State of New South Wales v RC (Preliminary)

[2019] NSWSC 734

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v RC (Preliminary) [2019] NSWSC 734
Hearing dates:	17 and 18 April 2019
Date of orders:	18 April 2019
Decision date:	21 June 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	Reasons published
Catchwords:	HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – extremist ideology developed while in custody – serious threats of extremist violence against law enforcement officers and others – no evidence of violent extremism in the community – order granted
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Terrorism (High Risk Offenders) Act 2017 (NSW), ss 7, 10, 20, 23, 25, 27
Cases Cited:	State of NSW v Ceissman [2018] NSWSC 508
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) RC (Defendant)
Representation:	Counsel: M McHugh SC; A Mykkeltvedt (Plaintiff) M Johnston SC; A Wong (Defendant)   Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/55501
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the name of the defendant is suppressed.­­

Judgment

1. HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 19 February 2019 against the defendant, RC (“the defendant”), seeking interim and final orders pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”).

2. The orders sought by way of interim relief are to the effect that the defendant be subject to an interim supervision order (“ISO”) for 28 days commencing on 25 April 2019, to be renewed every 28 days for a maximum period of three months. The summons also seeks an order appointing a psychiatrist and/or psychologist to examine the defendant and furnish reports to this Court and directing the defendant to attend those examinations. As well, it seeks an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that suppresses the name of the defendant, or in the alternative, prohibits the publication of the defendant’s name.

3. By way of final relief, the summons seeks an extended supervision order (“ESO”) for a period of three years and an order that the defendant be obliged to comply with conditions set out in a schedule to the summons. Finally, the summons seeks orders that access not be granted to the Court’s file to a non-party for any document without leave of a Judge of the Court and with prior notice to the parties.

4. The defendant opposes the interim and final orders sought and, should an ISO be made, some of the proposed conditions to be attached to that order. The other orders sought are not opposed.

5. This is a preliminary hearing, for the purpose of considering the claim for the interim orders. The application for interim orders was heard by me on 17 and 18 April 2019. As the defendant’s total sentence was about to expire, I made orders on the latter date and reserved my judgment, which I now deliver.

The application

6. On 2 July 2018, the defendant received an aggregate sentence of 15 months with a non-parole period (“NPP”) of 10 months, for two offences pursuant to the Crimes Act 1900 (NSW), being aggravated assault with intent to take/drive a motor vehicle in company pursuant to s 154C(2) and demand property in company with menaces with intent to steal pursuant to s 99(2) (“the index offences”). The NPP expired on 25 November 2018 and the total sentence on 25 April 2019.

7. On 5 July 2018, the defendant was advised in writing by the NSW Crown Solicitor’s Office that an application pursuant to the Act was being considered. Prior to the expiration of the NPP, the Commissioner for Corrective Services made an application to revoke parole. On 30 November 2018, the defendant advised that he did not wish to appear before the State Parole Authority and that he intended to serve out the entirety of his sentence in custody. He wished to be released unconditionally. At that stage, he intended to resume living with his mother in Albury.

The defendant’s background

8. The defendant is an Aboriginal man, aged 19 years. Aspects of his background may be gleaned from reports tendered with the application. The difficulties he faced in his childhood and adolescence were perhaps best summarised by Dr Kerri Eagle, forensic psychiatrist, who earlier this year, at the request of the plaintiff, reviewed much of the material presently before the Court. She stated:

“On the information available, [RC] appears to be a young Aboriginal male who has had a childhood characterised by possible trauma; fragmentation of care; early exposure to antisocial influences and a lack of prosocial male role models; disrupted education and learning and early involvement in crime and substance use. As a result he has spent a substantial proportional of his adolescence in correctional settings including juvenile justice institutions and subsequently prison. This has increased his exposure to antisocial and violent peers; perpetuated his experience of trauma (with repeated segregation and punitive discipline); and further disrupted his education and personal development.”

9. The defendant was born in Adelaide. His parents separated early in his childhood. Apparently he has had limited contact with his father since then. His mother had three more children and the family relocated to Albury, where his mother continued to reside, until recently. The defendant is reported as having a close relationship with his mother, who has been supportive of him but was unable to effectively impose discipline on him in his earlier years. A later partner of his mother, who was the father of one of RC’s siblings, became a step-father figure to the defendant. However, he committed suicide in 2016, while the defendant was in custody.

