State of New South Wales v RC (No.2)

[2019] NSWSC 845

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v RC (No.2) [2019] NSWSC 845
Hearing dates:	2 July 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Amended Summons dated 2 July 2019 is dismissed.
Catchwords:	HIGH RISK OFFENDER – Final hearing – application by the State for an ESO - whether there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – where the defendant is 19 years of age – where the defendant has professed conversion to Islam whilst in custody –where the defendant has made verbal threats associated with the conduct of ISIS – where the defendant has not committed any serious terrorism offence or committed offences in association with any ideology or religion
Legislation Cited:	Childrens (Criminal Proceedings) Act 1987 Crimes (High Risk Offenders) Act 2007 Criminal Code (Cth) Firearms Act 1996 Terrorism (High Risk Offenders) Act 2017 Weapons Prohibition Act 1998
Cases Cited:	State of New South Wales v Naaman (No.2) [2018] NSWCA 328 State of NSW v RC (Preliminary) [2019] NSWSC 734
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	State of New South Wales (P) RC (P)
Representation:	Counsel: S Free SC / C Palmer (P) M Johnston SC / A Wong (D)   Solicitors: Crown Solicitors (P) Legal Aid NSW (D)
File Number(s):	2019/55501
Publication restriction:	Name of the defendant is suppressed by order of Ierace J dated 18 April 2019

Judgment

1. The plaintiff, the State of New South Wales (“the State”), brings proceedings against RC, the defendant, pursuant to the Terrorism (High Risk Offenders) Act 2017 (“the THRO Act”) for an Extended Supervision Order (“ESO”) for a period of three years.

2. The defendant opposes the imposition of an ESO.

Preliminary Hearing

3. On 18 April 2019, Ierace J made an Interim Supervision Order (“ISO”) and determined the conditions which were appropriate. His reasons for so doing were published on 21 June 2019: State of NSW v RC (Preliminary) [2019] NSWSC 734. Since that time (on two occasions) that ISO has been extended. The ISO will conclude on 18 July 2019.

4. Ierace J made an order for the suppression and non-publication of the identity of the defendant - hence he is referred to by the pseudonym “RC”.

5. This judgment deals with the application by the plaintiff for an ESO for a three year period.

Overview

6. The defendant is an Indigenous man born in 1999. He is just 19 years old. The defendant has a lengthy criminal history and has spent a substantial portion of the last six years of his life in custody, first as a juvenile and then as an adult.

7. He has never been convicted of any terrorist offence nor has he ever been convicted of any serious violence offence as that term is used in the Crimes (High Risk Offenders) Act 2007 (“the HRO Act”). His criminal offending is largely towards the lower end of the scale of seriousness of criminality.

8. He has been diagnosed as having a psychotic disorder, although whether that is properly to be regarded as schizophrenia is at present uncertain. Up until the age of 18 he met the criteria for the diagnosis of a behavioural disorder having regard to his behaviour at school and in the public domain. He has also been diagnosed as meeting the criteria for a substance use disorder which is currently in early remission.

9. The State submitted that the evidence put before the Court relating to what the defendant, in custody, has said, drawn or handwritten (either on paper or on a blackboard) and the posting by him on a Facebook page of a photograph of a young man, all combine to mean that the statutory basis for the making of an ESO under the THRO Act has been satisfied. The State submitted that as he poses an unacceptable risk of committing serious terrorism offences, an ESO needs to be imposed to ensure the safety and protection of the community.

10. For the reasons which follow, the State has failed to persuade me to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if he is not kept under supervision under an ESO.

Court’s Power to make an Extended Supervision Order

11. Section 20 of the THRO Act provides that the Supreme Court has the power to make an ESO if it is satisfied of four statutorily defined preconditions.

12. Section 20 is in the following form:

“20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk

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

(a)    the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed):

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

(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and

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

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

(i) a convicted NSW terrorist offender,

(ii) a convicted NSW underlying terrorism offender,

(iii) a convicted NSW terrorism activity offender, and

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

13. Senior counsel for the defendant ultimately accepted that there was no issue that the State had satisfied the Court that the matters set out in sub-sections (a) to (c) inclusive were proved.

14. However, the defendant disputed that he poses any risk at all of committing a serious terrorism offence if not kept under supervision, let alone an unacceptable risk as required by s 20(d) of the THRO Act. He submitted that the Court could not be satisfied of either of those matters on the ordinary onus, let alone to a high degree of probability.

15. Any consideration of the case for the State on this disputed issue commences with an articulation of the relevant legal principles.

16. In State of New South Wales v Naaman (No.2) [2018] NSWCA 328, the Court of Appeal (Basten, Macfarlan and Leeming JJA) said the following, in relation to s 20(d) of the THRO Act:

“29.   Paragraph (d) is a complicated provision, … 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. … 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 (ie 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.”

The Defendant

17. The defendant was born in South Australia and moved to Albury with his family when he was about ten years old. Whilst growing up, the defendant had little contact with his biological father (who had separated from his mother). He had a good relationship with his stepfather who died in 2016.

18. From about 13 years of age, the defendant had a disrupted adolescence. Thereafter, he frequently engaged in delinquent and socially aberrant behaviour. His schooling was sporadic – often with a maximum attendance of one to two days per week. He was reported as engaging in an enduring pattern of oppositional and defiant behaviour whilst at school which resulted in approximately six separate periods of suspension.

19. His formal schooling terminated when he was in Year 9. His education whilst in the juvenile justice system has not made any significant progress. The defendant has no employment history and has not worked whilst in custody.

20. The defendant has a relatively unremarkable medical history, although there have been a number of occasions when he has attempted self-harm.

21. The defendant denied to Dr Chelsey Dewson, a psychologist, that he had any difficulty in forming or maintaining peer relationships. This statement seems to be corroborated by the fact that he often offended in company. It is clear that his peer group with whom he associated were generally of his age and generally were not a good influence on him.

