State of NSW v XX (final) - [2023] NSWSC 59

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v XX (final) [2023] NSWSC 59
Hearing dates: 6-7 February 2023
Date of orders: 9 February 2023
Decision date: 09 February 2023
Jurisdiction: Common Law
Before: FAGAN J
Decision:
1 The plaintiff's summons is dismissed
2 The Interim Supervision Order first made by Beech-Jones CJ at CL on 16 November 2022, and most recently renewed by Ierace J on 9 January 2023 to expire on 10 February 2023 is discharged forthwith.
3 The State pay the defendant’s costs of the proceedings

Catchwords:
HIGH RISK OFFENDER – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 – defendant currently subject to interim supervision order – whether the defendant is a “convicted New South Wales terrorism activity offender” pursuant to ss 20(c)(iii) and 10(1)(c) –defendant associated with a known terrorist and Salafi Jihadist whilst in custody – whether “unacceptable risk of committing a serious terrorism offence” pursuant to s 20(d) – court not comfortably satisfied that the defendant poses an unacceptable risk – summons dismissed – interim supervision order discharged

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010.
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Act 1999 (NSW)
Terrorism (High Risk Offenders) Act 2017

Cases Cited:
Hardy v State of New South Wales [2021] NSWCA 338
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
R v Khaja (No 5) [2018] NSWSC 238
State of New South Wales XX [2022] NSWSC 1583.
State of New South Wales v Namaan(Final) [2018] NSWSC 1635
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category: Principal judgment
Parties: State of New South Wales (plaintiff)
XX (defendant)
Representation:
Counsel:
A Casselden SC with K Curry (plaintiff)
K Stares SC with S McGee (defendant)
Solicitors:
Crown Solicitors Office (plaintiff)
Legal Aid Commission (defendant)

File Number(s): 2022/314785
Publication restriction: No

JUDGMENT

HIS HONOUR: By summons filed 21 October 2022 the State of New South Wales seeks an extended supervision order (“ESO”) against the defendant pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act"). An interim supervision order was made by Beech-Jones CJ at CL on 16 November 2022: State of New South Wales XX [2022] NSWSC 1583. The interim order has been extended on two occasions and will now expire on 10 February 2023. The interim order cannot be renewed for any further period, by force of the statute.
When the interim order was made, a significant factor that affected the Chief Judge's assessment of the risk that the defendant might commit a serious terrorism offence was that the defendant had declined to be interviewed by a psychologist within Corrective Services’ Proactive Assessment and Intervention Service, for the purposes of a risk assessment report being prepared, and he did not give evidence at the preliminary hearing. The absence of input from the defendant was taken into account by the Chief Judge in determining pursuant to s 27(a) of the Act that “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”.
The position was quite different at the final hearing of the summons. Prior to that hearing the defendant had participated in extensive interviews with Court-appointed experts, Dr Dayalan psychiatrist and Dr Dewson psychologist. He engaged with each of them co-operatively. The defendant also swore a lengthy affidavit and submitted to cross-examination by counsel for the State. In supplementary reasons that will be published under suppression and restricted access, I will identify significant evidence from and concerning the defendant that was before me at the final hearing but was not before the Chief Judge at the preliminary hearing, being evidence that cannot be elaborated upon in these reasons because of its relevance to separate, pending proceedings. That additional evidence, the extensive disclosure by the defendant to the Court appointed experts and his evidence before me entirely changes the landscape with respect to the assessment of risk.
The matters that the Court must be satisfied of if it is to make an ESO are provided for in s 20 of the Act, 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.

Pars (a) and (b) of s 20 are satisfied

Prior to the making of the interim supervision order on 16 November 2022, the defendant was serving a sentence of imprisonment for the indictable offence of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW). That offence was committed on 21 May 2019 at Goulburn Correctional Centre where the defendant was then in custody serving a sentence for multiple break and enter offences and associated property crimes. The reckless wounding was committed against a fellow inmate. The sentence imposed was 2 years and 3 months commencing on 19 August 2020 and expiring on 18 November 2022. A non-parole period of 1 year and 5 months was fixed. However, on 14 December 2021 the State Parole Authority revoked the statutory parole order that would otherwise have taken effect under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW). The revocation was ordered pursuant to s 159C of that Act on the basis that the defendant fell within Pt 6 Div 3A of that Act, pursuant to the following provision:

159B Offenders to whom Division applies
(1) This Division applies to an offender -
(d) who 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.

From 18 January 2022 until 18 November 2022 the defendant's continuing imprisonment was solely referable to him serving out the balance of his full term of 2 years and 3 months for the reckless wounding. That part of his custodial history together with the current operation of the interim supervision order are sufficient circumstances to constitute the defendant an eligible offender within the meaning of s 7(b) of the Act and to satisfy par (a) of s 20. The State's summons was filed in compliance with all formal pre-requisites in s 23, as recounted in the Chief Judge's reasons for having made the interim order. Accordingly, par (b) of s 20 is satisfied.

Par (c) of s 20 and s 10(1)(c)

With reference to par (c) of s 20, the defendant does not meet the criteria for either “a convicted NSW terrorist offender” under sub-par (c)(i) or “a convicted NSW underlying terrorism offender” under sub-par (c)(ii). The issue is whether the defendant is a “convicted New South Wales terrorism activity offender” within sub-par (c)(iii). That is to be determined by application of s 10 of the Act, the relevant parts of which are as follows:

10 Convicted NSW terrorism activity offender
(1)    In this Act, an eligible offender is a “convicted NSW terrorism activity offender” if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the “offender’s offence”) and any of the following apply in respect of the offender -
(c) the offender -
(i)   is making or has previously made any statement […] advocating support for any terrorist act or violent extremism, or
(ii)   has or previously had any personal […] association […] with any person, group of persons […] that is or was advocating support for any terrorist act or violent extremism.