10. The defendant’s first court appearance was in the Children’s Court, in October 2013, when he was aged 14. He received a 9 month control order with a NPP of two months for multiple counts of serious property offences. There were also three redeterminations of bail, following bail breaches.

11. The defendant’s first matter of violence was in December 2014, when, at the age of 15, he was found guilty for a charge of steal from the person, as well as for multiple serious property offences. He ultimately received a 7 month control order with a 4 month NPP, one of his conditions of release being that he participate in drug and alcohol counselling as Juvenile Justice considered necessary.

12. In 2015, when still aged 15, the defendant was convicted of armed robbery. He was sentenced in the Albury District Court to a 14 month control order with a NPP of 7 months, with conditions, including one in identical terms to the earlier condition in relation to substance abuse counselling.

13. Thereafter, the defendant continued to accumulate findings of guilt and convictions for serious property offences. In 2016, he was found guilty of various offences in the Wodonga Children’s Court, the most serious being burglary, theft and assault in company. These are his only Victorian matters.

14. In 2017, when aged 17, the defendant was dealt with for possession of an unauthorised pistol, again receiving a control order. Apparently, it was a replica pistol. The defendant is the subject of a firearms control order as a consequence of this offence. The index offences, committed in 2018 when he was aged 18, attracted his first and only sentence of imprisonment. They involved the defendant and a co-accused holding up and threatening the victim with a knife. Later that day, the defendant, again with a co-accused, threatened another victim with the knife, demanding he hand over his wallet and keys. The offences were committed whilst the defendant was on parole.

15. In all, over the last 6 years, the longest period the defendant has spent in the community is approximately 8 months, which was immediately before his most recent custodial sentence. In primary and high school he was suspended multiple times and truanted frequently. The various control orders imposed on him by the Children’s Court, without exception, included a condition of attending school, indicating that his attendance was an issue.

16. The defendant commenced using drugs and alcohol when he was aged around 13 or 14 years, thus roughly coinciding with the onset of his criminal behaviour. His drug of choice was methylamphetamine, commonly known as “ice”. He was reported as using ice and cannabis when last released. However, as at October 2018, he claimed that he had not used it for “some months”, in spite of its availability in the prison system.

17. As to the defendant’s mental health, he had his first reported episode of psychosis in 2014. It was thought to be drug-induced, but there was also a differential diagnosis of schizophrenia. In 2017, he reported auditory and some visual hallucinations, as well as having paranoid and persecutory ideation. He was prescribed anti-psychotic medication, Respiradone, which he continues to receive. He does not presently report psychotic symptoms. His father reportedly suffers from schizophrenia and an uncle has a mental illness.

18. The defendant has also been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and, historically, a conduct disorder. In 2017, he was diagnosed with a general anxiety disorder, for which he was prescribed fluoxetine, which he continues to receive. He has difficulty sleeping, for which he is prescribed Mirtazapine.

19. The defendant has a history of self-harming behaviour, including swallowing metal items.

20. Unsurprisingly, given his age and the proportion of his teen years in custody, he has no employment history.

The defendant’s history of threatening violence and violent terrorism

21. Apart from the behaviour that resulted in criminal convictions, the defendant is reported as having a history of threatening violence, particularly against figures of authority. When in detention and aged around 13 and 14, he was reported to have made threats on multiple occasions to kill judicial officers and Juvenile Justice senior and junior staff members. Some examples are set out in the Risk Assessment Report.

22. The earliest such reference is to an observation made of the defendant on 14 November 2015, when he was aged 16, whilst he was in a detention centre, watching television coverage of terrorist attacks in France. The defendant expressed a desire to be there and be a part of “ISIL”, because he is a “devil child” and he “is bad”.

23. In all, the report details twenty-six incidents involving the defendant making terrorist threats, expressing a desire to be present at, participate in or perpetrate terrorist incidents, identifying as a terrorist or expressing a desire to join Islamic State, or making provocative drawings. Some examples are in July 2016 he expressed a desire to “pledge to ISIS” and “slit necks”. On another occasion, authorities found a photo of the defendant performing what is alleged to be an ISIS salute. Drawings located in the defendant’s property whilst in detention included a plane flying into a building marked “AFP” and a person preparing to behead another person, with the words “Islamic State” and what appears to have been “God is great” in Arabic.

24. I note that there is no evidence that the defendant has engaged in any terrorist acts during his occasional periods in the community around or after that time. However, he has claimed to have attempted on-line contact with individuals known to have Islamic extremist views, but has not provided further information of these contacts.