22. The defendant has had a protracted history of polysubstance abuse commencing in adolescence. He commenced using cannabis at the age of 12. By the age of 14, he had commenced drinking alcohol in what seems to be a binge drinking pattern of use and then, whilst in custody, at the age of 15, he was introduced to the consumption of crystal methamphetamine (“ice”) and Buprenorphine. Whilst in custody around the ages of 16 and 17, the defendant also took a non-prescribed antipsychotic medication, Seroquel.

23. The defendant reports that since his most recent period on supervision in the community, he has not consumed alcohol or drugs. This history is supported by the evidence of his current parole officer, who has conducted random drug detection checks on him.

24. When tested with respect to his intellectual functioning levels and level of verbal comprehension, the defendant was found to have scored in the borderline to extremely low range. His neurological status and functioning was detected to be in the extremely low range, and his Immediate Memory Index was in the borderline range. On the Language Index (which measures expressive language functioning), the defendant scored in the extremely low range, which suggests that he has difficulties with the fluent use of language and has impairment in Receptive Language. His score on the Delayed Memory Index was in the extremely low range.

Criminal History

25. The defendant’s first episode of criminal conduct occurred within a month of his 14th birthday. Together with others, he broke into a licensed sports club, stole bottles of spirits and significantly damaged the premises. Just eight days later, the defendant and an associate broke into a shop and stole items including cigarettes. He also threw a rock through a community hall window, destroying or damaging that property. Finally, about six weeks later, having been reported missing by his mother, the defendant was arrested and charged with being in receipt of stolen property.

26. For these charges the defendant was sentenced to a nine month Control Order with a non-parole period of two months, and also a concurrent 14 day Control Order. The defendant’s release was subject to a variety of conditions including submitting himself to the supervision of Juvenile Justice and conditions which required him to attend school.

27. The defendant was released on parole in January 2013, and thereafter was charged with a range of relatively minor offences including larceny and destruction and damaging of fences, for which he spent varying times in custody in Juvenile Detention. Whilst in detention, the defendant was found to have damaged or destroyed property, generally to a relatively minor extent.

28. The defendant’s first criminal offence involving the use of a weapon occurred on 10 June 2015, when, together with an associate, he robbed a taxi driver. During the robbery, he pointed the knife towards the driver. This was also the first occasion of an offence involving violence towards anyone. This occasion was about three months before the defendant’s 16th birthday. For this serious offence, the defendant received a 14 month Control Order, commencing on 21 July 2015 and concluding on 20 September 2016, with a non-parole period of seven months fixed to expire in February 2016. He was released in January 2016, and thereafter spent some time in Victoria where he was also sentenced to Juvenile Detention.

29. The defendant was released on parole towards the end of August 2016. He continued to commit various offences – some more serious than others.

30. In May 2017, the defendant, with two associates, smashed a car window and stole items from that car. By this stage, the defendant was over 17½ years old. . He also pointed a replica pistol at the heads of the two victims. As a result of these offences, the defendant was charged with a number of offences including using an offensive weapon with intent to commit an indictable offence and possessing an unauthorised pistol. He was sentenced to a 12 month Control Order with a non-parole period concluding on 5 January 2018 for the principal offence. He received concurrent shorter Control Orders for the lesser offences.

31. The defendant was released from custody on 5 January 2018, and just three weeks later, with an associate, approached a vehicle in an attempt to carry out a robbery. He was initially unsuccessful with one motor vehicle, and then approached a second vehicle, pulled out a large knife and pointed it towards the victim demanding the victim’s car keys and wallet. The victim declined and used his mobile telephone to call the police. The defendant ran away but was pursued and arrested.

32. As a consequence of this arrest, the defendant’s parole was revoked and he was charged with an aggravated break and enter with intent to commit a serious offence. For this he received a 15 month sentence with a non-parole period ending on 25 November 2018, and the sentence concluding on 25 April 2019. He received a similar sentence for demanding property in company with intent to steal.

33. In September 2018, whilst he was in custody, the defendant was sentenced to a Control Order for aggravated break and enter and commit serious indictable offence. That Control Order was served concurrently with the sentence to which I have just referred.

34. In respect of two other charges, namely taking and driving a conveyance without the consent of the owner and disposing of property, the defendant was dealt with under s 33(1)(e) of the Childrens (Criminal Proceedings) Act 1987, by the making of an order for his release subject to probation for a period of two years. That order commenced on 24 September 2018, and will remain in place until 23 September 2020.

35. It can be observed that this lengthy criminal history was accompanied by a number of features. The central feature is that most of the offences occurred in connection with a primary offence of the theft of property or goods. The malicious damage offences generally occurred in the course of breaking and entering carried out for the purpose of a robbery. The use of a knife was associated with an attempt to rob individuals of their money or belongings. More often than not, the offences were carried out by the defendant whilst in company of one or more other persons, generally of his own age and from the peer group with whom he was associating.

36. During his latter teenage years, from 2015 onwards, the defendant, as indicated earlier, was addicted to drugs and no doubt engaged in the criminal conduct to obtain money to feed his addiction.

37. It was during one of his periods in custody that the defendant became interested in the Islamic faith, which forms the basis of the State’s case, for his conduct which gives rise to the unacceptable risk of committing a serious terrorism offence. It is necessary now to consider in some detail the defendant’s interest in Islam.

Theological Assessment Report

38. On 3 April 2019, two members of the Proactive Integrated Support Model team, including the team leader who was a senior psychologist, prepared a report titled “Theological Assessment” (“the TAR”). The authors of the TAR had available to them considerable documentation and, as well, had an interview with the defendant which lasted a little under three hours.

39. The authors noted that the defendant made a decision to accept Islam whilst he was incarcerated at the Youth Justice Centre in Parkville in Victoria in 2016. This followed his exposure to a number of youths at Parkville who engaged extremist thinking and expressions.