(1A) 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 -
(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, […]

[…]
(2) Subsection [(1)(c) applies] regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

The State does not allege that the defendant has previously had any affiliation with a terrorist organisation as defined in s 10. It relies upon par (c) of the section. It alleges, first, that while in prison the defendant made statements "advocating support for any terrorist act or violent extremism" and, secondly, that he "has previously had a personal association with [two persons] that are or were advocating support for any terrorist act or violent extremism". Those allegations require reference to the statutory meaning of "terrorist act" and "violent extremism", as the terms appear in s 10(c).
“Terrorist act” has the same meaning in the Terrorism (High Risk Offenders) Act as in Pt 5.3 of the Criminal Code (Cth). Paraphrasing the definition in the Criminal Code, a “terrorist act” is an act done, or a threat made to carry out an act:

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

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

with the intention of (a) coercing, or influencing by intimidation, the government of the Commonwealth or of a State, Territory or foreign country; or (b) intimidating the public or a section of the public.

"Violent extremism" is not defined in the Act. The Court of Appeal interpreted the phrase in Hardy v State of New South Wales [2021] NSWCA 338, as follows:

[30] […] The concept of “extremism”, in its ordinary usage, refers to extreme views, usually of a political, religious or ideological character. It may be accepted that the term “violent extremism” does not refer to any form of violent behaviour, but rather a violent form of an ideology. Whether it extends beyond the scope of the definition of “terrorist act” need not be determined. (Basten JA)
[82] It is clear that the appellant had threatened extreme violence. The State accepted that “violent extremism” in s 10(1)(c) connoted an element of ideology and is not to be equated with extreme violence. I agree with the State’s submission that “violent extremism” refers to violence associated with, or in furtherance of, or motivated by extremist views. It does not follow that it was necessary to demonstrate that the Sovereign Citizen Movement, whose ideology the appellant supported, advocated violence. What was necessary was that it could be concluded that the appellant had advocated support for violent extremism, as distinct from having threatened extreme violence.

The State's case that the defendant has made statements advocating support for terrorist acts or violent extremism and that he has a personal association with others who have advocated such things is based primarily upon his gaol conversations and correspondence with two prisoners in the High Risk Management Unit (“HRMU”), of Goulburn Correctional Centre. Both of the other two men are Muslim and both of them espouse a belief in violent attacks on non-believers in order to intimidate the public and governments and thereby advance the cause of the Muslim religion as they perceive it. The defendant's conversations with these two men took place between 21 May 2019 and 24 June 2019 and his correspondence with them was exchanged between 2 June 2019 and 1 December 2021. The State also alleges that statements made by the defendant to corrections officers at South Coast Correctional Centre Nowra on 8 May 2020 satisfy the terms of s 10(c) and constitute the defendant a “convicted New South Wales terrorism activity offender”.

Par (d) of s 20

As for par (d) of s 20 of the Act, the term "serious terrorism offence" is defined in s 4(1) of the Act as an offence against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 or more years imprisonment. In Div 101 of Pt 5.3 of the Code there are enacted offences of committing a terrorist act (s 100.1), providing or receiving training connected with terrorist acts (s 100.2), possessing things connected with terrorist acts (s 100.4), collecting or making documents likely to facilitate terrorist acts (s 100.5) and doing other acts in preparation for or planning terrorist acts (s 100.6). Division 102 of Pt 5.3 creates offences in relation to terrorist organisations but the State does not allege that those offences are relevant to this application.
The State submits that if the defendant is not kept under supervision he poses an unacceptable risk of committing any one of the various offences in Div 101 of Pt 5.3. The State does not confine itself to a risk that the defendant may carry out a terrorist act contrary to s 100.1 and submits there is a risk of him preparing and/or planning for a terrorist act or possessing things or documents connected with or to facilitate terrorist acts, contrary to one of the other sections in Div 101.
For the reasons given in State of New South Wales v Namaan(Final) [2018] NSWSC 1635 at [18]-[22] I regard Court of Appeal decisions that have interpreted the concept of “unacceptable risk” in other similarly structured statutes as applicable to the interpretation of s 20(d). In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P (with whom Gleeson JA agreed) said this:

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

An important aspect of the context in the Terrorism (High Risk Offenders) Act is given by s 3, which states the objects of the Act in the following terms:

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

Section 25(2) is also important, as follows:

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

In State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 RA Hulme J said, in relation to similar provisions in the Crimes (Serious Sex Offenders) Act 2006 (NSW) that a risk would be unacceptable if:

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

Beazley P endorsed that view in Lynn v State of New South Wales, with the following further explanation:

[T]he word “ensure” itself has shades of meaning and, in the context of the Act, the evaluation to be made under [a section similar to s 20(d) of the Terrorism (High Risk Offenders) Act] is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.

Section 25 provides that if all parts of s 20 are satisfied, then the Court "may make" an extended supervision order. Paragraph (d) of s 20 is so worded that upon its terms being met, the paramount consideration of the safety of the community would usually dictate that a supervision must follow.
In the present case the issue under s 10(1)(c) and s 20(c) as to whether the defendant has made statements in support of a terrorist act or violent extremism or whether he has had a personal association with others who have advocated support for such objects is a pure question of fact to be resolved on the evidence. However, the issue arising under s 20(d) concerning unacceptable risk requires, as stated by the Court of Appeal, an evaluative judgment. Subsection (3) of s 25 of the Act specifies considerations that the Court is required to take into account in determining whether or not to make an extended supervision order, in addition to the paramount consideration of community safety specified in subs (2). The considerations in subs (3) are as follows:

(a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender’s participation in any such examination,
(b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence,
(d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community,
(e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community,
(f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives,
(g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,
(h) the likelihood that the offender will comply with the obligations of an extended supervision order,
(i) without limiting paragraph (h), the level of the offender’s compliance with any obligations to which the offender is or has been subject while—
(i) on release on parole, or
(ii) subject to a control order, or
(iii) subject to an earlier extended supervision order or interim supervision order, or

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

(j) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities,
(m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.