25. The most recent incident was on 16 June 2017 when, whilst in detention, the defendant was asked about a “significant amount of Islamic State-inspired graffiti written on the chalk board”, which included the words: “ISIL, ISIS, Behead those who dog the brothers, Abu Baker of Islamic State, Bring the Kalifate, Islamic State of Iraq, Fuck the infidels Behead them all”. The defendant admitted having written it, because “I had to get all the bad things out of my head”.

26. This episode is useful, in my view, in demonstrating an interplay between such terrorist thinking, the defendant’s drug abuse, mental health issues and an unfocussed desire to hurt others. Sixteen days earlier, on 30 May 2017, he reported “feeling scattered” and requested a psychiatrist. He said at times he “feels like hurting others” and that it is often unpredictable when he feels that way. Eleven days earlier, on 5 June 2017, he reported some ongoing paranoia and volatility, which he attributed to problematic substance abuse.

27. Three days after the incident, on 19 June 2017, the defendant explained that he gets “hyped up” when listening to the TV or radio and does not realise he is writing or saying things such as what he wrote on the chalk board about ISIL. On that occasion, he denied supporting ISIL or supporting their ideology.

28. At some point over the same period, it appears that the defendant adopted the Muslim faith, in particular, the Sunni Muslim faith, although there appears to have been a degree of prevarication. There are references in the material to him receiving visits from Imams in 2017, whilst in custody, but in November 2017, stating that he had abandoned the Muslim faith. A year later (November 2018), he said he was still following the Muslim faith and was observed to be praying five times a day.

29. There is no evidence of the defendant engaging in any form of violent extremism when he was last residing in the community, which was for about 8 months from 26 August 2016 to 5 May 2017. Similarly, there is no evidence of the defendant either continuing to hold extremist views or expressing a desire for violence, since he has been in prison. He has explained this change as consequent to him being advised by fellow prisoners that Islamic State is “wrong”, prompting him to review his earlier beliefs.

30. In September 2018, the defendant said to the authors of the Risk Assessment Report, by way of explanation for his behaviour over that earlier period, that he had been reviewing online propaganda, including beheading videos, and had made contact on-line with Islamic extremists.

31. The authors noted that, since mid-2017, he had not engaged in further behaviour of concern and that he does not seem to hold any strong ideological affiliation with Islamic extremism. However, during their interview of him in September 2018, he made inquiries about Goulburn Correctional Centre, stating he wanted to be transferred there. He said he had heard it is run “full sharia with whipping and everything”. The authors said it was the only time in the four hours of interviews of the defendant that he appeared “highly reactive and excitable”, saying he wanted to live under sharia law.

The relevant legislative provisions

32. The test for the making of an interim supervision order is set out at s 27 of the Act, which provides:

“27   Interim supervision order

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

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

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

33. Section 27(a) is satisfied: the defendant’s sentence expires on 25 April 2019.

34. Section 27(b) effectively requires the Court to determine whether the supporting documentation would, if proved, justify an ESO. If it does, the power to make an ISO nevertheless remains discretionary.

35. Section 20 of the Act sets out the requirements of which the Court must be satisfied if the Court is to exercise its discretion to impose an ESO as follows:

“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.”

36. Subsection 20(d) is qualified by s 21.

“21   Determination of risk

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

37. The term “a serious terrorism offence” is defined in s 4 to mean an offence against Pt 5.3 of the Criminal Code (Cth) for which the maximum penalty is 7 or more years of imprisonment.

38. In State of NSW v Naaman (No 2) [2018] NSWCA 328 at [35], the Court held that for the purpose of determining whether a threat of action is a “terrorist act”, one asks whether the threatened action falls within the definition of “terrorist act” in s 100.1 of the Code; in particular, it must satisfy both pars (b) and (c) of the definition, that the acts must be done, or the threats made, with the intention of both pars 100.1(b) and (c), where:

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

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

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

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

39. The defendant is an “eligible offender” as defined in s 7, being an offender over 18 years of age serving a sentence of imprisonment for NSW indictable offences, pursuant to the definition of that term in s 4 of the Act, which is as follows:

“NSW indictable offence means an offence against a law of the State for which proceedings may be taken on indictment (whether or not proceedings for the offence may also be taken otherwise than on indictment).”

40. Although the index offences for which the defendant was serving sentences were dealt with summarily in the Local Court, they were indictable offences. Accordingly, s 20(a) is satisfied.