40. The authors noted that during his time in the community, the defendant appeared to return to regular learned behaviours and general criminal offending, and that none of his charges appeared to be related in any way to religious extremism.

41. The authors also noted that it was their observation that the level of the defendant’s motivation and commitment to the Islamic faith was not high. They noted that that observation was confirmed by case notes indicating that he did not maintain his religious duties such as making his five daily prayers. They drew attention to a case note of 15 October 2017, which said:

“…the last time you reverted to Muslim it lasted three or four days.”

42. In response to particular questions, the defendant gave a vague answer to describe his concept of jihad. His total description was as follows:

“My concept of jihad is a peaceful struggle for our religion, to keep the peace towards our religion and other religions.”

43. The authors noted that it appeared that the defendant struggled with his commitment to the Islamic faith and his behaviour with respect to his faith in juvenile detention had been erratic. At the time of the interview, he was having difficulty maintaining his commitment to praying five times a day. The authors said:

“[The defendant’s] observed level of religious understanding and religious practice would indicate that he struggles with his commitment to his faith. This view is supported by case notes indicating he struggles to maintain religious duties and that he does not seem to put much effort into learning more about his faith. He has not recently made any requests for ongoing religious support.”

44. The authors summarised their view of the defendant’s engagement with Islam in the following way:

“[The defendant’s] extremist rhetoric began before he accepted Islam and appears to be informed in part by what he would see on TV, and what he would hear from other detainees in juvenile custody. Although there were several case noted uses of extremist rhetoric, there were also a number of instances where he was case noted as having used rhetoric contradictory to that used by an ideologically-driven extremist. This would sometimes occur in the same incident. It appears he often did this in an attempt to get a reaction from, and shock, staff … It also appears that he presents as more oppositional and likely to be abusive and provocative when he is not medication compliant …

Case notes … indicate that [the defendant] is impulsive in his offending and general behaviour. It seems that his case noted insults, threats, abusive behaviour and stated affiliations with terrorist organisations were in line with his tendency to be impulsive, reactive and provocative.

…

This assessment sought to assess [the defendant’s] potential being driven by distorted Islamic ideology towards violent extremism. There is not enough consistency in the case notes provided to indicate a serious commitment towards any extremist ideology that promotes violence on the part of the offender.”

45. This conclusion was not challenged by any expert or other evidence, and I accept it.

Psychological Risk Assessment Report

46. A clinical and forensic psychologist with Corrective Services NSW, Ms Naomi Prince, and a senior psychologist with the Terrorist High Risk Offenders Unit (“THROU”), Ms Filipa Abreu, jointly authored a risk assessment report on 4 October 2018. The report was prepared in anticipation of an application by the State under the THRO Act. In the course of the preparation of this report, the authors assessed the defendant’s risk using a number of tools. One of the tools was the Violence Extremism Risk Assessment – Version 2 (revised).

47. This assessment tool was used during an interview with the defendant in September 2018. The results of that assessment were as follows:

“It is notable that any assessment of risk is time and information specific. This is particularly true for the assessment of risk for politically motivated violence, violent extremism and/or terrorism activity. Based on the information available at the time of assessment [the defendant] was assessed as presenting with a low to moderate risk; however the factors which appear most relevant to [the defendant] would indicate his risk to be highly variable over time, such that any category of risk may have little value or meaning. Based on a combination of file review and interview, a number of indicators of concern were however identified as relevant in the assessment and management of [the defendant’s] level of risk.” (emphasis added)

48. In their assessment report, the authors noted that the defendant’s behaviour in adult custody did not indicate any support for or promotion of Islamic extremism. In the course of the interview the authors noted that:

“…since entering adult custody ‘the boys’ have taught him about ‘how IS are wrong’; he denied any ongoing support for extremist violence. He stated his prior statements of support were ‘silly things to say’, acknowledging ‘but it’s serious isn’t it?’, ‘like this is serious, this terrorism stuff’. He was unable to provide any meaningful explanation for his previous views; or how this is different from his current beliefs.”

49. The authors concluded that this was considered more indicative of the lack of ideological commitment on the part of the defendant rather than an active attempt to be evasive. The authors then said this:

“The ease at which [the defendant] appears able to change his mind, affiliation, or adaptation to his environment is notable. [The defendant] has long been identified as a ‘follower’ throughout his time in juvenile detention and in his criminal offending. He has a significant history of bullying and it is likely he will seek out peer groups which he perceives to be protective. This was noted as a possible reason for his initial affiliation with Muslim detainees and interest in Islam. He has had nil formal guidance in Islam and identifies as a Sunni Muslim, noting the Qur’an and Hadith are his influences. This has been identified as a potential source of misunderstanding and misattribution to the lessons or messages in Islam which are often promoted by terrorist groups, particularly IS, to promote extremis violence.

In his local community where his peer group are non-Muslim, he appears to relinquish his faith and to re-engage in drug use and criminal behaviour. [The defendant’s] offending behaviour has always occurred in a peer context and/or with co-offenders.”

50. The authors concluded that there was no information available to suggest that the defendant had the capacity to engage in any form of sophisticated attack. However, they noted that the defendant might be susceptible to the influence of others engaging in unsophisticated acts or as being a participant for those who are more sophisticated who were themselves engaged in the preparation of a terrorism act.

51. Amongst the expressions of opinion in this report is the following:

“At this time, it is unlikely that [the defendant] would independently undertake an act of terror or engage in extremist or politically motivated violence without influence or encouragement from a third party. This could occur either in the context of direct peer relations or online activity. In the event that [the defendant] does develop a strong affiliation with an Islamic extremist ideology, this could change. Should [the defendant] re-engage in significant online activity including exposure to gratuitous violence, it is possible he may seek to engage in similar behaviour primarily driven through impulsive thrill seeking. This could include direct personal violence or seeking to travel abroad and would most likely occur in the context of significant drug use or mental health instability.”