Defendant’s background to the age of 22 years

The defendant was born in 1992 and is now 30 years old. His father was a violent alcoholic who beat his mother until she left him when the defendant was five. The defendant thereafter lived with his mother and with a new partner, with whom she commenced a relationship shortly after the separation. At about that time the defendant was diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) for which he was medicated up to the age of about 13. That disorder is known to cause difficulties with school learning and with maintaining orderly behaviour. Both of those aspects affected the defendant. He was oppositional at school, frequently suspended and not able to comply with his stepfather's attempts to enforce discipline at home. The defendant left home at 12 and commenced living on the streets, in refuges and with friends. He left school after Year 7 following numerous suspensions but subsequently completed Year 10 in juvenile detention.
The defendant commenced drinking alcohol and using cannabis at about 12 years of age. From about 13 years he was using amphetamines, including methamphetamine, and he continued regular use of the latter drug into his 20s. Commencing in late 2007 at the age of 15 the defendant frequently committed offences of breaking and entering, stealing and possession of illicit drugs. The defendant says that his property offences were carried out for the purpose of supporting himself and funding his use of drugs.
From the age of about 18 in 2010 until June 2014, the defendant had employment in construction, excavation, plumbing and factory work. For about three of those years, he was apprenticed as a carpenter. The apprenticeship was terminated when he failed to attend and complete TAFE classes on theoretical aspects of the trade. During that period between the ages of 18 and about 22, the defendant was in a continuous, albeit turbulent, relationship with a partner by whom he has three children. Due to instability and dysfunction in the relationship, the defendant's mother requested authorities to remove the children into her care. That is what occurred, some time before the defendant was committed to prison in mid-2014.
Since he was first incarcerated in June 2014 the defendant has usually worked in prison, although with interruptions due to his misconduct and with varying degrees of application. Prison records are consistent with the defendant's own declaration that he has a strong work ethic. He has also worked over the past three months since his release in November 2022.

The defendant’s criminal and custodial history

The defendant was first sentenced to imprisonment as an adult on 13 June 2014. From that date he was in custody continuously for over eight years up until his release on 18 November 2022, with the exception of two months on parole from 14 June 2017 to 19 August 2017, seven and a half months on parole from 17 January to 30 July 2018 and one month under the Drug Court Program in October and November 2018. The defendant has spent almost the whole of his 20s in full time custody.
The nature of the offences for which he has served this long period of imprisonment can be summarised as follows:

In early June 2014 the defendant committed a series of break and enters. He was arrested on 13 June 2014 and subsequently sentenced to an overall effective head sentence of 3 years and 6 months with a non-parole period of 1 year and 6 months expiring 15 December 2015.

On 1 August 2015 the defendant escaped from a low security correctional facility and remained at large for three days until he handed himself in. For this he was sentenced to imprisonment for 1 year with a non-parole period of 6 months cumulative on his existing non-parole period and putting back his earliest release date to 14 June 2016.

On 21 May 2016 the defendant assaulted a corrections officer at Lithgow Correctional Centre. He was sentenced to a fixed term of 6 months cumulative on the existing non-parole period and putting back his earliest release date to 14 December 2016. The defendant was not released to parole until 14 June 2017, having by that date served 3 years.

On 15 August 2017 while on parole the defendant committed a break and enter. He was arrested on 18 August 2017 and sentenced to 1 year imprisonment with a non-parole period of 5 months expiring on 17 January 2018. He was released to parole on that date.

Between January and July 2018 while on parole the defendant committed a series of break and enters for which he was arrested on 30 July 2018. His parole was revoked and he remained in custody until 18 October 2018 when he was released under the Drug Court Program.

On 22 November 2018 the defendant committed offences of being armed with intent to commit a break and enter, possession of house breaking implements, stealing a motor vehicle and associated property crimes. He was remanded in custody from his arrest on 22 November 2018 and on 10 May 2019 he was sentenced for all of the offences of January to July 2018 (referred to at (5) above) and of 22 November 2018 to an aggregate term of 2 years and 8 months, back-dated to commence on 23 August 2018. That term expired on 22 April 2021. The non-parole period was 1 year and 8 months expiring on 22 April 2020.

On 23 August 2019 the defendant caused damage to property by starting a fire in a mattress in his cell at Bathurst Correctional Centre. He was sentenced to 20 months with a non-parole period of 11 months. That sentence was made partly cumulative on the non-parole period that the defendant was already serving for his property crimes.

The defendant was sentenced for the offence of reckless wounding in company committed on 21 May 2019, as referred to earlier in these reasons, after sentence had been imposed for the damage to property in his cell at Bathurst. The sentence for the reckless wounding was made partly cumulative on the already extended non-parole period. The head sentence of 2 years and 3 months for the reckless wounding expired on 18 November 2022.

The defendant's record of offending in the community is one of recidivism with respect to property crime. It is typical of the criminal histories of many offenders with very disadvantaged backgrounds, such as that of the defendant. Taken individually, none of the defendant's offences committed in the community have been particularly serious. That is reflected in the relatively short sentences imposed.