Procedural requirements: s 20(b)

41. The procedural requirements of Pt 2 of the Act are outlined in s 23, and are satisfied. The application was made while the offender was in custody serving a sentence of imprisonment for a NSW indictable offence (s 23(1)(a)) and it was made within the last 12 months of the defendant’s custody (s 23(2)).

42. Section 23(3)(a) provides that the application must be supported by documentation that addresses each of the matters referred to in s 25(3). The application was supported by the relevant reports, which are considered below.

A convicted NSW terrorism activity offender: s 20(c)

43. The term “a convicted NSW terrorism activity offender” is defined in s 10 of the Act to mean a person serving a sentence of imprisonment for a NSW indictable offence who, pursuant to subsection s 10(1)(c):

“(i)   is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or

(ii)   has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.”

44. Section 10(1A) provides:

“Without limiting subsection (1)(c):

(a)   advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following:

(i)   making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(ii)   using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(iii)   making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and

(b)   an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following:

(i)   networking or communicating with the person, group of persons or organisation,

(ii)   using social media sites or any other websites to communicate with the person, group of persons or organisation.”

45. The plaintiff contends that the material before the Court establishes that the defendant has made statements advocating support for a terrorist act or violent extremism pursuant to s 10(1)(c)(i). Counsel for the defendant conceded that historically there is evidence of him making statements while in juvenile detention that are capable of being viewed as advocating support for a terrorist act or violent extremism.

46. The defendant’s history does not conform to what might be termed the usual profile of a terrorist, in the sense that there is no evidence of him expressing political or social objectives to be achieved by terrorist threats or acts. There is, however, evidence of at least a superficial adherence to an ideology.

47. Some of the defendant’s actions in 2016 and 2017 that involved an advocacy of violent extremism, on their face, could come within the relevant parts of the definition of a “terrorist act” in s 100.1 of the Code, namely, “a threat … made with the intention of advancing a political, religious or ideological cause; … with the intention of … intimidating … a section of the public”. An example is the writing he chalked on the blackboard whilst in a detention centre on 16 June 2017, promoting of Islamic State and threatening to behead “the infidels”. However, his explanation that he was “getting bad things out of his head” is capable of an interpretation that it was not meant as a threat that came within the statutory definition of a “terrorist act”.

48. I am satisfied that there is material to the effect that the defendant has previously made a statement advocating support for violent extremism.

49. Accordingly, it is appropriate to consider whether, adopting the relevant terms of ss 20(d) and 27(b) and recalling s 21 of the Act, the supporting documentation to the application would, if proved, be capable of satisfying the court to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

50. In undertaking this exercise, as this is a preliminary hearing, the material on which I make my determination is untested and incomplete. I am required to assume that the supporting material is “proved”. If there is to be a final hearing, the Court at that stage will determine the reliability of the material, together with the further reports.

Section 25(3) matters

51. In determining whether to make an ESO, the Court must have regard to the matters in s 25(3), in addition to any other matters it considers relevant. These matters are now considered.

Section 25(3)(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

Section 25 (3)(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

Section 25(3)(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

52. It is convenient to consider these three matters together. There are two relevant reports in the plaintiff’s material, being a Risk Assessment Report, dated 4 October 2018, which was prepared by forensic psychologists Ms Naomi Prince and Ms Filipa Abreu, and a forensic psychiatric risk assessment report dated 4 January 2019, prepared by Dr Kerri Eagle. The authors of both reports expressed reservations about the reliability of clinical tools intended to evaluate the risk of a person engaging in violent extremism and took different evaluative approaches to this task.

53. In the Risk Assessment Report, the authors utilised actuarial tools that rate risk on a scale. In her report, Dr Eagle cautioned against such approaches and instead opted for what she termed “a structural judgment approach”. While one of the tools utilised by Prince and Abreu was of this type, namely, the Violent Extremist Risk Assessment – version 2 revised (“VERA - 2R”), Dr Eagle preferred a different test, the Terrorist Radicalisation Assessment Protocol (“TRAP 18”).

54. However, the different approaches appear to be of little moment. Dr Eagle was invited to compare her primary report with that of Ms Prince and Ms Abreu, and regarded the outcomes as broadly consistent.

