State of NSW v Mathers (No 2)

[2019] NSWSC 473

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	State of NSW v Mathers (No 2) [2019] NSWSC 473
Hearing dates:	15 -16 April 2019
Decision date:	29 April 2019
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) An order pursuant to ss 20, 25(1) and 26 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act) that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of the order; and (2) Pursuant to s 29 of the Act, directing the defendant, for the period of the extended supervision order, comply with the conditions set out in the schedule to this judgment.
Catchwords:	HIGH RISK TERRORISM OFFENDER – application for extended supervision order (ESO) – Sovereign Citizen Movement – discussion of statutory preconditions for making an ESO – combination of factors – consideration of discretion not to impose ESO – discussion of disputed conditions – ESO imposed
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	State of NSW v Ceissman [2018] NSWSC 508 State of New South Wales v BG (Final) [2019] NSWSC 200 State of NSW v Mathers [2019] NSWSC 7
Category:	Principal judgment
Parties:	State of New South Wales John Mathers (a pseudonym)
Representation:	Counsel: B Hughes SC and C Palmer P Coady   Solicitors: Crown Solicitors Office Legal Aid NSW
File Number(s):	2018/367595
Publication restriction:	Pseudonym adopted for the defendant

JUDGMENT

Introduction

1. On 16 January 2019, I imposed an interim supervision order (ISO) upon Mr John Mathers (a pseudonym for the defendant), pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). At the same time, I gave reasons for doing so: State of NSW v Mathers [2019] NSWSC 7 (my preliminary judgment). Subsequently, the ISO was renewed at least once.

2. On 15 April 2019, the matter returned to me for a final hearing of the application of the State of New South Wales for the imposition of an extended supervision order (an ESO) of three years’ duration upon the defendant pursuant to the same Act. (Pursuant to s 34(2) of the Act, the plaintiff was precluded, in the circumstances that pertained since the imposition of the ISO, from seeking any more restrictive order.)

3. At that hearing, save for one legal ruling made by me adverse to the defendant that I shall shortly identify, very little of my preliminary judgment was disputed by either party. At the conclusion of the hearing, senior counsel for the plaintiff and counsel for the defendant expressed their contentment with me not revisiting in this final judgment all that I had written previously. Furthermore, the time between the conclusion of the final hearing and the date upon which, pursuant to s 28(1)(a) of the Act, any ISO must conclude, has been reasonably short. For all of those reasons, I shall not be repetitive at all, and proceed on the basis that the reader is familiar with all that I recounted and determined in my preliminary judgment.

Developments since imposition of ISO

4. After I imposed the ISO, it remained suspended pursuant to s 28(6) of the Act, because the defendant remained in custody bail refused on the “blueprints charges” (in a nutshell, the criminal allegation that the defendant downloaded from the internet blueprints for manufacturing plastic firearms by way of a 3-D printer, an item that the defendant possessed at the time).

5. The ISO commenced on 31 January 2019, that being the date upon which the defendant was granted bail on those charges. Contrary, with respect, to the expectation that I expressed in my preliminary judgment, the judicial officer who granted bail did not impose any conditions above and beyond the single requirement that the defendant comply with all of the conditions of the ISO that I had already imposed.

6. Since that time, the supervision of the defendant has proceeded very well. There have been no fresh criminal charges; there have been no alleged breaches of the very strict conditions of the ISO; indeed, there has been no suggestion of even any friction between the defendant and those who have been supervising him. Furthermore, on the two days of the final hearing before me, the defendant sat in court behind his lawyers quietly and courteously.

7. On the other hand, the firm position of the defendant as at the time of the final hearing has hardened with regard to one matter. That was the question of his guilt or otherwise of the so-called “index offence” of which he has been convicted: the sending of the bizarre, intimidating letters to the opposition member of State Parliament (the MP).

8. Despite his plea of guilty in the past, and the seemingly undisputed presence of a DNA profile matching the profile of the defendant on the adhesive tape of the envelope upon which the threats were typed, he now maintains his innocence of that offence.

9. His position is that he was more or less forced by his then lawyer to plead guilty in the Local Court to the matter. As for the DNA material, his thesis is apparently that he was in the habit of handing out material derived from the Sovereign Citizen Movement (the Movement) to persons who visited his jewellery business, and that he did so in envelopes. In other words, I understood the thesis to be that one of the persons to whom he provided that material in an envelope must have subsequently used the envelope (with his DNA previously impregnated on it) to send the threatening material to the MP.