Incidents of violence by the defendant in prison

None of the defendant’s offending in the community has involved violence or has been of such a nature as to suggest, of itself, that the defendant poses a significant risk to the safety of the community in any respect.
As for the defendant's offences committed in prison, I do not consider that they provide support for an inference that he poses a risk of perpetrating or planning or encouraging an act of terrorism, or in any way involving himself in a serious terrorism offence. The escape from custody in August 2015 occurred when the defendant was 23 years old and had been in adult prison, for the first time, for over a year. He says that at the time he was under emotional strain with respect to his former partner and his three children; he was receiving no visits. As earlier mentioned, he surrendered after three days. This episode illustrates the defendant's difficulty in coping with his anxieties and frustrations and his impulsive, oppositional reaction to the exercise of formal authority over him. The assault of the corrections officer on 21 May 2016 was committed in company with the defendant's cell mate at Lithgow Correctional Centre when the two of them refused to return to their cell on the grounds of a complaint about power being turned off. It is another illustration of the defendant’s ingrained characteristics of internal instability and lack of self-control.
On 10 January 2017 the defendant and another inmate assaulted a third inmate at Wellington Correctional Centre. This incurred institutional disciplinary penalties. On 21 May 2019 the reckless wounding in company at Goulburn Correctional Centre involved the defendant holding the victim while his co-accused assaulted him. It also involved both of them pursuing the victim to inflict further blows and kicks after the victim had broken free. The sentencing judge accepted that the defendant's involvement was "somewhat impulsive". He was liable for the stabbing that was perpetrated by the co-offender because he was "at least aware of the possibility that the victim would be wounded". The weapon wielded by the co-offender appears to have been one half of a small pair of scissors. The victim's wounds were multiple but not severe. The victim did not co-operate in investigation of the matter. The defendant identified himself to corrections officers and readily admitted his part. This resulted in immediate segregation, being the period from 21 May to 24 June 2019, earlier referred to. The only available segregation housing at Goulburn at that time was within the High Risk Management Unit (“HRMU”) where the defendant was placed in proximity to a convicted terrorist offender named Tamim Khaja and another ideologue of jihadist violence against Western democratic communities, Milad Al-Ahmadzai. They befriended him and spoke to him about Islam, to which, with their encouragement, he converted.
On 9 July 2019 at Wellington the defendant in company with another inmate assaulted a third inmate. The victim suffered a skull fracture and internal cranial bleeding but, so far as the records show, no lasting injury. The evidence does not disclose the extent or circumstances of the defendant's participation in this conduct.
On 23 August 2019 the defendant started the fire in his cell when he was in transit from Wellington to Lithgow. On the way he was held over at Bathurst and was placed in segregation in a cell with very limited facilities. He was told that he would be there overnight and that he would not have access to his personal property, which included mental health medication. The defendant was eventually given access to his property but some of it was missing. He said in evidence that he "ended up stressing out" and became "just very agitated and overwhelmed". He reacted by starting a fire.
On 6 May 2020 the defendant engaged in an argument with corrections officers at South Coast Correctional Centre Nowra concerning a direction that Muslim prayers not be performed in a common yard. This escalated to a disturbance and the defendant obstructed the officers and threw a rubbish bin at them.
On 8 May 2020 the defendant was in handcuffs and being escorted to his cell at Nowra. He became verbally abusive toward the officers and threatened to cut off the head of a named officer, who was not present. It is alleged that the defendant then offered physical resistance, although I am not satisfied that he did so, having viewed the body worn camera footage of the incident. While being forced to the floor by four officers, the defendant shouted Islamic terms, to which I will give further consideration later in these reasons. For this the defendant was subject to institutional discipline only.
The State submits that the above record of violent incidents shows "an increasing propensity for violent offending". I do not accept that characterisation. I regard each violent incident, as disclosed in the records and as summarised above, as being relatively minor. During 8 years of custody there have been four physical conflicts with corrections officers: the assault on an officer at Lithgow on 21 May 2016, the cell fire at Bathurst on 23 August 2019, which was followed by resistance to officers, the disturbance at Nowra on 6 May 2020 and the alleged but not proved resistance at Nowra on 8 May 2020. There have been three physical conflicts with other inmates: the assault on 10 January 2017 at Wellington, the wounding on 21 May 2019 at Goulburn and the further assault at Wellington on 9 July 2019.
The most serious violence was the wounding on 21 May 2019. The four further events over the following 12 months, one concerning a fellow inmate and three involving corrections officers, exhibited a very low level of violence albeit perpetrated (or, in one instance, alleged to have been perpetrated) against persons in authority. The whole of this history does not amount to a significant record of prison violence and it certainly does not exhibit a trend of escalation. There was no physical conflict with other inmates over the final three years of the defendant’s incarceration. During the two and a half years after the incident at Nowra on 8 May 2020 up until the defendant’s release on 18 November 2022, he did not come to attention for any incident of violence at all. Considering in combination the defendant’s offences against inmates and corrections officers, the whole picture is explicable by reference to the defendant's longstanding impulsiveness and tendency to frustration under the pressure of being confined for so many years at close quarters with many other men on similarly short fuses. Only the index offence, now nearly four years old, involved a weapon. The other conflicts and outbursts do not to my mind display a tendency that could be expected to manifest in violence outside of the prison environment. The defendant has manifested no pattern of violence outside the pressured confines of living in close quarters with a population of other convicted offenders over many years.

Drug use in prison and rehabilitation endeavours

The defendant's custodial history shows that he has continued to have access to drugs whilst in prison and he has frequently been disciplined for that. Up to 2018 when he was out of prison, he attempted a live-in drug rehabilitation program on one occasion and pursuant to Drug Court orders, he again attempted abstinence. On both occasions the defendant relapsed. He presently expresses a desire to keep free of drugs and he recognises the potential damage to himself and to his future if he should resume.

Conversion to Islam and gaol correspondence with Islamists

The chronology of the defendant's conversion to and pursuit of the religion of Islam is relevant to both the issue under ss 10(1)(c) and 20(c) and the issue of unacceptable risk under s 20(d). The evidence of the process by which the defendant came to adopt Islam and the attitudes he has shown from time to time since are at the core of the State's case in support of the ESO.
Mention has already been made of the defendant's placement in the HRMU following the reckless wounding offence of 21 May 2019. The unit was at that time heavily populated with inmates serving long terms for serious terrorism offences carried out in furtherance of the religious cause of Islam. The HRMU inmates included Tamim Khaja and Milad Al-Ahmadzai, both of whom engaged the defendant in conversation about their religion immediately upon his placement in the unit.
In February 2018 Khaja pleaded guilty to a charge of doing acts in preparation for or planning the terrorist act, contrary to s 101.6(1) of the Criminal Code. The offence had been committed in May 2016 when Khaja sought to obtain weapons and explosives for the express purpose of killing as many non-Muslims as he could, in order to intimidate the Australian people and create a climate of fear in which the country could be subjected to Muslim rule. Khaja also admitted an offence against s 119.4(1) of the Criminal Code in that he undertook preparations to travel to Syria to join the Islamic State of Iraq and Sham (“ISIS”), with which organisation he intended to participate in armed combat to defeat the existing government of Syria. Khaja’s admitted actions and intentions are recorded in the remarks on sentence: R v Khaja (No 5) [2018] NSWSC 238. In May and June 2019 Khaja was serving a sentence of 19 years for the above offences, which will expire on 16 May 2035. He will be eligible for parole from 16 August 2030.
Al-Ahmadzai was convicted in February 2017 of an offence of shooting with intent to murder committed on 1 May 2013. For that and some associated offences he was sentenced in the District Court to 18 years imprisonment, which will expire on 23 April 2035. Al-Ahmadzai will be eligible for parole from 23 April 2029. He has already served a short term of imprisonment for threatening a Commonwealth official on 2 May 2013.
The defendant gave evidence before me that when he was housed in the HRMU the only topic of conversation with and between the other inmates of the unit was their belief in Islam. Prisoners were segregated but were able to converse across the walls when they were allowed to exercise in their respective individual yards for two to three hours daily. Evidently the unit was configured by Corrective Services to reduce communication between high risk prisoners and to keep them segregated but clearly the design was not effective in this respect.
Khaja commenced to befriend the defendant and to proselytise the Muslim religion to him from the time of his arrival in the unit. The defendant said that the belief system as explained to him "felt right" and that by 3 June 2019 he had decided to adopt Islam as his own religion. He said that he made a formal declaration to that effect in early June. He termed this the Shahada, whereby he acknowledged Muhammad as the messenger, or prophet, of Allah.
There is no evidence of the terms in which Khaja explained Muslim beliefs to the defendant in these oral conversations. There is no evidence of exactly what beliefs the defendant intended to be adopting in early June 2019 other than that there is one God, Allah, and that Muhammad was his final and authoritative prophet. It cannot be inferred or assumed that up to the point of considering himself a convert to Islam from 3 June 2019 the defendant had adopted a view that violence is justified for the purpose of furthering the religion and imposing it upon unbelievers.
From 2 June 2019 until the defendant was moved to Silverwater on 24 June and from there to Wellington, he wrote several letters to Khaja and Al-Ahmadzai stating that he was reading the Quran daily. He requested guidance on details of religious observance. He made no reference to religious violence in those letters. In that period Al-Ahmadzai and Khaja wrote to the defendant on apparently innocuous religious topics concerning Islamic sources, principles and observance. In a letter of 16 June 2019 Al-Ahmadzai asserted that "the governments of the Kuffar [unbelievers]" in the West were engaged in a war on Islam and he denied that "we believe in an ‘extremist interpretation’ of Islam". Al-Ahmadzai warned the defendant in this letter against the teaching of Islam by religious personnel approved by Corrective Services, in the following passage:

Part of their [the kuffar’s] war on Islam is to send stooge “imams” whose job is to rubberstamp the fatwas of their masters in Parliament House. Islam is now “extremism”… donkeys who have no knowledge about Islam (ignorant imams, screws, CIG [Corrective Intelligence Group] etc) think they are scholars and can teach us what is “moderation” & what is “extremism”.

The defendant did not respond directly to those observations. In the HRMU the defendant also made contact with Tuki Lawrence, another Muslim. After his transfer to Wellington the defendant wrote three letters to Lawrence, generally referring to Islam. Those letters are of no particular significance. He also wrote to Al-Ahmadzai to say that he was leading Islamic prayer in Wellington Correctional Centre and that he was "giving plenty of da'wah [proselytising]”.
Through to October 2019 Al-Ahmadzai continued to write to the defendant to encourage him in the religion and to advise upon proper rituals and observance. Khaja wrote similar letters up to 26 August 2019. These letters also contained strong expressions of brotherly friendship towards the defendant. However, following the cell fire at Bathurst on 23 August 2019, the defendant had a conversation with Correctional Services officers that indicated, in my assessment, a disenchantment with his new religion. That conversation has a bearing upon other pending proceedings and for that reason it cannot be recounted in this judgment. The separate supplementary reasons issued at the time of publishing this judgment, as referred to earlier, record my findings in relation to the defendant's change of heart as at August 2019. Those supplementary reasons will remain suppressed pursuant to an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW).
In about August 2019 the defendant informed Corrective Services that he was no longer a Muslim. He did not reply to the further letters he received from Al-Ahmadzai in the second half of 2019. He gave evidence before me that he re-embraced Islam from early December 2019. On 15 January 2020 he wrote to Al-Ahmadzai in the following terms (errors reproduced as in original):

I am sorry I have not wrote to you but I have been struggling a lot with the hole religion aspect of things. I have stopped praying and reading. I am at a dead end road my brother and don’t know what to think. I will start off by asking my questions that I have. So Christian’s say that Jesus is the last Prophet and the son of God aka the (trinity) that’s what the call it. So where do muslim get the that Jesus sez that there will be a prophet after him? It has put me off and I don’t know what to think. Also if Islam is the true religion what will happen to all the Christian, Hindu, Budist ect what if they have lived a life to devote there selves to God (praying, charity etc). But it was the wrong religion are they do to hell because of that? I don’t like or agree with that they have still devote there life to God and they get punished to hell if that is the case I would personally rather be in hell with those people and suffer and feel the pain with those good people… I have so many question and it does my head in and puts me off the hole religion side of things.

The defendant also stated in this letter that he had stopped reading and praying and asked various questions regarding Islamic disbelief, indicating his own doubts. He wrote that he was telling people he now followed no religion. He wrote to Khaja in similar terms on the same date, 15 January 2020. These letters to Al-Ahmadzai and Khaja are in my view very significant for their clear expression of moral scruples antithetical to the ideology of jihadist violence towards non-Muslims and towards liberal democratic communities and their institutions of government, aimed at intimidating and/or destroying such communities and governments with a view to achieving dominance by Islam and imposition of Islamic sharia law. As can be seen from further quotations below, that is the ideology propounded in the correspondence from Al-Ahmadzai and Khaja. It is described as “Salafi Jihadism” by Dr Roose in his expert report tendered on behalf of the State. The State alleges that this violent jihadist ideology has been or may have been adopted by the defendant and that the unacceptable risk of him committing a serious terrorism offence is that he would act in furtherance of this ideology.
By February 2020 the defendant's practice of the Muslim religion had resumed and he wrote to Al-Ahmadzai to say that he was returning to prayer and hoped that Al-Ahmadzai would still be his friend and Muslim brother. There followed an exchange of letters through to May 2020 in which Al-Ahmadzai at first expressed disappointment at the defendant's lapse and then proffered detailed instructions on Islamic observance and further warm expressions of friendship. In parallel with Al-Amadzai’s letters, Khaja was also writing to encourage the defendant to maintain his practice of Islam. Khaja's letters in that vein continued from February to December 2020 and also contained strong assurances of friendship and personal support for the defendant.
On 17 April 2020 Al-Ahmadzai wrote to the defendant to warn him about religious instructors approved by Corrective Services:

CSNSW have flooded the prison system with deviant books, or pure anti-Islamic books. Even some books look Islamic, then when you open it things are mentioned that will make your jaw drop (e.g. Islam & democracy are compatible… what rubbish), or they’ll try and defame Islam.