Risk Assessment Report

55. Ms Prince and Ms Abreu examined the defendant, with his verbal and written consent. They interviewed him for four hours over 20 and 21 September 2018. However, the defendant’s level of participation was not ideal. Although he “made a sustained effort to remain focussed and attentive to interview content”, there were only a few instances of “genuine engagement”. The end result was that the interview data was of “limited value”.

56. They noted that the defendant had been previously assessed on 16 June 2018 as to his risk of general reoffending, utilising a tool known as the Level of Service Inventory-Revised actuarial risk assessment tool. It indicated a moderate to high risk of general reoffending.

57. The authors used the Violence Risk Scale test (“VRS”) to assess the defendant’s risk of violence generally, assessing both static and dynamic risk factors. By comparison with a group of 918 federally-sentenced Canadian inmates who had been rated on the VRS, 49.5 per cent of those who obtained a similar score to the defendant’s score were criminally convicted of a new violent offence within 4.4 years. Accordingly, the authors placed the defendant in the high category of risk of violent offending.

58. As noted, the authors also applied the VERA - 2R to the defendant, which is used to assess the risk of violent extremism. They described it in these terms:

“[It] provides a structured professional judgment assessment of the risk of extremist violence across multiple domains of; Beliefs, Attitudes & Ideology; Social Context & Intention; History, Action & Capacity; and Commitment & Motivation. It is a systematic, transparent and comprehensive protocol using empirically supported indicators determined by collaboration with law enforcement, intelligence, national security, and corrections professionals working in the field of violent extremism. VERA 2R provides criterion definitions for each of the 28 risk indicators and 6 protective factors which allow a differential judgment to be made across each of three risk levels (low, medium, high). An additional 11 indicators add support to the estimate of risk of extremist violence and assist case formulation.”

59. The defendant was assessed as being in the low-moderate range of risk of extremist violence offending. However, this result was qualified by him being “guarded in interview and conscious of not providing the author any information he believed was not already available”.

60. As well, the authors considered the defendant’s risk was “highly variable over time, such that any category of risk may have little value or meaning”. In particular, the authors identified a number of “indicators of concern”. These included information suggesting that he had developed an extremist ideology whilst in custody, his limited guidance from religious scholars and his attempts to seek out religious extremists in custody and online.

61. They observed that the defendant’s primary risk is reactive aggression to perceived mistreatment and prejudice, particularly in the context of juvenile detention, in the nature of extreme violence and terrorism-related threats.

62. The authors contemplated risk scenarios. The defendant is “significantly impacted” by his peer group and is highly susceptible to influence. If he again attempts to contact known Islamic extremists, this may influence his behaviour. His history of ceasing psychotropic medications and resuming illicit substance abuse when he returns to the community may reactivate feelings of persecution and increased impulsivity. This combination may make him susceptible to suggestions from persons with extremist views who promote violence, who he may contact following his release.

63. The authors identify interventions that would tend to reduce the defendant’s risk level of reoffending and potential for violent extremism. These include pro-social skills such as enrolment in educational or vocational training and/or employment, and programs to assist with “emotional regulation”, budgeting and problem-solving. Additional interventions include monitoring and maintenance of his psychotropic medication, alcohol and drug services, and mental health management. The authors considered that the defendant would also benefit from psychological services to assist with developing insight into his personal risk factors, relevant to violent extremism and the monitoring of his peer relationships.

64. The authors considered that the defendant would qualify for the Violent Offender Therapeutic Program (“VOTP”), which is an intensive therapeutic community program for reducing violence.

Report of Dr Kerri Eagle

65. Dr Kerri Eagle prepared a psychiatric risk assessment report in respect of the defendant. She did not clinically assess him, which she acknowledged was a significant limitation on her opinions. It was clear from her report that her strong preference was to have had that opportunity. In evidence, she said that she was not told the reason that the defendant was unavailable for a clinical assessment. Counsel for the defendant informed the court that the defendant had not been invited to be assessed.

66. Dr Eagle expressed the opinion that it was likely that the defendant has a psychotic illness such as schizophrenia, but in the absence of a clinical assessment she could not be confident of that opinion. She thought it less likely that the psychosis was drug-induced, because the symptoms appeared to last well beyond periods of drug use. Another factor was that his family history of mental illness predisposed him to having a mental illness.

67. She also diagnosed the defendant, on the material, as having a severe substance use disorder and noted his use of ice and cannabis appeared to escalate when he was in the community.

68. Dr Eagle considered that the defendant would likely satisfy the criteria for an antisocial personality disorder, although a personality disorder would need to be confirmed by a longitudinal assessment in his adulthood.