10. I shall return to the significance of that altered position of the defendant later in this judgment.

11. Separately, many psychiatrists and psychologists provided further reports about the risk presented by the defendant. They included Dr Eagle and Dr Pulman, the two medical professionals who assessed the defendant in accordance with the conditions of the ISO; Ms Kocak; and Dr Seidler, a forensic psychiatrist who was qualified by the legal team of the defendant.

12. I do not propose to summarise here all that has been written in those reports. It is enough to say that different experts, applying different tests, and making their own different analyses of documentary history, oral history and impression on interview, come to different conclusions about the level of risk posed by the defendant. For example, at one end of the spectrum, Dr Pulman is pessimistic, and believes that the defendant is of “high risk of committing a serious terrorism offence should he not be subject to an ESO”; at the other end, Dr Seidler possesses a guarded optimism, and assesses the risk of him “committing a future act of terrorist or extremist violence” as “low”.

Disputed statutory pre-condition for ESO

13. As I have foreshadowed above, at the final hearing counsel for the defendant revisited a legal finding that I made in my preliminary judgment (although not developed in oral submissions, the re-visitation of the issue certainly appeared in written submissions, and it was not withdrawn at any stage). It was as follows.

14. At [60] to [63] of my preliminary judgment, I explained why I had come to the view that the defendant fell within the definition of a “convicted NSW terrorism activity offender” pursuant to s 10 of the Act. That was because, in accordance with section 10(1)(c)(i), I considered that the defendant “has previously made [a] statement … advocating support for … violent extremism”.

15. In explaining why I maintain the opinion that the conduct of the defendant does indeed fall within the parameters of that statutory concept, I believe it is pertinent, first, to set out again the entirety of what was contained on the exterior of the envelopes delivered to the office of the MP:

“To The Minister

You are in TREASON ,,, you will be hung untill you are dead

No Mercy , No Prisoners

You are scum”

16. Secondly, I maintain the opinion that there is powerful evidence that the defendant did indeed deliver that message to the MP, the four most significant pieces of which are: the presence of a DNA profile matching that of the defendant on the envelopes; his plea of guilty whilst represented; the absence of any application to withdraw that plea at any stage prior to conviction and imprisonment; and the fact that the envelopes and their contents are entirely consistent with the material of the Movement that the defendant has never disputed downloading and printing off.

17. Thirdly, I also maintain the opinion that, by making and delivering that bizarre, intimidating statement – the thrust of which is that an MP has somehow been judged in absentia to have committed treason, and is to be hanged (and not merely imprisoned) for that offence – the defendant has indeed made a statement advocating support for violent extremism.

18. Breaking that grammatical clause down into its components, in order to demonstrate the thesis: by typing the contents of the envelopes and delivering them, the defendant has made a statement.

19. By delivering and recounting them to their intended recipient – the purported convict – and expressing them by way of blunt declaratory statements, the defendant has advocated support for their contents.

20. By any measure, it is extreme to purport to pronounce a “conviction” for treason upon a Member of Parliament after a secret “trial”.

21. And, finally, the penalty that the message calls for – capital punishment in the form of death by hanging – is unquestionably inherently violent.

22. In short, contrary to the written submissions of counsel for the defendant, I do not resile from the original determination in my preliminary judgment that the statutory precondition for the making of an order relied upon by the State and to be found in s 10(1)(c)(i) has been established.

Disputed central test for ESO

23. No other necessary statutory preconditions having been placed in dispute, that leads one to the central test in s 20(d) of the Act: whether “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”.

Submissions for defendant

24. In resisting that proposition, counsel for the defendant submitted that there was no, or no sufficient, evidence whereby I could be satisfied to the necessary “standard of proof” that the defendant would commit any act of violence generally in the future.

25. In that regard, he emphasised: the lack of convictions for violence in the past; the fact that, in my preliminary judgment, I was not satisfied that the defendant had in the past committed a “terrorist act” as defined; the excellent progress made over the many weeks during which the defendant has been subject to the ISO; the alternative theses recounted in my preliminary judgment with regard to the purchase of the pressure cooker; and the fact that the pressure cooker was never utilised for a criminal purpose, and that the blueprints allegedly downloaded were never utilised to make a plastic firearm. As for the latter, he also questioned whether, in truth, they were “fit for purpose”.