This warning apparently did not influence the defendant. On 27 April 2020 he gave his consent to participate in the Proactive Integrated Support Model (“PRISM”) conducted by the Countering Violent Extremism (“CVE”) section of Corrective Services. That it is a service by which appropriately trained corrections officers endeavour to engage with persons appearing to be at risk of adopting extreme violent ideologies. As described in more detail later in this judgment, the defendant has co-operated with and participated in that program from 27 April 2020 up to the present. I find it highly significant that, far from being brainwashed or deterred by Al-Ahmadzai’s warning of 17 April 2020, within 10 days the defendant proceeded to engage with a service that he knew was a form of intervention to divert him from being influenced by ideologues of violence. Furthermore, he continued to engage over the ensuing 18 months while Al-Ahmadzai wrote further letters, up to December 2021, expressing violent hostility to non-Muslims and to Western liberal democracies. When Al-Ahmadzai’s correspondence ceased after December 2021 the defendant remained engaged with PRISM for the remaining 11 months until his release and for 12 weeks thereafter.
By early May 2020 the defendant's reversion to belief was strong enough to motivate his involvement in the disturbance at the South Coast Correctional Centre concerning praying in the prison yard, as previously described. During the physical conflict with corrections officers on 8 May 2020 the defendant repeatedly shouted "Allah" and "Allahu Akbur [God is great]". At one point he shouted "Terrorism, fuck youse", which was meaningless in the context. He also said, "You will all see the Day of Judgment when Allah fucking puts youse all in a Hell fire." As earlier mentioned, I have viewed the footage from body-worn cameras which records the physical altercation that was taking place when these statements were made. The defendant shouted his Islamic slogans as he was being vigorously manhandled to the ground and then restrained.
The State attaches significance to what the defendant said during this incident as in some way associating his religious belief with a willingness to engage in violence to advance it. I am unable to accept that construction of the event. The defendant was helpless in handcuffs facing four officers. He was angry about some exchange that had incurred earlier and about the fact that he was being so heavily escorted to his cell. I am not able to determine whether his anger was justified. That appears to me to be irrelevant. Unable to retaliate physically the defendant did so verbally. I accept his explanation of the lack of real significance in the words he chose to throw at the officers. His explanation was given in the following passage of evidence:

Q You have referred to "judgment when Allah fuckin' puts you all in a hell of fire", I want to suggest to you that what you are saying to correctional staff is extreme and it is promoting violence in the name of religion. Do you accept that?
A Yeah, that can come across as extreme, it can, but half of it doesn't even make sense. When I say terrorism, I was angry, I was frustrated. I was sexually abused as a kid. I was flung to the ground saying that I was resisted. I wasn't even resisting anything and you can clearly see that that's in the footage. No wonder why I got angry and just started rambling on.

The defendant said that he understood the officers to say that they were turning off their body worn cameras. He then gave the following further answers to questions from the bench:

Q   […] Well, you are saying that that made you angry?
A   Yeah, that made me like, so I started freaking out, getting frustrated, like what's going to happen, like why are they turning off their body camera, and then obviously the video recording says well, they are trying to say I was resisting. You can clearly see in the video recording I wasn't resisting. An officer come from behind and grabbed my head and threw me on the ground.
Q   Well now, in this passage what counsel is pointing out to you is that you were at least making violent threats?
A   Yeah, I admit that, I wouldn't deny that. I was making violent threats; I am not going to deny that.
Q   The other thing that counsel is asking you to respond to is that you have made those violent threats in terms that have an Islamic religious flavour about them, of beheading and saying "God is great" several times. What is your explanation of why you would have used that sort of language, XX?
A   I don't know. I got angry and frustrated and that's the first thing that just popped into my mind and obviously I had all that other stuff going on to do with the not being able to pray for the two days prior. So obviously like my wording was poor choice, I am not going to deny that, and it probably does come across like it does look extreme but there was no intention behind it.
[…]
COUNSEL FOR THE STATE
Q   I want to suggest to you, XX, at that time you supported as part of your religious beliefs, violence in the name of Islam?
A   No.

I find that evidence from the defendant entirely credible and I accept it. To my observation he did not resist the officers at Nowra on 8 May 2020 and he was not in any position to do so. The officers were, no doubt, sorely provoked at the outset by his abuse and Islamic sloganising. In the defendant proclaiming his religion in the prison environment, asserting rights to pray in common areas and generally insisting upon practising the religion as he saw fit regardless of corrections officers' directions, I infer that there was a significant element of the defendant pushing back against authority under what he perceived as the protection of claiming religious freedom. On this and other occasions the defendant has engaged in a vain endeavour to reduce prison officers' authority over him by this means.
From evidence given by a Corrective Services psychologist, Ms Abreu, to which I will refer later, it appears to be a recognised phenomenon in New South Wales prisons that inmates espousing the religion of Islam seek to use it as a basis for claiming exception to prison routines and resisting legitimate directions. That would understandably be a source of significant irritation to corrections officers doing a difficult job. But the most that could be said about the episode on 8 May 2020 is that it was another chapter in the defendant's inveterate opposition to prison authority and a further exhibition of his frayed and poorly controlled temper. The incident does not persuade me that, in whatever concept of Islam the defendant may have held, there was included an idea that violence should be perpetrated against non-believers, thereby to intimidate governments or the public and to advance the cause of Muslim domination and the overthrow of liberal democracy in this country or elsewhere.
From May 2020 to June 2021 Al-Ahmadzai continued to write to the defendant with instructions on Islamic belief and practice. One such letter, dated 29 June 2020, expressed Al-Ahmadzai’s view that all non-believers must be forcibly brought under Islamic domination and that liberal democratic government institutions must be dismantled – in the following passage:

[The] lands of kuffār are to be conquered (as the companions [of the prophet Muhammad] done) for the sake of Allah. No-one is forced to become Muslim, as this is haram [forbidden], but all man made laws and systems (i.e. injustice) is abolished and the Shari’ah established.