69. While she could not confirm the defendant’s previous diagnosis of ADHD on the basis of the material available, Dr Eagle noted that it was consistent with a documented history of impulsive behaviour. She also noted that he had been diagnosed with a conduct disorder in his adolescence.

70. Dr Eagle utilised the TRAP 18, which she described as a “structured risk assessment template”, developed to assist in the assessment of persons considered to be at potential risk of lone actor terrorist attacks. However, she qualified its reliability by observing the following:

“The tool’s effectiveness in identifying potential lone actor violent extremists has not yet been reliably validated.”

71. Dr Eagle described the TRAP 18 in these terms:

“The TRAP 18 consists of two sets of variables. The first eight warning behaviours were developed to identify patterns of proximal risk for intended or targeted violence (pathway; fixation; identification; novel aggression; energy burst; leakage; last resort; and directly communicated threat). The second ten distal characteristics were derived from the empirical and theoretical research on lone actor terrorists (personal grievance and moral outrage; framed by an ideology; failure to affiliate with an extremist group; dependence on the virtual community; thwarting of occupational goals; changes in thinking and emotion; failure of sexually intimate pair bonding; mental disorder; creativity and innovation; and criminal violence). It has been suggested that the distal factors, without warning behaviours, suggest that a higher level of awareness or monitoring of a persons action is warranted. Distal factors combined with warning behaviour warrant active management of the risk.”

72. Dr Eagle found there were no current proximal warning behaviours, since the defendant’s threats, pathological preoccupation with terrorist organisations and identification with terrorist groups such as ISIS were confined to 2016 and 2017. However, he displayed a number of distal characteristics. These included the defendant’s sense of personal grievance and moral outrage; in 2016 and 2017 he had engaged in ideological framing to justify violence; he had failed to achieve any educational or occupational goals; his change in his thinking and behaviour in late 2015 and 2016 whereby he started to make threats of violent extremism; his mental health issues; and his history of violent criminal offences. Dr Eagle also referred to the defendant’s failure to sustain sexually intimate pair bonding, conceding in cross-examination that, given his limited time in the community, it was hardly a relevant factor.

73. In a third report, dated 16 April 2019, Dr Eagle elaborated on the TRAP 18 results. She said that a “cluster” of distal characteristics warrants continuous monitoring and the presence of warning behaviours suggests that the case should be actively risk-managed in response to a potentially imminent risk.

74. Dr Eagle also had regard to what she termed “historical factors” and “clinical factors”. Historical factors include matters such as his mental health issues, history of violence, traumatic experiences and substance use. They are unchangeable and correlate with a higher risk of longer-term violent reoffending. Dr Eagle was of the opinion that the defendant has a high loading of historical factors and therefore “a significantly increased baseline risk of violent reoffending over the longer term”.

75. Clinical factors are those that have been found to be associated with violent offending, such as instability, violent ideation and recent problems with insight. They are potentially changeable or modifiable by intervention and are associated with an increased risk of violent reoffending in the short to medium term. Dr Eagle concluded the following:

“Overall, on the information available [RC] appears to have a moderate loading of clinical factors for violence. These factors indicated an elevated risk of violence over the short to medium term subject to an effective risk management plan.”

76. Overall Dr Eagle rated the defendant as being at risk of violent reoffending in the medium to long term, unless his risk factors are able to be adequately addressed in a risk management plan.

77. As to the level of risk of the defendant being involved in acts of terrorism, Dr Eagle considered that he was less likely to engage in group-based terrorist acts, and the absence of proximal warning behaviours over the last 12 months suggest that there is not an imminent risk of him engaging in a “lone actor” terrorist act. However, the distal characteristics warrant monitoring in a risk management plan for any escalation of risk that may emerge, for example by the emergence of proximal warning factors.

78. Dr Eagle’s opinion as to potential offending scenarios in which he might engage in terrorist acts or violent extremism centred around the combination of a personal grievance or an aggravation of prior personal grievances, in combination with an exacerbation of his mental illness, either from substance abuse or stress. She stated:

“… it is difficult to predict any offending scenario with certainty. As indicated by the literature, terrorist acts are likely the result of a confluence of personal, political and social drivers. However, the most likely offending scenario, given the information available, is that in the context of a further personal grievance (possibly associated with perceived persecution by authority figures) or an aggravation of prior personal grievances and an exacerbation of his mental illness (from substance use or stress), he would likely experience increased anger and emotional instability. The use of substances would exacerbate his emotional instability and increase his propensity for impulsive aggressive behaviours. This may give rise to an increased identification with extreme Islamic groups and manifest in an identification with the aggressive behaviours of such groups. As a result [the defendant] may attempt to engage in violence justified by extreme Islamic ideology towards others.”