Expert Psychiatric Report

52. Dr Kerri Eagle, a psychiatrist, compiled a report in January 2019 on the basis of documents provided to her. She did not have the opportunity of meeting the defendant, of taking a history from him, or engaging in any discussion with him. The material available to Dr Eagle was considerably less than the material which was available to the two experts appointed by the Court to undertake an assessment of the defendant.

53. Dr Eagle concluded that the defendant was at a substantially elevated risk, when compared to other offenders, of committing violent offences in the community in the medium to long term unless his risk factors were able to be adequately addressed in a risk management plan. Dr Eagle was not only referring to serious violence offences of the kind that would give risk to the entitlement of this Court to impose an ESO under the HRO Act, but rather to violent offending more generally. She was asked to express a view about engaging in terrorist acts. She said this:

“Based on the information available regarding [the defendant’s] background, presentation and mental disorder, he would appear less likely to engage in any group based terrorist act let alone a violent act. He does not have any known or established association with a terrorist group or other Islamic extremists in the community and he has a number of mental disorders …

[The defendant] has a number of distal risk factors or characteristics associated with a lone actor violence. Based on the information available, he does not appear to have displayed any proximal warning behaviours over the last 12 months which suggest an imminent risk of engaging in a lone actor terrorist act. … The presence of distal characteristics indicate the theoretical potential for engaging a lone actor violent extremism in the future.”

54. Dr Eagle also recorded that there was only limited information available which suggested that the defendant had the capacity to engage in organised terrorist acts or violent extremism. She noted that his previous conduct and level of education suggested that he would have difficulty in organised behavioural planning. However, she did note that the defendant was susceptible to the influence of others.

55. It was Dr Eagle’s view that the defendant’s level of risk would most likely be effectively managed if his mental disorders remain stable, if he avoids substance abuse, engages in a purposeful vocation, avoids anti‑social peer influences and has stable accommodation. Dr Eagle saw no disconformity in the views expressed in the Risk Assessment Report and her report.

56. In a supplementary report dated 16 April 2019, Dr Eagle said this:

“Having regard to [the defendant’s] individual risk formulation, the most significant ongoing area of risk would appear to be his susceptibility or vulnerability to the negative influence of others and his potential exposure to destabilising factors that might heighten any sense of personal grievance and/or increase the susceptibility to the influence of others. For instance, illicit substance use, social/personal stressors and exacerbations of his mental illness would, of themselves, increase [the defendant’s] susceptibility. Illicit substance use and stressors would also potentially precipitate a relapse of his mental illness which would further increase [his] susceptibility.”

Expert Psychological Report

57. Ms Dewson, an expert clinical and forensic psychologist prepared a lengthy report about the defendant as a consequence of her appointment by the Court as an expert pursuant to the THRO Act.

58. Ms Dewson was asked to comment on whether the defendant posed a risk of committing a serious terrorism offence if he was not kept under supervision. She said this:

“There is no information at present to suggest that [the defendant] is at imminent risk of violent extremism and is subsequently assessed as low risk. Despite this, there are concerns relating to the trajectory of [the defendant’s] violence and the possibility of him using extreme religious ideologies as a vehicle by which he can act out violently. Given his apparent vulnerability to coercion, should he be exposed to violent extremists and/or propaganda, there are concerns about his potential for indoctrination and radicalisation. He presented with a confused understanding of Islam and a strong desire for group belonging, which further raises concerns about his risk in the absence of supervision. In general, should [the defendant] return to substance abuse, fail to manage his mental health, continue to associate with anti-social peers, there are likely to be adverse consequences of the trajectory of his violence.”

59. In her oral evidence to the Court, Ms Dewson agreed with the proposition that any expression by the defendant of attachment to extremist thoughts and ideas were largely occurring whilst he was in custody and not during any periods in which he was living in the community. She also said that it was probably more likely that, if the defendant were living in the community, he would associate with people that had antisocial beliefs and engage in property offences rather than associate with people who held, or may hold, extremist beliefs.

Expert Psychiatric Report

60. Dr Andrew Ellis, a forensic psychiatrist, provided a report dated 16 June 2019, pursuant to his appointment as an expert under the THRO Act.

61. I have earlier described the psychiatric diagnoses of the defendant. These are the diagnoses reached by Dr Ellis and include: psychotic disorder, conduct disorder and substance use disorder. Dr Ellis remained cautious during his oral evidence about whether he could confirm the existence of a diagnosis of schizophrenia.

62. In a detailed report, Dr Ellis expressed this conclusion with respect to the risk of the defendant committing serious terrorism offence. He said:

“In considering the clinical evaluation from the framework of tools drawn from the broader literature of extremist violence, [the defendant] does not share most of the characteristics associated with terrorist related violence. He does display a significant number of factors associated with general violence and criminal behaviour. He has scant protective factors. His use of terror related imagery and statements is most likely related to his anger and staff, identification of other detainees seen as powerful or exciting and the relative lack of power in the situation in he finds himself. The use of this imagery is instrumental in this regard to cause more fear in his supervisors. He appears to have used this style of communication when his mental state was more unstable with active symptoms of psychosis. He would most likely be at risk of extremist violence if a person with a terrorist agenda targeted and influenced him. He has a fragile self-identity, and experiences pro-social groups as rejecting him. He has been prepared to engage in other forms of group criminal activity, most likely at the behest of others.”

63. In oral evidence, Dr Ellis expressed the view that the risk factors with which the defendant presented, and the profile of the risk he presented, was more weighted towards the issue of general and violent offending rather than the risk of the defendant committing a serious terrorism offence.

Incidents Relied Upon by Plaintiff

64. There are 13 discrete statements or activities relied upon by the plaintiff as being conduct of a kind which would, in combination with all other features of the defendant, support the conclusion that there is an unacceptable risk that he would commit a serious terrorism offence if not kept under supervision.

