion authorised violence. However the defendant was persistent in his expression of that view. During this period the defendant discussed with [redacted] the Islamic shooting attack upon a gay nightclub in Orlando Florida on 13 June 2016, in which Omar Seddique Mateen murdered 49 people and wounded a further 53. With reference to that event the defendant said:

I’m happy for what happen because that person, he was a Muslim, when he killed these people and after he got shot by the police or someone shot him and he died, he became a shahid [martyr]. … [These] people they’re gay. In our religion a gay people should be killed. … Look, end of day it is good because it happen in America, they’re infidel anyway.

70. The witness who gave evidence of these statements emphasised that he did not hear the defendant state that he intended or wanted to kill gay people in Australia himself, only that he believes Islam authorises such killing and he was happy the massacre had occurred. The witness was challenged about all of the statements he attributed to the defendant but I found him entirely credible. There appeared no element of exaggeration in what he attributed to the defendant. The defendant’s counsel taxed the witness with differences between his evidence in court and things he had said or not said on a prior occasion. I found the differences insubstantial and not suggestive of unreliability or dishonesty in the testimony I received.

71. The witness was also cross-examined to suggest there was a tension between his description of the circumstances in which he came to hear the statements made and his evidence that he had expressed emphatic disagreement to the defendant. The witness was able to reconcile this perceived tension to my satisfaction. It was put to the witness that he gave his evidence in order to [redacted]. That was refuted by the witness, in my assessment convincingly. The defendant did not give evidence. He therefore has not denied making the statements or suggested that other things may have been said as qualification or retraction of the sentiments expressed.

Defendant is a “terrorism activity offender” (pre-requisite 3)

72. I accept that the defendant made the statements quoted at [68]. His saying that upon release he wants to go to Syria to fight the Syrian government and Hezbollah “for jihad” amounts to “advocating support for engaging in any terrorist acts”. In its well-accepted common Islamic usage jihad means combat by Muslims against people of other faiths (or of none) to spread and impose the Muslim religion. I accept the submission of the plaintiff to which I have referred at [13]. Accordingly, the evidence establishes that the defendant is a “convicted New South Wales terrorism activity offender” within the meaning of s 10(1)(c)(i) of the Act and for the purposes of s 20(c)(iii), and the third prerequisite is fulfilled.

73. It is material to the fourth prerequisite under s 20(d), namely, whether the defendant poses an unacceptable risk, that he qualifies as a “convicted New South Wales terrorism activity offender” upon a very narrow and particular basis. The only context in which he is shown to have expressed a willingness himself to perpetrate violence in the Sunni Islamic cause is with reference to the civil war in Syria. Further, after proclaiming his intention to fight in Syria in mid-2016 the defendant travelled to the Middle East in December of that year, in breach of his parole order, but there is no evidence that he proceeded to fight in Syria or to attempt to do so.

74. The plaintiff does not contend that the defendant has ever expressed an intention to carry out on Australian soil any act of violence for the purpose of intimidating the Australian public or an Australian government. It is not suggested that he has ever displayed a willingness or desire to perpetrate violence in this country for the purpose of advancing Islam.

75. This is significant. Since 2003 numerous Muslims have been convicted under Pt 5.3 of the Criminal Code of planning and preparing violent attacks upon the Australian population in furtherance of their religion. As a result of police vigilance there have been a smaller number of such attacks actually carried out, notably the knife attack on police at Endeavour Hills, Victoria in September 2014 and the murder of Curtis Cheng at Parramatta on 2 October 2015. In all these cases of planning or executing Islamic terrorist attacks the objective of the perpetrators has been to sow fear amongst the Australian people and to disrupt law enforcement with a view to creating instability during which Muslims could subjugate the entire population under sharia law.

76. Whealy J’s findings in R v Touma [2008] NSWSC 1475 at [115] are typical of these cases. His Honour found that Touma exhibited:

a detestation of democratic government and social liberalism. … the notion that Muslims are obligated to pursue a violent form of jihad to undermine and overthrow liberal democratic societies and to replace them with Islamic rule and Sharia law.