79. The plaintiff submitted that the defendant’s mental health has recently caused concern and noted that he has indicated that he will not continue his medication in the community which, it was submitted, elevated the defendant’s risk.

80. The defendant, on the other hand, pointed to the lack of recent proximal warning signs in relation to any form of violent extremism. Further, counsel pointed to evidence from Dr Eagle that the defendant’s risk factors were largely static or historical, and generic factors that are not necessarily linked to persons who pose a risk of violent extremism. While counsel conceded that the defendant not taking his medication was a risk factor, he submitted that the Mental Health Act 2007 (NSW) regime would be a less restrictive way to manage the defendant’s compliance with his medication regime.

Section 25(3)(j)   the offender’s criminal history

81. The defendant’s criminal history has been summarised earlier in this judgment. There has been a significant escalation in the seriousness of the defendant’s criminal activity over the relatively brief period of time that it covers, from property offences to serious matters of personal violence, such as armed robbery, and a firearm offence. Another relevant feature is the sheer volume of serious property matters, particularly aggravated break and enters.

82. As noted earlier, there is material to the effect that the defendant has made threats of serious violence to authority figures that have not been the basis of criminal charges. Although that reported behaviour does not expressly come within an aspect of s 25(3), it is a relevant matter.

83. The threats to authority figures appear to be confined to 2013 to 2015, when the defendant was in his younger teens, up to and including the age of 15. In isolation, this might be dismissed as a discrete period of extreme anti-authoritarian juvenile rebellion. However, viewed differently, the cessation of those threats coincided with the emergence of his threats and expressions of a terrorist nature, suggesting a logical progression from the earlier phase to a targeting associated with terrorist thinking.

Section 25(3)(h)   the likelihood that the offender will comply with the obligations of an extended supervision order

Section 25(3)(i)   the offender’s compliance with obligations while on conditional liberty

84. The defendant has a history of breaching conditional liberty. According to his criminal record, in his early teen years, he repeatedly breached bail conditions. The index offences were committed whilst he was on parole.

85. The plaintiff conceded that, although it seeks an ESO, it may be difficult to ensure the defendant’s compliance with it.

Section 25(3)(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

86. As noted, the defendant has a history of professing such beliefs and threatening to perpetrate serious violence in a terrorism context. An absence of such behaviour since mid-2017 and a professed acceptance that he was misguided is encouraging, but does not appear to be accompanied by significant insight, suggesting it may not be a permanent move away from that belief system. His comment in September 2018, that he wished to be transferred to Goulburn Correctional Centre so that he could be a part of what he perceived to be a sharia lifestyle in prison, supports this concern.

Section 25(3)(m)   any other information that is available as to the likelihood that the offender will commit a serious terrorism offence

87. The plaintiff relied upon the risk assessment report and the reports of Dr Eagle, as well as her evidence, submitting that there is a significant risk that, if released without conditional constraints, the defendant will seek out on-line contact with extremists and could be drawn into being part of larger extremist action, given his vulnerability arising from his mental illness, drug use and susceptibility to influence from others.

88. The defendant submitted that his risk is reduced in the community, as although the threats made in custody were extremist in nature, they were in reality motivated by grievances with the custodial system.

89. While it appears from the material that the threats of extreme violence absent the terrorism context were so motivated, they were so disproportionate and objectively extreme that it is little comfort that by being in the community, he will be removed from that particular motivating factor. The defendant’s complete profile, as portrayed in the reports, is such that whatever his living situation, he has the capacity to be influenced and provoked into at least a threat of extreme violence, particularly if destabilised by mental health issues, drug use and/or peer influence.

Conclusion

90. The fact that the defendant was not forthcoming to the authors of the Risk Assessment Report and his expression of a wish to be transferred to Goulburn Correctional Centre undermine his claims that he no longer holds the extremist views that he had in 2016 and 2017. Even if he genuinely believed that to be true, given his past fluctuations in his beliefs and his extreme vulnerability in the community, one cannot be confident that he would not revert to such beliefs if he is residing back in the community without supervision.