26. In short, his submission was that the sending of the message to the MP was in reality a function of a discrete episode of mental disturbance, not political extremism, that had never occurred before in the life of this man of mature years and would never, I could be confident, occur again.

27. His ancillary position was to invite attention to the component of the crucial test that calls for satisfaction of an unacceptable risk of the defendant committing not just any offence, nor just any offence of violence, but rather “a serious terrorism offence”, as defined by way of s 4 of the Act.

28. He submitted that that definition leads one to the definition to be found in Part 5.3 of the Criminal Code Act 1995 (Cth). And it was said that the central component of that definition (to be found in s 100.1), its “mental element”, is rigorous and precise, and is as follows:

terrorist act means an action or threat of action where:

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

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

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

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

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

29. In other words, I understood the ancillary point to be that, even if I were concerned about the risk of the defendant doing something harmful, or dangerous, or even violent, unless I were affirmatively satisfied to the extent necessary of a risk of an offence of political violence, as defined in the Criminal Code by way of its precise mental elements, I am not empowered to impose any ESO.

Determination

30. That statutory analysis is, with respect, correct. And the criticisms of the evidence upon which this State founds the application have some force. Nevertheless, I consider that the test to be found in s 20(d) of the Act has been established, for the following reasons.

31. First, whatever he may say now, the defendant was certainly at one stage in the thrall of the Movement. So much is established not just by the message on the exterior of the envelopes, which is redolent of the language and philosophy of the Movement. It is also established by what was placed inside the envelopes by the defendant. And it is further established by material that he has posted to the internet, whereby both what he has said and how he has said it demonstrate his connection to the Movement (see, with regard to the offences of which the defendant has been convicted, s 25(3)(j) of the Act).

32. Secondly, the events upon which this application is founded are not in the distant past: to discuss the most important events a little out of chronological order, the pressure cooker was purchased in November 2016; the YouTube video – the title of which mentioned an improvised explosive device (IED) constructed from a pressure cooker – was accessed by the defendant in February 2017; the envelopes were delivered to the MP in March 2017; and the blueprints for the manufacture of plastic firearms were allegedly downloaded in January 2017 (see, again, s 25(3)(j) of the Act).

33. In other words, the application of the plaintiff is not founded on events from long ago from the time of the youth of a mature defendant, or even from several years ago; the earliest significant fact upon which the plaintiff relies occurred less than 26 months ago (see, yet again, s 25(3)(j) of the Act).

34. Thirdly, it is true that in my preliminary judgment I did not express myself to be satisfied that the Movement promotes or explicitly supports political violence. But it is undoubtedly a potent political philosophy, and an unorthodox, indeed radical, one at that. And, as one would expect in light of its fundamental thesis of the illegitimacy and immorality of modern states that derive from the British tradition of parliamentary democracy, the separation of powers, and the rule of law such as the United States of America and Australia, on occasion its adherents have resisted the exercise of State power with violence. Sometimes, that force has been deadly (see s 25(3)(m) of the Act).

35. Fourthly, as I have said, whatever he may say now, I am well satisfied that the defendant did indeed send the envelopes to the MP – itself a serious offence that was judged by the learned sentencing Magistrate to attract an inevitable sentence of full-time imprisonment (s 25(3)(k) of the Act). And although I was not satisfied that they fell within the strict definition of “making a statement advocating support for any terrorist act” in my preliminary judgment, they undoubtedly express a judgement that the gravest political crime known to our criminal law had been committed by a politician, and that the death penalty was to be enacted upon the purported convict. That view was expressed and promulgated by the defendant as recently as around 26 months ago.

36. In other words, although in my opinion not in itself a terrorist act as defined, the fact that it was an act that spoke of fatal violence to be inflicted upon a serving politician for an asserted political crime is highly significant in my current assessment of whether the defendant may engage in the future in an act of political violence as defined in the Criminal Code.

37. Fifthly, in my preliminary judgment, I recounted my impression that emotional disturbance or mental illness of some kind had played a role in the bizarre actions of the defendant. In particular, I expressed the tentative view that the seeming trigger of concern (to the point of obsession) about the alleged “mould problem” could very largely be sheeted home to such an issue. In my opinion, the evidence placed before me since then bears out my original impressionistic suspicion.