77. In R v Khaja (No 5) [2018] NSWSC 238 I made this finding (at [4]):

Sharia law has two primary sources: the Quran and the Sunnah (example of the Prophet Muhammad). In Islam the Quran is believed to consist of revelations received by the Prophet from Allah around 1400 years ago. It is expressed in its entirety as a record of words spoken by Allah. The example of the Prophet is recorded in hadith (being traditions of his life, collected relatively soon after his death) and in pious biographies. Coming from these sources the rules which constitute sharia are evidently regarded in Islam as eternal and not open to change by human reason and decision. Governance by unalterable faith-based laws would obviously be antithetical to Australian democracy. Forcible substitution of sharia for the laws of elected parliaments was an ultimate objective to which the offender’s planning of an attack in western Sydney was directed.

78. The defendant in this case has expressed hostility to Australia on frequent occasions and by his conduct has demonstrated a comprehensive lack of respect for Australian laws, for Australian police and other authorities, for the courts and for the rights of his fellow citizens to their personal security and property, in their homes and in public places. He has espoused his adherence to Islam over many years. He has shown himself to be an Islamic bigot, expressing contempt and hatred for anyone who does not accept the Quran, being the overwhelming majority of Australians.

79. However there has not been exhibited in the defendant’s behaviour or statements any equivalent of the ideological objectives seen in the Islamic terrorism cases referred to above. He has not voiced the Islamic religious rationale, which these cases reveal, for attacking the Australian population and governments in order to impose sharia law. Nor has he shown a desire or a willingness to inflict violence simply as an expression of his intolerance of homosexuals and of those who do not accept Islam.

Expert assessments of defendant’s propensities

80. In a report of 30 July 2018 Ms Prince and Ms Cieplucha, forensic psychologists in Corrective Services, assessed the defendant as presenting “a high risk of both general and violent offending”. In her report of 17 September 2018 Dr Pulman noted:

There are consistent risk assessments of [the defendant’s] propensity to reoffend and to commit further violent offences placing him in the High-risk category. The writer concurs with these assessments and regards [the defendant’s] risk of committing further violent offences as High.

81. Dr Eagle did not disagree with these views and nor would I, with the qualification that on the basis of his record the level of violence he may perpetrate is likely to be of a relatively low order. The pattern of the defendant’s life is so consistent that it must be regarded as a high probability that, upon release from prison, he will again commit some form of property or dishonesty offence and that when confronted with police intervention he will react violently. This expectation is reinforced by the consideration that his schizophrenia is a lifelong disorder for which he does not cooperate in treatment when at liberty. Further, his personality traits of aggression and quick temper make it likely that his history will continue to repeat itself and that constructive and effective rehabilitation is a remote and probably unrealistic possibility.

82. The only mitigating consideration with respect to this bleak forecast is that the defendant’s past violence has not been of a high level and has not been premeditated. He has not used violence in furtherance of other crimes but, for the most part, only in reaction to being caught. He has not pursued violence for its own sake nor for any form of psychopathic gratification.

83. The plaintiff has not sought against the defendant an extended supervision order under s 5I of the Crimes (High Risk Offenders) Act. Such an order can be made under that Act against a person with a propensity for violence only where that person is a “serious violence offender” within s 5A. Subsection (1) of s 5A is as follows:

5A Definition of “serious violence offence”

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

84. Although the defendant is significantly likely to commit another offence involving violence, because he does not fall within s 5A the Court would have no jurisdiction under the Crimes (High Risk Offenders) Act to make an extended supervision order against him, no matter how high the likelihood of such further offending. As explained at [10]-[16] above, under the Terrorism (High Risk Offenders) Act an extended supervision order can only be made if there is an unacceptable risk with respect to not merely the commission of a violent offence but the commission of a “serious terrorism offence”, involving the intentions of intimidating the public or a government and of advancing the cause of Islam (as considered at [10]).

85. With respect to the specific risk of the defendant committing a “serious terrorism offence” Ms Prince and Ms Cieplucha concluded that the defendant presents:

a low risk of engaging in violent extremism. … [T]here is insufficient information available to provide a strong assessment of risk of extremist violence or meaningful risk scenarios.

86. Dr Pulman arrived at a conclusion very similar to that of Ms Prince and Ms Cieplucha:

Based on the material available to the writer at the time of preparation of this report, it is the writer’s professional opinion that whilst [the defendant] is currently assessed as a High risk of further general and violent offending, he is considered a low to moderate risk of engaging in extremist violence if he is not kept under supervision whilst in the community under and extended supervision order.