On 15 July 2020, in a letter concerning the defendant's assertion of his right to pray in the prison yard, Al-Ahmadzai wrote this:

May Allah reward you and every akh [Muslim brother] who stood up for the prayer. These dogs won’t rest until a bullet finds their heads.
I remember leading one prayer when the senior came to us while we were praying & said “I’m ordering you to stop praying”, we ignored him. He then repeated it & got no response… He then called the squad and locked down the pod. All that because we prayed for five minutes. The brothers with me weren’t firm… otherwise I’d have launched a harb [war] on the ‘asākir. It was either pray together secretly in the cell (in Jama’ah) or the boys wouldn’t have prayed openly so I had to choose the secret option for the sake of the brothers’ din [religion].
As Allah from above seven heavens is my witness, I’m willing for my blood to be shed all over the ground, for the sake of Allah.
Shahadah (martyrdom) is the greatest honour, and the rewards are unmatched.
They invade our lands, fight the mujahadin, kill, rape, loot then they take our passports, forcing us to live in this putrid land of kufr & corruption. May Allah destroy them & their joke of a political system, called Democracy.

These are clear instances of Al-Ahmadzai "advocating support for any terrorist act or violent extremism" within the meaning s 10(1)(c) of the Act. The defendant did not directly respond to his advocacy for Islamic terrorism.
By 19 October 2019 the defendant was housed at Lithgow and he had been informed from some source that Corrective Services at South Coast Nowra were still not permitting Islamic prayer in the yard. He understood that prayer in common areas was permitted in other Corrective Services centres. In a letter to Al-Ahmadzai on 19 October the defendant wrote the following:

Akhi I received a letter from one of the Brothers at Nowra. And these Dogs are still oppressing our Brothers when they Are praying. It Is Really getting to me how these Dogs Think They can oppress us Like this. I am Ready to start a Harb if they want to keep going on the way they Are. May Allah Give us victory over the kuffar. Insha Allah [God willing]… I was Born In this country and I hate this country now the way they go on, the government, screws & police also even the way the community go on about us.

I asses this letter as largely parroting what Al-Ahmadzai wrote on 15 July. The defendant gave the following answers concerning what he wrote:

Q   I want to suggest to you that [in the letter of 19 October] you are in parallel or sync with the beliefs of [Al-Ahmadzai] as he described them to you in his letter of 15 July 2020. Do you accept that?
A   I don't accept that. A lot of this was just there was not a lot of intention behind why; it was just more words because I was angry and frustrated.
[…]
Q   What I am putting to you, XX, that this is a true reflection of what you believed at the time you penned it and sent it on 19 October 2020 as to the state of your religious beliefs?
A   I'm not going to say it's a true reflection.
Q   And I am putting to you that the contents of this letter marry up in large part to the contents of [Al-Ahmadzai’s] letter of 15 July 2020 where you, like [Al-Ahmadzai], are supportive of violence in the name of Allah. Do you accept that?
A   No, I am not going to accept it.
Q   And the reason I am putting to you that you held those beliefs was that you perceived there was a war against Islamic faith by non believers and that they were seeking to oppress Muslims around the world. Do you accept that?
A   I am not talking about oppressing Muslims, I am talking about what happened at Nowra. I am not talking about the world.

It does not appear to me that in this letter of 15 July 2020 the defendant adopted Al-Ahmadzai’s violent Islamic jihadist creed. Given the defendant’s circumstances, he could not have meant anything more by his reference to starting a “harb” than offering resistance to corrections officers in their enforcement of prison rules. Dr Joose’s evidence is that Muslims of the Salafi jihadist school of thought – such as Al-Ahmadzai appears to be, from the content of his letters – view the world as divided into Dar al Islam and Dar al Harb. The former comprises the abode of Islam, where the religion prevails, and the latter is everywhere else, constituting the abode of of war, within which Muslims are to fight unbelievers.
On the basis of Al-Ahmadzai’s letters to the defendant Dr Joose identifies him, within the spectrum of Islamic belief, as a Salafi jihadist. Dr Joose’s report includes the following:

[18] Salafi Jihadists embrace and support the use of violence to establish Islamic states. They are irreconcilably estranged from the state, regarding it as a “heretical and artificial unit”. Shiraz Mayer [in Salafi-Jihadism: The History of an Idea (2016) Oxford University Press at p7] notes that at “its core the contemporary Salafi-Jihadi movement regards physical struggle in the cause of God is the pinnacle of Islam, its zenith and apex.
[23] […] Salafism is a return a call fundamentalist form of Islam focused on replicating the practices of the Prophet Mohammed and the first three generations of his companions and predecessors […] Salafi-Jihadism constitutes an inherently violent worldview based on the binary division between those fighting for Islam (as they see it) and Kufr bent on the destruction of Islam, against whom violence is not only justified, but righteous.

In the defendant’s letters I find no evidence of any depth or sincerity of indoctrination with respect to Al-Ahmadzai’s jihadist ideology. I see no more than the defendant adopting some of Al-Ahmadzai’s hostility and terminology as a medium for his own merely personal resistance to those in authority over him in the prison system. That is clear from the last of his answers quoted at [61] above.
I assess the defendant's correspondence in light of his oral testimony, which I accept, about his state of belief and about the causes of him writing in the terms that he did. I do not accept that he was persuaded, to any significant or lasting effect, by Al-Ahmadzai's deep and fanatical belief in an Islamic justification for violence against “kuffars” (unbelievers), particularly against agents of democratic government and law-enforcement. The substance of the defendant's evidence, his presentation in the witness box and his frankness with the Court-appointed experts rebut the State's submission that he has become an ideologue on the same lines as Al-Ahmadzai or that he poses a significant risk of acting upon the ideology to which Al-Ahmadzai exposed him. I do not find in the defendant's letters any instance of him initiating a suggestion that violence against non-believers is justified in Islam. He never quoted in his correspondence any religious text to that effect. From my reading of the defendant’s side of the correspondence, he kept it up in pursuit of spiritual and ritual knowledge, encouraged by the friendship and support of Al-Ahmadzai and Khaja, while remaining for the most part noncommittal about the violent sentiments that they expressed.

Al-Ahmadzai wrote to the defendant again on 30 October 2020 making reference to an incident when the defendant had rebuked a female corrections officer for having ridiculed Islam. Al-Ahmadzai took the opportunity to express his support for Islamic violence in France in the following terms:

When the kuffar insult/ridicule Islam etc, they become the leaders of kufr for the enormity of their crime. I’m not telling you to do anything, but generally speaking [not transcribable] deserve nothing but a bullet in the head or a sharp knife in the neck. Hence why France is suffering attack after attack for daring to insult the Messenger (sall Allahu alayhi wa sallam).
They insult our religion and prophet, then we’re the barbarians for refusing to allow it?... Especially the French, they are the most vile, militant secularist dogs. […] In sha Allah they’ll suffer attack after attack until they realise their stupidity … May Allah avenge the oppressed.