38. But it is one thing to accept that, in the context of some sort of personal crisis, the defendant developed a bitter grievance that was based at least partly on delusion, and that was the starting point for much of his behaviour. It is quite another to be confident that such a problem will never arise again, merely because it has only occurred once in his life; to be clear, I do not possess such a confidence.

39. And separately within this consideration of the mental state of the defendant, although I accept the expert evidence that many persons who engage in political violence are not able to be diagnosed with any formal mental illness, the fact that one may have been mentally disturbed is hardly a guarantee that one will not engage in political violence in the future. To express that more simply, although mental disturbance is by no means a prerequisite for the commission of political violence, nor is it an excluding factor.

40. Sixthly, in my opinion the point is soundly made by senior counsel for the plaintiff that the seemingly recently developed refusal of the defendant to take responsibility for the sending of the envelopes to the MP, in the face of powerful evidence to the contrary, is troubling indeed (see s 25(3)(m) of the Act). In my mind, it casts a significant pall over all of the progress that has been made in the past many weeks.

41. Seventhly, it is perfectly true that the mental elements to be found in the Criminal Code with regard to terrorist acts are rigorous and specific. On the other hand, the physical elements of offences to be found there are broad; by way of example, they include doing acts in preparation for a terrorist act. In other words, the risk that I am asked to assess pertains to the possibility of the commission of offences that are in some ways narrow, but in other ways are broad.

42. Eighthly, my satisfaction of the crucial test is based upon a concatenation of factors, much like a circumstantial case in a criminal trial. In other words, it is not a matter of reflecting merely separately upon: the obsessive concern of the defendant about mould at his premises; the purchase of the pressure cooker; the accessing of the YouTube video about an IED made from a pressure cooker; the sending of the envelopes to the MP; the alleged downloading of the blueprints for the manufacture of plastic firearms by a person in possession of a 3-D printer; the downloading of material to do with the Movement; the downloading of a great deal of material about the infliction of injury and death in military contexts; the current refusal to take responsibility for the envelopes; and the possession reasonably recently of prohibited weapons.

43. To the contrary, in a manner well familiar to criminal lawyers and judges, it is a matter of reflecting upon each of those facts in the context of all of the others.

44. Taken as a whole, in my opinion they paint a troubling picture indeed about the risk of what could happen in the future.

30. Ninthly and finally, and speaking very generally of the voluminous psychological and psychiatric material that was placed before me, my own respectful opinion is as follows (see s 25(3)(a)-(c) of the Act).

31. In light of the prior lack of violent offending; the reflection that I believe the defendant has been brought to by his interactions (including incarceration) with the criminal justice system and the regime under consideration of preventative curtailment or deprivation of liberty pursuant to the Act; the very sound progress that has been made by the defendant since his release; the therapeutic and rehabilitative effects of the ISO (see generally s 25(3)(f), (g), (h) and especially sub-s (i)(iii) of the Act) and the opinions of psychiatrists and psychologists taken as a whole, the risk of this man offending is not overwhelming; I certainly am not satisfied that it is high.

32. But I respectfully adopt what was said by Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [27] about an analysis based on, on the one hand, the degree of risk, and, on the other hand, the consequences were that risk to eventuate. In that regard, I believe that I am entitled to take judicial notice of the catastrophic physical and no doubt psychological consequences of the “Boston Marathon bombing”, which is notorious to have been effected by IEDs readily manufactured from two pressure cookers.

33. In short, respectfully contrary to the comprehensive written and oral submissions of counsel for the defendant, reflecting upon all of the evidence placed before me at the stage of the final hearing, I am satisfied that the central statutory test has been established in this case. And in saying that, I have of course borne in mind the statutory mandate that the paramount consideration is the safety of the community: s 25(2) of the Act.

Discretionary refusal?

49. Counsel for the defendant separately submitted that, even if I were satisfied that the pre-conditions for the imposition of an ESO had been established, nevertheless I would exercise my discretion not to impose one, pursuant to s 20 of the Act.

50. In a nutshell, it was said that other regimes of restriction are more apposite, and could just as readily protect the community from any threat (see s 25(3)(g) of the Act).

51. Reference was made to the regime of detention pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) and s 14 of the Mental Health Act 2007 (NSW), whereby mentally ill persons who present a danger to themselves or others can be “scheduled”, and thereby involuntarily detained.