65. The first of these occurred on 14 November 2015, shortly after the defendant turned 16. The defendant was in a lounge area, having followed all of the day’s routines. He was watching television coverage of the terrorist attacks perpetrated in Paris at about that time and was heard to say that he wished “… he was over there, he wished he was a part of ISL”. When asked to explain his reasons for these statements, the defendant avoided the question and laughed it off. The officer reporting the incident expressed the view that the defendant was following the example set by others, in particular an individual housed across the hall from the defendant who had expressed similar comments.

66. This seems to be the first reference of any interest by the defendant in ISL or any extremist group. In its terms, it seems to be an external expression of an immature wish for attention, or else alignment with another individual in detention.

67. The second statement occurred a few weeks later, on 6 December 2015. Again, a conversation took place at a time when the defendant was watching a television news story. This time the subject of the story was the attack on the World Trade Centre in New York in 2001. After asking the Juvenile Justice officer some questions about the New York attack, and comparing the number of people who died in it to the number of people who died in the Paris attacks, the defendant said that he wished he was there [New York] to see “all those people crying and being upset”. He went on to say that he was going to carry out “… a much larger attack that will be heaps more people”. In referring to people, he was referring to the number of victims.

68. About a month later, on 3 January 2016, the defendant, whilst in the company of a Juvenile Justice officer, commenced a conversation with that officer whilst relaxing after engaging in a reasonably lengthy game of table tennis. The defendant said that he would love to cut someone’s head off. When asked why, the defendant replied that he was evil and he just wanted to know how it felt. He went on to say that he knew some ISIS recruiters in NSW and South Australia and, together with an associate, was going to do something big when they got out of custody.

69. On 5 March 2019, the defendant was interviewed by two investigators attached to the High Risk Terrorist Offenders Unit. He was asked to explain the comments made by him on 6 December 2015 and 3 January 2016 (described above). In relation to the 6 December comments, the defendant said that they just came out, and that he did not know what he was thinking at the time or why he made the remarks that he did.

70. In relation to the 3 January comments, he said that he did not know why he said it, although at the time he was generally angry with Juvenile Justice workers. In response to a question about saying that he knew recruiters, he said that he was just trying to show that he was ruthless at the time, that he was trying to get a reputation and that he realised that to have said those things was “just stupid”.

71. I do not accept that the defendant was expressing anger with Juvenile Justice workers at the time. The circumstances do not comfortably fit with such a suggestion. However, I am prepared to accept that those statements were made in the context of trying to build up a reputation and to give the appearance of toughness as an individual. No doubt the defendant thought that, in light of his reasonably short stature, he needed to project himself as a tough, ruthless individual so as to avoid trouble whilst in custody.

72. The next incident occurred on Christmas Day in 2015. A note prepared by an officer of Juvenile Justice recorded that whilst sitting at a table eating lunch and in the company of fellow detainees and staff, the defendant, with one of his fellow detainees, was talking about terrorism “… and joining ISIS”. Staff told them to stop, as such discussion was inappropriate. They did so.

73. The evidence about this incident lacks specificity. It indicates nothing more than an interest in the topic of terrorism and ISIS which was, at that time, and because of the attacks in Paris, a subject of interest to the public at large. It was being regularly featured in news programs.

74. The account of this exchange does not, of itself and without more, indicate any extremist views nor any particular adherence to any extremist ideology by the defendant.

75. On 19 January 2016, the defendant engaged in a counselling session whilst at Cobham Juvenile Detention Centre. The defendant was due to be released on parole about a week later. The interview took place in the context of a psychological assessment in advance of his release. The defendant, in the course of that session, clearly showed signs of anxiety and distress about his impending release.

76. The counselling note recorded that during an individual counselling session the defendant reported ongoing distress and concern about his impending release. He reported uncertainty and associated concerns for his own personal safety upon his return to the regional town where he lived. In the course of reporting his concern about life in the community, the following was recorded:

“… that some of his previous older peers may also be affiliated with terrorism. [The defendant] was unable to substantiate these fears/concerns, however he reported he is distressed at times by his own angry and violent thoughts (eg towards police and thoughts of bombing a station) and reported intense feelings of hopelessness about his future.”

77. This disclosure occurred at a time when the defendant, in the course of the counselling session, was quite unclear about what his plans for release were and what alternative plans he would prefer. He was obviously concerned about his future in the community. He was provided with some further psycho-education on what was described by the counsellor as his “ruminative thoughts and anxiety”. He also asked for additional counselling support. The counsellor formulated a plan for looking after the defendant, which involved him being provided with further counselling support, a referral for psychiatric review and that Juvenile Justice staff ought to continue to encourage the defendant’s participation in programmed and recreational activities in order to help redirect his anxiety into productive behaviours.

77. The disclosure about a possible perpetration of violence towards police and a police station occurred in a context of considerable dissatisfaction between the defendant and Juvenile Justice staff at the Riverina Juvenile Detention Centre. It is clear that the defendant had a range of historical complaints about his treatment at the Riverina Centre. Those complaints dealt with matters of reclassification and transfers to and from that Centre to other Centres.

78. Although the note recorded a threat made by the defendant about bombing a police station, there was no suggestion that he intended to do so because of any extremist ideology or any affiliation with ISIS or any other terrorist organisation. The context and thrust of the statements made by the defendant dealt with his feelings of inadequacy about returning to life in the community and having thoughts about violent conduct which would result in his being returned to custody. He clearly felt more comfortable about being returned to custody than any plan which he had at that stage about being returned to the community.