91. Accordingly, I am satisfied that the supporting documentation to the application would, if proved, be capable of satisfying the court to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

92. Central to my finding is the defendant’s vulnerability arising from his mental illness, history of accessing drugs when in the community and social dysfunction, in the context of his long-standing pattern of reactive violence to actual or perceived persecution, including making threats of violent extremism. Although he has recently eschewed such beliefs, the information available suggests an absence of significant insight into the reasons that he had previously embraced them and a potential for him adopting them again. An additional factor of concern is the defendant’s apparent reluctance to be forthcoming about his beliefs and state of mind generally. Although such reluctance is understandable, given his turbulent history in recent years, it nevertheless deprives decision-makers of critical information in assessing his current risk status.

The residual discretion

93. I am concerned that by imposing conditions on the defendant’s release from custody in the form of an ISO, he is being set up to fail. The defendant’s history suggests a depressing inevitability that his transition to a law-abiding lifestyle in the community will be replete with false steps, at a minimum in the form of breaches of reasonable conditions. If he had been released on parole, the consequences of such breaches that did not generate a separate criminal charge, while serious, would have entailed a response with an inbuilt degree of flexibility and, at worse, a return to custody to complete his sentence. A breach of conditions of an ISO however, are far more serious, since they may constitute an offence punishable by a sentence of up to 5 years imprisonment; s 30 of the Act.

94. I am satisfied that the degree of risk posed by the defendant committing a serious terrorism offence if released unconditionally is such that I decline to exercise my discretion in the defendant’s favour: State of NSW v Ceissman [2018] NSWSC 508 at [38].

The proposed conditions of the ISO

95. So far as is reasonably possible, I have re-fashioned the terms of some of the proposed conditions, to introduce a degree of flexibility in order to minimise the risk of the defendant being inappropriately sanctioned for a breach.

96. The plaintiff submitted that the defendant’s preferred place of post-custody residence, namely, Albury, was unsuitable, because of the peer group with which he had previously associated and the dysfunctional nature of his mother’s household. However, his mother has recently relocated to Wagga, expressly so that the defendant could reside with her at a location more acceptable to the authorities. At the time of the hearing, the Department of Corrective Services had not yet assessed the physical suitability of that accommodation, but in any event, considered that Wagga did not offer the range of services that the defendant required, if he was to successfully live back in the community.

97. The plaintiff proposed that the defendant be required to reside at an Integrated Support Centre (“ISC”), which is a residential facility in the community operated by the Department of Corrective Services. The particular ISC that was proposed is situated in Sydney’s western suburbs, relatively close to an Indigenous agency that would be able to provide a range of services to the defendant, including mental health services and drug and alcohol services. A placement is available for the defendant at the ISC.

98. The defendant opposed the proposal. The ISC accommodates around 26 men at any one stage, including high risk sex offenders. The defendant would be significantly younger than the other residents and has previously made threats against sex offenders. As well, there is a risk of susceptibility to influence in terms of violence and drug use. The defendant had previously been assessed as unsuitable for placement in such a facility.

99. Over the course of the hearing, an alternative option was explored, of the defendant residing in Wagga but not necessarily with his mother, so that he would have the benefit of her proximity without any negative influences of her household. On the material before me, it appears that the defendant’s mother is his only positive support. Therefore a high priority is to facilitate a community option for the defendant that enables him to have the benefit of her support.

100. Although a suitable facility was not identified at the time of the hearing, I was satisfied that there was a reasonable prospect of suitable accommodation in Wagga being obtained in the immediate future. Accordingly, the residency condition requires the defendant to live in Wagga at an address approved by his enforcement officer. If no suitable alternative address is located, he is to reside with his mother.

101. I confirm the orders made on 18 April 2019:

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

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

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

(2) Pursuant to s 27 of the Terrorism (High Risk Offenders) Act 2017 the defendant is subject to an Interim Supervision Order commencing on 25 April 2019.

(3) Pursuant to s 28(1) of the Terrorism (High Risk Offenders) Act 2017 the Interim Supervision Order is for a period of 28 days.

(4) Pursuant to s 29(1) of the Terrorism (High Risk Offenders) Act 2017 the defendant is to comply with the attached conditions.

(5) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the name of the defendant is suppressed.

(6)   Access to the Court’s file in this proceeding be restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

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Amendments

04 November 2019 - Minor typographical errors corrected throughout.

Decision last updated: 04 November 2019