52. I do not accept those submissions. It is true that mentally ill persons who are identified as presenting such a risk can be detained. But the practical issue here is the devotion of a sufficient number of resources, in a sufficiently intrusive way, to ensure (to the extent reasonably practicable) that the risk that I have identified does not eventuate. I do not believe that those steps can be taken pursuant to the Mental Health Act 2007 (NSW), as a matter of sheer practicality.

53. In short, I do not propose to exercise my discretion not to impose an ESO.

Length of the ESO?

54. Having said all that, I do not accept that an ESO of duration of three years should be imposed, as sought by the plaintiff. In light of the many positive factors that I have recounted above and will not repeat, I consider that two years is sufficient, especially bearing in mind that such an order may be extended, or reapplied for by the plaintiff. Senior counsel for the plaintiff did not seek to argue strongly against the possibility, when I raised it at the final hearing.

Disputed conditions

55. Having determined that the test for the imposition of an ESO has been established; that I should not exercise my discretion not to impose it; and that the length of the ESO should be two years, I turn now to a discussion of conditions that were placed in dispute by counsel for the defendant. Due to the focused submissions of each party, I can be concise.

56. As for conditions that were not placed in dispute, I have considered them for myself, and am of the view that they are appropriate.

57. Proposed condition 1 was disputed. It requires the defendant to accept supervision by both the NSW Police Force and Corrective Services.

58. Senior counsel for the plaintiff explained that both the police and the Department were required to ensure effective monitoring in accordance with their respective specialities and resources.

59. Counsel for the defendant stated that there was no evidence of a “resource issue” such as to require additional supervision by the police. Further, it was submitted that the condition has been shown to be oppressive during the ISO, as indicated by the Offender Inmate Management System (OIMS) notes. He also submitted that, if a search is required, the search powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) would suffice. In addition, it was said that that Act would provide safeguards to the exercise of those powers.

60. Turning to my determination, it may be accepted that the defendant has found the conditions of the ISO onerous and intrusive. I am also prepared to accept, for the sake of argument only, that there has been a degree of “double enforcement” in this case. But in light of aspects of the troubling picture that I shall not repeat yet again, I believe it is important that the specialisations of both organisations are able to be brought to bear on this matter.

61. Condition 1 will be made as proposed by the plaintiff.

62. Proposed conditions 5-8 were disputed. They seek to impose electronic monitoring, along with monitoring through the provision by the defendant of a schedule of movements.

63. Senior counsel for the plaintiff submitted that the conditions were necessary because the index offence actually occurred outside the home; the conditions may assist with early intervention; and the conditions facillitate the monitoring of compliance with other conditions.

64. Counsel for the defendant submitted that the conditions do not address any risk factor, as the main risk here is isolation and online activities. If I were against him, counsel proposed two fall-back positions: a “sunset clause” after a number of months; or that the electronic monitoring condition remain, but that there be no penalty for non-compliance with the scheduling requirement (counsel referred to State of New South Wales v BG (Final) [2019] NSWSC 200 for the latter position).

65. Turning to my determination, again, it may be accepted that underlying the development of this matter was social isolation, mental disturbance, and access to material on the internet. None of that occurred when the defendant was “out and about”; quite the contrary. But I respectfully simply do not accept that, as things stand, the defendant should be able to be moving through the community unchecked. To give but one entirely hypothetical example that readily comes to mind: I consider that, if the defendant were to propose to travel to another town in order to purchase another pressure cooker, those supervising him must definitely be in a position to know about it and to stop it.

66. As for the fall-back positions, I do not accept that I should impose an arbitrary temporal cut-off point. Nor do I accept that I should impose a condition without sanction. In my opinion, that renders the condition very largely fruitless.

67. Conditions 5 to 8 will be made as sought by the plaintiff.

68. Proposed condition 11 was disputed. It requires the defendant to comply with rules or by-laws or both of any approved accommodation.

69. Senior counsel for the plaintiff submitted that this was necessary in the event that the defendant changes residence, and that it is a prescribed (that is, default) condition under s 29(1A)(f) of the Act.

70. Counsel for the defendant submitted that there was nothing to suggest that the defendant would have a need to live in approved accommodation in the future, in light of the fact that all proceeds well with his parents.