87. In expressing that opinion Dr Pulman used the term “extremist violence” in the sense of violence as part of a serious terrorism offence with the elements summarised at [10]. That sense is evident from her usage of the term “extremist” throughout her report. In answer to Question 5 as submitted by the plaintiff, Dr Pulman said:

Whether [the defendant] poses a risk of committing a serious terrorism offence in Australia is unclear. Should he associate with other Muslims within Australia who hold similar views then he remains a risk of committing a serious terrorism offence.

88. In the material before me on the summons the only evidence of any such association is the intelligence concerning his connection with “Ummah United” and “Brothers United” in 2012 (see [50] above). Over the six years since then there has not emerged any evidence that the defendant has associated with Islamic fanatics who might encourage him towards the commission of violent offences in the name of his religion and with the intention of intimidating the Australian public and/or governments. A report recently prepared by police of the Joint Counter-Terrorism Team identified some evidence of “peripheral associations” with a small number of persons regarded by that Team as having “extremist” (which I take to mean violent) Islamic views. The officers did not assess the defendant as currently having “any motivation or intention to carry out, advocate for or facilitate an act of politically motivated violence in Australia or offshore”.

89. One of the questions in a letter from the Crown Solicitor’s office to Dr Eagle dated 18 August 2018 sought further opinion regarding the defendant’s “risk factors for radicalisation”. “Radicalisation” is not a self-explanatory term. At par 129.3.1 of her report Dr Eagle gave her understanding of it as “indicative of a person who rejects the overriding mainstream or status quo but does not necessarily result in violence or other problematic behaviours”. In oral evidence the doctor said:

[T]he term radicalisation suggests that you adopt a belief system that is at the extreme end or outside the mainstream view associated with that religion. … [I]n relation to Islam it would be adopting a belief system that condoned violence. That would be one aspect. So that wouldn’t be part, considered part of mainstream Islamic belief system as far as I’m aware. But … I am not an expert in the Islamic faith.

90. It was entirely reasonable for Dr Eagle to have understood the question in that sense. However this shows that the question was not a useful one. “Radical” or “not radical” is an evaluation of the defendant’s beliefs relative to what are assumed to be the beliefs of other Muslims. That enquiry is beside the point of what I have to decide. The Act requires that I determine whether the defendant’s beliefs incline him towards violence in furtherance of his religion, that is, towards terrorist acts as statutorily defined. I am not required to ascertain the “mainstream Islamic belief system” with respect to inter-faith violence or to measure whether the defendant’s views on the subject are “radical” relative to that norm. The question framed for Dr Eagle assumes that “mainstream Islamic belief” does not condone religious violence and that to examine “factors for [the defendant’s] radicalisation” is therefore equivalent to examining his inclination to violence. I do not make any such assumption and I do not consider that there is such equivalence.

91. A vast amount of Islamic preaching and literature is and has been distributed by Internet and other media advocating that Muslims have a religious duty to perpetrate violence against Western communities and to bring them under Islamic rule. Detailed religious scholarship, with extensive references to the Quran and to the conduct of the Prophet, is given in support of these views. Al-Awlaki, referred to at [52], is but one name amongst dozens if not hundreds of Islamic scholars who have publicly and internationally propounded these views in recent decades. There have been many more through the ages. Not only would it be irrelevant to the application of the Act for the Court to enquire whether this militant teaching of the religion is “mainstream” or, on the other hand, “radical” in the sense understood by Dr Eagle but, further, none of the expert witnesses called would have been able to assist the Court on this. None of them has studied Islam, either directly through its scriptures or indirectly through reading the wealth of literature (including readily accessible Western literature) in which the religion has been described and analysed.

92. The statute requires that precise concepts be applied to the facts. This necessitates that phenomena in the evidence be called by name, not obscured in the pursuit of neutral terminology. The question material to the determination of the summons is what factors in the defendant’s circumstances may increase the likelihood of him acting violently to advance the cause of Islam.

93. Notwithstanding the limitations which flow from the way in which this question was posed for Dr Eagle’s opinion, her report usefully addressed the issue of whether the defendant’s evident religious belief may dispose him to act violently. At par 11 Dr Eagle said:

[The defendant] has few risk factors for imminent violent extremism. The most significant risk factors for potential extreme violence are the reports that he wanted to travel to Syria to fight for the Islamic State and his threat to “bomb” the correctional centre. It is difficult to draw any firm conclusion as to the level of risk, particularly given that the veracity of some of the witness information is unclear.