79. The next incident occurred whilst the defendant was detained at Parkville in Victoria.

80. On 11 April 2016, a conversation occurred between the defendant and a Juvenile Justice officer. The context was that the defendant was being held in isolation for causing some relatively minor malicious property damage. He was restrained by two Juvenile Justice officers and at the start of the relevant conversation was obviously very angry with one of the officers in particular. He threatened to slit the throats of the officer’s family and then to kill him. He went on to say that he had made friends in Sydney “who are ISIS and I’m going to join as soon as I get out”. He told the Juvenile Justice officer that he was willing to do anything and that “… I will go through a shopping centre with an AK47 and shoot everyone in sight, I could be a suicide bomber”. He also asserted that he would return to Parkville and kill everyone.

81. Towards the end of the conversation, the defendant expressed a wish to be moved to a different accommodation unit because there was a terrorist in that unit with whom he wished to speak.

82. The defendant was asked about this conversation in the March 2019 THROU interview. He said that the threats which he made were ridiculous and that he, upon reflection, thought that he was “taught the wrong side of Islam at the time”. He said that he had changed his thoughts since then and that he regretted what he said. He was asked about what he thought radicalisation meant, and gave a curious response where he said that it meant that “… you are dumb in the head … religion is based on killing someone”.

83. This comment seems to reflect a changed attitude towards any radical thought in the sense that the defendant acknowledged that becoming radicalised was a stupid thing to do and that you would only do something of that kind without appropriate thought. He appeared, at least by March 2019, to have recanted from such thoughts as he had expressed in Parkville.

84. There is no doubt that in this incident at Parkville, the defendant made verbal threats regarding participating in events of extreme violence. They were, in part, associated by him with the extremist views of ISIS - an organisation which he said he was going to join. He also said he could be a suicide bomber, which was clearly a reference to a common form of extremist violence.

85. The Juvenile Justice worker at that time saw a connection between what was being said and the need to assist the defendant with his anger management problems because the defendant was then asked whether he wished to be referred to a counsellor or an anger management worker.

86. Notwithstanding the context in which this conversation occurred, and that it was a spontaneous one, the expressions nevertheless need to be kept in mind and accorded due weight. Statements made during his time at Parkville seem to be the most extreme of all of his verbal threats.

87. The next incident arises from an Information Report prepared on 28 December 2017, which notes that on 22 May 2016, drawings were apparently located in the defendant’s room depicting Islamic state pictures, Arabic writing and weapons. A copy of those documents was attached to the report. The scanned documents are undated and unsigned. There is no contemporaneous note in evidence which records who found the notes or any details about their existence, including whether the defendant was asked about them or said anything about them.

88. The plaintiff invited the Court to draw inferences from the contents of the notes that they constituted material indicating not only an ongoing interest in ISIS and the extreme violence associated with that ideology (depicted by a plane flying into a building with the letters AFP on it), but that it demonstrated ongoing support by the defendant for an extremist ideology.

89. There is no evidence that the drawings were in any way used by the defendant to indicate or otherwise explain what he was thinking or talking about, nor is it said that having produced the drawings he then used them to influence any other detainee, or in any other way. At best, the drawings seems to me to indicate, in a pictorial way, what the defendant was thinking about at the time, without those thoughts being associated with any positive action demonstrating support for an extremist ideology.

90. I do not regard these drawings as being of any particular weight or assistance in the determination of the issue in these proceedings.

91. On 19 June 2016, according to a contemporaneous Juvenile Justice record, the defendant, whom the officer regarded at the time as making inappropriate comments “… as if to get a reaction”, told staff that he would like to move to Baghdad or Iraq because “… you can get away with murder there”.

92. It is to be recalled that at the time of this conversation, Iraq was a country in which there was an active civil war. Many news reports suggested that it was a place where significant violence was occurring on a daily basis, apparently without adverse legal consequences for those engaged in the violence. No doubt, those engaged in the violence were in turn subject to the adverse consequences by those against whom they had perpetrated violence.

93. The defendant did not associate his remark with anything other than general violence and lawlessness. True it is, he located the violence in Iraq but that of itself, in the context of what was then occurring, does not seem to me to amount to any overt expression of extremist violence, or of violence associated with any particular extremist organisation.

94. On 28 July 2016, the defendant seems to have experienced a difficult day. He received a Management Report for subversive behaviour and was removed from his room to the main holding room where detainees at risk of hurting themselves or others, or of damaging property, are held. Shortly before being transferred to the holding room, the defendant made comments to the effect that when he got out, he was going to pledge to ISIS. He also threatened to slit a staff member’s throat. At the same time, a Juvenile Justice officer who visited the defendant noticed a drawing of an ISIS flag on a desk in one of the common residential areas. Whilst the Juvenile Justice officer seized the hand-drawn ISIS flag, he did not ask the defendant about it.

95. One reading of the evidence about the finding of this hand-drawn flag suggests that it was found in the common area of one of the residential units. This would no doubt explain why the defendant was not asked about it.

96. During the interview in March 2019 by the THROU investigators, a different reading of the evidence was suggested. It was put to the defendant that the hand-drawn flag was found in his room and he was asked what he could tell the interviewing officers about it. He said he obtained the design from watching the news on television and that he was trying to draw an ISIS flag. The defendant was asked by his interviewers if he could draw the flag for the officers but he said that he could not do so. He was asked about the threat to join ISIS and slit staff throats. He responded he could not recall saying those things.

97. There had been significant conflict on that day. The defendant was obviously upset after a verbal altercation with another detainee, and staff concluded that he was fearful for his own safety due to the size and demeanour of the other detainee. That detainee seems also to have been an adherent to Islam. The conversations described above took place whilst the defendant was in the holding room via in intercom to the office in which the Juvenile Justice officers worked. It was at the end of what seems to have been a disturbed day for the defendant. It seems to me, the incident was, most likely to have been largely reactive to the circumstances in which he then found himself. Nevertheless, the statements did suggest a desire on the part of the defendant to associate himself with extremist violence.