71. Turning to my determination, whilst the condition is prescribed, I am not bound to make such a condition if I order differently, pursuant to s 29(1A) of the Act; the same may be said of all of the “default” conditions that appear in that section of the Act.

72. In my opinion, it is most unlikely that the defendant will live anywhere other than with his parents in the foreseeable future. And even if he were to live, perhaps, in a boarding house, I hardly think that infringement of the by-laws of such a place is part of the risk here.

73. Proposed condition 11 will not be made by me; for ease of comprehension by both parties, however, subsequent conditions sought will not be renumbered.

74. Proposed condition 13 was disputed. It requires the defendant to allow his enforcement officer (EO) to visit him at his address and to enter his premises.

75. Senior counsel for the plaintiff explained that this is necessary to ensure that the defendant is not in possession of any prohibited weapons or other items of serious threat.

76. Counsel for the defendant submitted that the proposed conditions already allow for a broad search and seizure power, and that the condition should be amended simply to require the defendant to present himself at the front door at the request of his EO.

77. In my opinion, the point is soundly made by the plaintiff that for some months the defendant was “under the radar” with regard to his concerning activity; indeed, in my opinion, one could say he was completely “off the radar”. As well as that, his current denial of criminal wrongdoing in the past is significant here. And speaking more generally, as I said in my preliminary judgment at the time of the imposition of the ISO, conditional liberty of significant rigour is called for.

78. For all of those reasons, condition 13 will be made as sought.

79. Proposed condition 14 was disputed. It requires the defendant to notify his EO in advance of any overnight guests.

80. Senior counsel for the plaintiff submitted that the condition requires “notification” rather than approval, which was said to be less burdensome and still allows for the EO to assess risk.

81. Counsel for the defendant submitted that visitors are not a risk factor in the defendant’s circumstances.

82. Turning to my determination, it is true that there is no evidence of the defendant having been in touch with other members of the Movement, whether at the time when he was previously at liberty, or incarcerated, or since his release in late January. But it is clear that there are members of the Movement in this country: apart from anything else, some of the material downloaded by the defendant is written about Australia by Australians. As well as that, the promulgation of my judgments, even with the use of a pseudonym, could possibly cause other adherents of the Movement to seek to make contact with the defendant. Finally, the condition does not prohibit, directly or indirectly, overnight guests; it merely requires notification with regard to them.

83. For all of those reasons, condition 14 as sought by the plaintiff will be imposed.

84. Proposed condition 19 was disputed. It prohibits the defendant from going within 1km of Sydney and Bankstown airports, or any other international point of departure.

85. Counsel for the defendant disputed only the distance, submitting that 500m was more appropriate, given that the port of Newcastle is an international point of departure, and the surrounding area with a 1 km radius covers a lot of road and land.

86. Senior counsel for the plaintiff submitted to the contrary that the closer one is able to get to a departure point, the less time there is to intervene.

87. In my opinion, whether or not the prohibition extends to 500 m or 1 km is of no moment. Separately, my assessment of the matter is that the prospects of the defendant having the motivation or the wherewithal to leave Australia are virtually nil. Finally, I think it important, bearing in mind the consequences of breach, that all of the conditions imposed are able to be complied with by the defendant with reasonable practicality.

88. For those reasons, condition 19 will be imposed, but amended in accordance with the submissions of counsel for the defendant.

89. Proposed condition 20 was disputed. It prohibits the defendant from starting any job or vocational training without the approval of his EO.

90. Senior counsel for the plaintiff submitted that this condition was necessary because the defendant has stated in the past that he purchased the pressure cooker (and other items) for his jewellery work.

91. Counsel for the defendant emphasised the need for the “fairly rapid reintegration and rehabilitation” of the defendant, and that there should be no hurdles stopping him from re-engaging with his vocation.

92. In my respectful opinion, there certainly needs to be a fetter on the defendant returning at his discretion to work that may necessitate purchasing all sorts of items. As I remarked at the final hearing, bearing in mind the fact that the alternative hypothesis for the purchase of the pressure cooker was that it was to do with the jewellery business of the defendant, I firmly reject the proposition that he should be permitted to return to work in general, and that line of work in particular, without any limitation.

93. Condition 20 will be made as sought by the plaintiff.

94. Proposed condition 51(c) was disputed. It would permit the EO search powers if he or she reasonably believes that a search is necessary to monitor the defendant’s compliance with the conditions of his ESO.