94. The doctor further elaborated this part of her report orally:

It’s really the identification with that military approach to Islam that is the risk factor. So it’s his identification and …sense of feeling part of that movement, that military movement, to take up arms in the name of the religion, that is the identification warning behaviour. And then … the only other proximal warning behaviour that was really evident was … the threat in the correctional centre. … [H]e’d mentioned his religion at the time according to the information provided, but as I said there, it did appear to be made in reaction to frustration at the time [at not receiving his medication].

95. Later the doctor said that “all threats … should at least be evaluated and considered seriously”. The following further opinion was given in oral evidence:

So one of the factors that … has been associated with people who have committed violent extremist acts - has been having a personal grievance or outrage. And that has been considered to be quite a significant risk factor associated with … a lot of acts of violence associated with religion. And so if a person has already paranoid or persecutory beliefs and this is fuelling their sense of anger and outrage that they’re being persecuted by a third party such as police or government, then that sense of personal grievance can also increase. … [T]he combination of factors would suggest that yes, his risk of say responding to … this grievance in the context of being unwell and feeling persecuted might increase his risk of acting violently in the name of a religion.

96. Dr Eagle acknowledged that actuarial tools for assessing risks of religion-based and ideology-based terrorist violence are “unlikely to be effective”. She said that due to lack of available research such protocols as have been developed for assessing the risk of a particular person committing a terrorist offence are in the nature of “investigative template(s)” and have not reached the standard of reliable professional judgment tools. She said that one author who had reviewed a decade of empirical research focused on Islamic terrorism found that it had “largely failed to find valid nontrivial risk factors for terrorism”.

97. The doctor’s opinion is of value with respect to the interaction between the defendant’s paranoid schizophrenia and his religion, indicating that there is a risk the religion may become a focus and catalyst for his mental instability and, on his history of limited violence, he may progress to a terrorism offence. But Dr Eagle’s opinions would not support a conclusion that there is a high probability of this occurring. Her opinions do not indicate a high risk that the defendant will carry out or plan or prepare for an act of violence with the intention of intimidating the public or a government for the purpose of advancing his religion.

Risk of terrorism offending not unacceptable (pre-requisite 4)

98. As best I am able to judge on the material before the Court and with such assistance as the expert witnesses have been able to give, I do not consider that the defendant, in the absence of an extended supervision order, poses a significant risk of perpetrating violence in furtherance of his religion in a manner which would constitute a “serious terrorism offence”. To the extent that he poses any risk at all of committing such an offence I do not think it likely that it would involve an act of really serious violence towards any individual or group. To the extent that the defendant poses any risk of committing a serious terrorism offence and of it being one with grave consequences for the safety of one or more members of the public, I do not consider that the risk could be regarded as unacceptably high. In forming these views I have treated as the paramount consideration the safety of the community, in accordance with s 25(2).

99. As required by s 25(1)(e) and (h) I have considered the practicality of managing the defendant under an extended supervision order. As shown by his conduct during the brief period while the defendant was under an interim supervision order (see [3]-[4] above) and consistently with his lifetime habits of non-compliance and conflict with authority, the implementation of an extended supervision order would be fraught with difficulty. I do not consider that would be a reason for not making such an order if the circumstances of the case otherwise justified it. However it would dictate that the conditions of the order should be looser than those which were imposed on an interim basis. A balance would have to be struck between maintaining reasonable supervision and, on the other hand, unnecessarily multiplying occasions for conflict.

100. I have taken into account all other matters listed in s 25(3) of the Act, to the extent those matters are relevant to the facts of this case, throughout these reasons.

The defendant’s desire to leave Australia permanently

101. As recorded throughout these reasons the defendant has repeatedly stated his rejection of Australia and his preference to reside in Lebanon. In the course of the hearing I raised with the plaintiff’s counsel the possibility of this being facilitated. Counsel submitted that there would be legal hurdles to be overcome. I strongly urge that both the State and the defendant’s legal advisers should thoroughly explore any available means by which the defendant might realise his wish. There is nothing to be served by keeping him against his will in a country he detests. His desire to leave Australia may be founded upon the Islamic ideal of hijrah, being migration to join an Islamic community living under sharia. In the defendant’s case this would appear to suit all parties.

Orders

102. For these reasons I will make orders as follows:

1. The summons is dismissed.

2. The interim supervision order made by Campbell J on 2 August 2018 and last extended by Bellew J on 25 September 2018 is discharged forthwith.

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Decision last updated: 06 November 2018