98. Next, the State next relied upon a note written by the defendant which contained a drawing of a person apparently beheading another person and with their right index finger raised in a salute which, according to the expert evidence of Dr Roger Shanahan, is associated with ISIS. As well, the note contains threats to harm the families of Juvenile Justice officers. It also uses a phrase commonly used by members of ISIS to attribute their violence to their religious ideology.

99. Although the incident is dated as having occurred on 28 July 2016 by one of the Juvenile Justice officers, it is also recorded in a document dated 4 August 2016 as having occurred on 3 August 2016. Not a great deal turns on the discrepancy in the date. I prefer the evidence contained in the contemporaneous note as being more likely to be correct. The contemporaneous note records that it appeared to the Juvenile Justice officer that the defendant’s behaviour was a result of his risk management program not being reviewed, about which he expressed frustration. His responses to staff during the shift were poor and, having been informed that he was not able to watch television that evening, he seems to have remained in his cell, created the note and used it to cover up the window in his cell through which staff could observe him. The note was later made available to the staff.

100. The note contained violent threats and has a clear association with ISIS. The content of the threats, the association with ISIS and the fact that it was given to staff all combine to satisfy me that they were threats made by the defendant to exact violence on the staff by a method associated with the extremist ideology of ISIS. The defendant was not asked about this incident in the March 2019 THROU investigator’s interview.

101. The defendant was released from custody on parole at the end of August 2016. On 5 December 2016, the defendant’s Facebook page was checked by a police officer and it was found that it displayed a photograph of a young man whose face was concealed by a bandana and a cap pulled low over his forehead, giving the right index finger ISIS salute.

102. Although evidence as to the possible identification of this photograph as being the defendant was not admitted, and I am unable to identify the defendant as the person in the photograph, that is of no particular moment. The significance of this is that the defendant was, as at December 2016, telling the world, through the posting of that photograph, that he was associating himself with the person giving a well-known ISIS salute. There is no evidence about the context surrounding this photograph being displayed, nor is there any evidence from the defendant as to why he annexed this photograph and what he intended to achieve by it. It demonstrated support for ISIS.

103. On 16 June 2017, during a further period in custody and after the defendant was released from a period of confinement into a holding room, graffiti written by the defendant on a chalkboard in the holding room was observed. Amongst other things were statements indicating support by the defendant for ISIS and included threats of violence such as “behead those who dog the brothers”. It also suggested that all infidels should be beheaded.

104. The defendant was questioned by the Juvenile Justice officer at the time as to why he had written those words. He replied “I had to get all the bad things out of my head”.

105. When later questioned in the THROU investigators’ interview in March 2019, the defendant was unable to recall anything of substance about this episode. The Juvenile Justice officer who observed the writing noted that it was written with chalk on a chalkboard. He deposed to the fact that the back of the holding room door had been converted into a chalkboard and that detainees were given chalk and encouraged to draw or write on the back of the door. This incident was relied upon by the State as indicating ongoing and continued statements of a kind which have earlier been discussed, and exhibiting an ongoing interest in extremist violence. The State submitted that, as a consequence of this and the other incidents, the Court would take them into account when assessing present risk.

106. On the other hand, senior counsel for the defendant submitted, the Court should accept the defendant’s contemporaneous account that he was merely trying to write down the thoughts he was having in order to get them out of his head, and that what was written there did not constitute a threat to anybody. This was submitted having regard to the fact that there was no suggestion that the defendant made any threat directly to anybody at the time he was in the holding room or else when he returned to his own accommodation, nor that the content of the writing depicted any particular threat directed at any individual.

107. Even accepting that this was so, there is nevertheless a basis for concluding that at least at the time of this incident, the defendant was continuing to harbour thoughts which were supportive of engaging in the extremist ideology of ISIS.

108. The final event relied upon by the State occurred on 6 December 2018. This event consisted of a conversation over the telephone between the defendant and, apparently, his mother. In the course of a six and a half minute phone call, the defendant told his mother that he wanted to go from the Junee Juvenile Centre where he was being held, to another jail. He said he thought he might try to get to Sydney or somewhere and that the staff were not doing their job properly. The defendant said that he felt like just bombing one of them. This statement occupied a very short time in the course of the whole telephone call.

109. Senior counsel for the plaintiff submitted that it was a statement involving a level of hostility and propensity to violent thoughts and violent expression which was a significant recent indication of the defendant’s thinking. But senior counsel for the plaintiff accepts that, as is plain from all of the above statements, they did not have any specific connection with extremist violence and with the advancing of a terrorist cause.

110. Senior counsel for the defendant submitted that the exact words used were of significance. Contrary to the State’s submissions, senior counsel for the defendant submitted that the statements were in fact more consistent with the defendant’s disavowal of the violent and extremist ideology of ISIS. That was because the statements were just the expression of strong feelings towards particular correctional staff at the juvenile detention centre which had been a place of longstanding antagonism for the defendant.

111. This recitation of the specific incidents of conduct of the defendant, is taken into account in each of the expert reports and upon which, in its submissions, the State placed significant reliance. It seems to me, taken in the context of the particular incidents and subject to the comments that have been made earlier, the incidents amount to statements made by an immature young man confined in a correctional environment where it is necessary to affect a persona of toughness so as to avoid being the victim of other inmates. The incidents occurred in the course of a struggle for identity of a kind that most teenagers engage in and whilst being exposed to events of a kind which are entirely unfamiliar with the life that the defendant had previously led. As well, the expressions were of anger towards juvenile correctional staff for what was perceived to be unfair treatment.

112. Whilst, of course, the mere youthful age of an individual cannot always excuse inappropriate statements, nor is youth and immaturity of itself, and without more, a justification for the Court to dismiss the statements as a nonsense, the Court ought, in assessing the likelihood of the defendant committing a serious terrorism offence, keep in mind the features of the statements, to which reference had just been made.