95. Senior counsel for the plaintiff submitted that this was part and parcel of the overall supervision of the defendant, and that there should not need to be a “red flag” to search for the purpose pursuant to proposed condition 51(c).

96. Counsel for the defendant submitted that proposed condition 51(c) was redundant, given the other bases for search powers available under condition 51.

97. Turning to my determination, again, I think it important that, exercising reasonable evaluative judgements, the EO of the defendant is able to subject him to a rigorous regime of monitoring. For that reason, condition 51(c) will be made.

98. Proposed condition 66 was disputed. It mandates that the defendant agree to his treatment and service providers and healthcare practitioners sharing information with one another and with his EO.

99. Senior counsel for the plaintiff submitted that this was necessary to ensure that those responsible for the defendant’s supervision are aware of the details of any treatment the defendant is undertaking.

100. Counsel for the defendant submitted that the defendant should be able to maintain privacy in relation to his health to the extent that it is not relevant to risk assessment, and it was submitted that this could include psychological and psychiatric matters. Counsel further emphasised the importance of rehabilitation, and the need for an open therapeutic relationship between patient and medical professional.

101. My approach to this condition is as follows. Whilst I accept that confidentiality is important in the development of the therapeutic relationship, in the circumstances pertaining here I think it absolutely imperative that, if there is any sign of psychological or psychiatric decompensation on the part of the defendant, a great many organisations know about it.

102. And on reflection, in the unusual circumstances of this case, I think that the removal of confidentiality must relate to alleged physical ailments as well. I say that because – again, speaking entirely hypothetically – if the defendant were to complain to a general practitioner that he believed that he was suffering from an infestation of mould on some part of his body, many organisations should know promptly about that as well.

103. In other words, here, it may be difficult to separate truly physical and psychological ailments.

104. Condition 66 will therefore be made as sought.

105. Proposed condition 67 was disputed. It requires the defendant to agree to information being shared between those involved in his supervision, including but not limited to, his EO, the police, and Corrective Services.

106. Senior counsel for the plaintiff submitted that the broad inclusion of stakeholders would allow health professionals to share information in order to maximise the benefits of the supervision of the defendant.

107. Counsel for the defendant submitted that the information sharing should be limited to only the EO, the police and Corrective Services. Counsel also emphasised that proposed condition 66 already allowed for information-sharing by health professionals.

108. Turning to my resolution of this dispute, yet again I think that extensive coordination of the monitoring of the defendant is imperative in this case. And I do not believe that arbitrary “bright lines” – whether to do with subject matter of shared information, or to do with organisations or persons that may be privy to it – should be drawn by me.

109. Condition 67 will be made as sought.

110. To summarise then: I shall impose the substantial majority, but not all, of the conditions sought by the plaintiff.

Other matters

111. Finally, two other orders that I have already made require brief explanation.

112. The first is that an order limiting – but not prohibiting – access by third parties to the court file, made by me at the time of the preliminary hearing, is extant. Each party submitted, and I agree, that that restriction appropriately balances the interest of third parties in the matter with the rehabilitation of the defendant, which is in the interests of the entire community.

113. Secondly, at the final hearing, I was persuaded by the submissions of counsel for the defendant that I should renew the order made at the preliminary hearing requiring the use of a pseudonym with regard to the defendant, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). That was because the matter has attracted some public interest; the defendant has a serious criminal allegation pending against him at a regional centre that may well be resolved by a trial by jury; that allegation is a rather unusual one; and the evidence tendered in those proceedings may be very different from the evidence tendered in the proceedings before me.

114. In other words, the pseudonym order is designed to permit the expeditious and efficient disposition of those other proceedings without any disruption or delay caused by the promulgation of this judgment.

Orders

115. I make the following orders:

1. An order pursuant to ss 20, 25(1) and 26 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act) that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of the order; and

2. Pursuant to s 29 of the Act, directing the defendant, for the period of the extended supervision order, comply with the conditions set out in the schedule to this judgment.

Mathers Conditions (419 KB, pdf)

Annexed Maps (1.29 MB, pdf)

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Amendments

03 May 2019 - Paragraph 7 line 3: Capitalised State Parliament,

Paragraph 45 line 1: delete the word "has" and insert the word "was",

Paragraph 113 line 3: insert the word "the" after the word "because".

Decision last updated: 03 May 2019