113. On the other hand, given that the defendant was at the time of these statements a young man with a troubled background, which has earlier been described, and perhaps from time to time suffering the effects of mental illness, the statements have to be taken cautiously. They do not, even taken at their highest, set out a strong commitment to any radical ideology or any extremism. At best, they demonstrate a superficial engagement with external events and with no underlying knowledge of the religion or the thinking of the extremists which gave rise to those events. That is unsurprising. As the theological assessment noted, the defendant’s engagement with Islam and his commitment to it was superficial and variable.

114. It is hard to put a great deal of weight on these statements as being indicative of an entrenched attitude to, and adoption of, a philosophy for extremist violence. They are not a strong indicator of the defendant taking action in the future of the kind described.

Serious Terrorism Offence

116. What is important, in considering the risk of the defendant committing a serious terrorism offence, is the definition of that phrase.

117. A serious terrorism offence is defined in s 4 of the THRO Act as being an offence against Part 5-3 of the Criminal Code(Cth) (“the Code”) for which the maximum penalty is seven years imprisonment or more.

118. Part 5-3 of the Code deals with terrorism. It contains a definition of a “terrorist act”. First the act must be of a particular type as identified in s 100.1(2) of the Code. Such an act must be one which: causes serious physical harm to a person or property, or; death of a person, or; putting a person’s life in danger, or; creating a serious risk to the health or safety of the public (or a section of it), or; interfering with or disrupting an electronic system.

119. Secondly, the terrorist act must not be one which was advocacy, or protest or dissent or industrial action or else was not intended to have the serious effects described above.

120. Thirdly, the terrorist action must be done with one of three possible intentions, namely:

1. advancing a political, religious or ideologically cause;

2. coercing or influencing (by intimidation) a government – whether within Australian or a foreign government; or

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

121. Section 101.1 of the Code provides that if a person engages in a terrorist act, they commit an offence for which the maximum penalty is life imprisonment.

122. It is important in the Court’s consideration of the plaintiff’s case, to keep in mind that one or other of the intentions described above at [120] must accompany an intentional act on the part of the defendant: see Naaman (No.2) at [4]; [30]-[38].

Discernment

123. The statements made by the defendant, and the threats of violence which he made, were not specifically associated by him with any of the intentions to which reference has just been made. It might be said that some of the threats were associated with the conduct of ISIS and indicated support for that ideological cause. However, to the extent that that inference can be drawn, I very much doubt that it was intended by the defendant to be expressed in that way.

123. I understand, and accept, that the experts have expressed concern about the statements which were made. But, as earlier indicated, placing those in the context of specific events and in relation to the age of the defendant, my assessment of them is that they do not support, taken either individually or in combination, a conclusion that there is any real future risk that this defendant is likely to commit a serious terrorism offence.

124. As well, it is necessary to keep in mind that at least until September 2020, the defendant will continue to be subject to the supervision of the Community Corrections Office as a consequence of the release conditions, to which I have earlier referred at [34].

125. I should also note that on 23 March 2018, a delegate of the Commissioner of Police, made two orders directed to the defendant: the first was a weapons prohibition order under s 31(1) of the Weapons Prohibition Act 1998, which was made by reason of the defendant’s convictions for being armed with, using or else possessing offensive weapons; the second was a firearms prohibition order made under s 73(1) of the Firearms Act 1996, which was also made on the basis of the offences to which reference has just been made.

126. Besides the fact that the two orders create offences if they are not complied with, the firearms prohibition order enables a police officer to detain the defendant, to enter any premises occupied by him, or which is under his control or management, or else stop and detain any vehicle occupied by him or under his control, and to conduct a search of the defendant, the premises or the vehicle. Such stopping, detaining and searching can occur by the police officer for the purpose of determining whether or not the defendant has committed any offence.

127. These prohibition orders are not time limited and remain in place until they are revoked.

128. According to an assessment undertaken on 12 November 2018, the defendant would have available to him a series of programs and services in the community, by reason of his supervision by the Community Corrections Office. These would include EQUIPS foundation, addiction and aggression programs and also referral to community-based alcohol and other drug treatment programs and mental health services.

129. The defendant has not committed any serious terrorism offence, nor has any of his offending been committed in circumstances where there has been any association with any terrorist organisation or any ideology or religion at all.

130. It cannot be doubted that the defendant has a very poor criminal history which includes acts of violence. He is at high risk of committing further acts of violence whilst in the community.

131. However, the Court is not considering making an order which relates solely to acts of violence. What the Court is being asked to consider is the risk of the defendant committing a serious terrorism offence.

132. The experts assess that risk as low to moderate. As well, they assess that the real risk is that the defendant would only engage in the commission of a serious terrorism offence in circumstances where, by reason of his vulnerable personality, he is influenced to do so by a malign individual.

133. Any prediction of future conduct and any assessment of the likelihood of any future conduct coming to fruition is inherently uncertain. After all, the Court is engaged in a predictive exercise about human behaviour, in circumstances where the type of behaviour is necessarily irrational.

134. Having regard to all of the evidence, including the expert opinions, I am simply unable to accept that I should be satisfied there is any real risk that the defendant will engage in conduct which would constitute a serious terrorism offence if he is released into the community without any supervision under the THRO Act. This assessment is based on consideration of the conduct to which the State has referred (which has been detailed in this judgment), with the lack of serious commitment by the defendant to any religious or ideological cause. Put differently, in the way in which the THRO Act is expressed, any risk that the defendant may engage in serious terrorism offences is not unacceptable.

135. It follows from that conclusion that I am not persuaded 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 the THRO Act.

136. In those circumstances, the State has not satisfied me that the Court has the power to make an ESO against the defendant. The preconditions set out in s 20(d) of the THRO Act have not been satisfied.

Conclusion

138. The proceedings must be dismissed.

Orders

139. I make the following orders:

1. Amended Summons dated 2 July 2019 is dismissed.

**********

Decision last updated: 12 July 2019