On 18 November 2020 the defendant replied with a letter that included the following, which I characterise as superficial and ingratiating agreement, not suggesting any depth of understanding or commitment to a creed of terrorist violence:

Akhi I’ll be honest with all that is happening in France they deserve it and I hope the suffer more attacks for what they are saying about the Messenger (sall Allahu alayhi wa sallam).
Akhi with all that you said about defending our din I agree with it all akhi. Inshallah Shari’ah dominates all the lands of kufr soon. I will defend our Din until my blood is shed all over the ground for the sake of Allah. Insha Allah. ALLAHU AKBAR.

The defendant's evidence about that letter included these answers:

Q   Do you agree with me, XX, that at that time you held very clear beliefs that carrying out attacks on a Western nation were justified in support of the Messenger?
A   Well, like I said, like that's just stuff that I read. It was just more that I was angry and frustrated. I'm not saying there was any intention behind it because there wasn't.
HIS HONOUR
Q   In that paragraph, XX, do you know or are you able to say what you were referring to when you said "all that is happening in France" that meant that the French people deserved these attacks? Do you know what you --
A.    I think it was more in reference to what [Al-Ahmadzai] said in his letter. Like I don't know about what, obviously I think I did say the thing about the Messenger something happened but there was all these other things that I didn't know about.

In that evidence and elsewhere the defendant revealed what I regard as a complete absence of serious thought on the subject of religious violence in France and certainly no fanaticism of the kind that would be required if he were to overcome his own scruples, as displayed in August 2019 (referred to in the separate restricted reasons) and in his letter to Al-Ahmadzai of 15 January 2020 (referred to at [47] above). In the same letter of 18 November 2020, the defendant informed Al-Ahmadzai that Corrective Intelligence Group (CIG) had been to see him about the correspondence between them. The defendant knew that all gaol correspondence was read by corrections officers. He gave evidence that he had been warned by other inmates that correspondence with Al-Ahmadzai would create trouble for him. He gave the following answers, to questions from the bench, to explain his attitude to this risk:

Q   Who had suggested that to you [that you should not be writing to Al-Ahmadzai]?
A   There was only a few boys at Lithgow that I was with, obviously just because it was boys that had been in super max [ie HRMU] with him before.
Q   Some of them suggested to cut him off?
A. They still talked to him, don't get me wrong, but it was just the point that while you keep talking to him he'll just go through all this, you'll have to go through all this big process of like all the stuff I am going through now, like that's the stuff that they didn't want.
Q   Meaning that if you continued to go with him you would bring attention on yourself from the authorities?
A   Yeah.
Q   That's what they were warning you about?
A   That's what they were warning me more about, to not speak to him.
Q   But when you wrote these letters knowing that they would be looked at, what was your attitude about doing that?
A   To be completely honest I didn't really care. I didn't have my kids in my life. I couldn't, I had nothing to look forward to when I got out of gaol. Like my mindset as it was then I didn't care if I got out of gaol. Like I have done nearly nine years, nine to ten years gaol since I was a kid. So to be honest I knew they were reading my letters, I knew they were doing it, but I just didn't, I didn't care.
Q   You didn't really care about the consequences of
A   I didn't care what the consequences would be. I didn't have, I didn't really care about myself back then because I just wasn't in a good head space.

Those answers confirm the impression that I have from the entire course of the defendant's correspondence with Al-Ahmadzai that while he was content to receive religious instruction upon spiritual, moral and ritual aspects of Islam, to the extent that he sounded off about hatred of and violence towards corrections officers and other non-believers this was nothing more than a release of the pent-up frustration of a man in his late twenties who at this stage had been in prison for six and a half years and who was making things worse for himself by his inability to control anger and to submit to authority. Throughout the correspondence, in addition to the passages that the State has relied upon there are extensive enquiries by the defendant regarding Islamic principles and observance. Al-Ahmadzai, particularly, and Khaja to a lesser extent responded with lengthy explanations. Some of Al-Ahmadzai’s letters include detailed instruction in the Arabic language. The defendant was evidently interested in these innocuous aspects of Islamic learning and it is not reasonable to infer that his continuing engagement in the correspondence should be attributed to absorption of Al-Ahmadzai’s and Khaja’s violent religious fanaticism.
Neither the letter of 18 November 2020 nor any of the others is suggestive of a willingness of the defendant actually to give to effect to his hostility towards people in authority over him, once he should be released from custody. With respect to the defendant's apparent embrace of the notion of martyrdom in this letter he gave the following explanation:

Q And will you agree with me that the words that you have used in that last paragraph [of the letter of 18 November 2020, quoted at [67] above] are consistent with the concept of martyrdom that we dealt with earlier in your evidence today, whereby you were disclosing to [Al-Ahmadzai] a willingness to die for Allah?
A   I would say a poor choice of words but it was just I was so angry and frustrated, like I said with everything else that had gone through, it's not something with no intention behind it, it was more just anger and frustrated, I just wrote what was in my mind.
HIS HONOUR
Q   Did you have any concept or idea of any circumstances in which you might have to choose whether or not to die for the religion, did any circumstance --
A   Not really, no.

On 26 March 2021 the defendant informed Al-Ahmadzai by letter that he had been referred to the PRISM Service. Corrective Services personnel who provide that service include psychologists and Religious Support Officers (“RSOs”). On 22 April 2021 Al-Ahmadzai wrote to the defendant to discourage him from engaging with PRISM, in these terms:

Habibi, the whole PRISM program was created to “steer people away from religious extremism” i.e. get them to disbelieve in jihad.
Let me state on the onset that obviously you don’t intend to harm anyone or engage in violent acts, in or out of prison. However, as a muslim, we must believe in everything in the Quran & Sunnah. Jihad is part of our faith & one only need to read the Quran to see this. … If anyone asks you about the details of jihad, tell them the truth, that you are unaware of the details & you are forbidden to give your own opinion on religious matters. Refer them to the people of knowledge for details. They shouldn’t be pestering you.
Akhi, hold your head up high & fear none but Allah. You have done nothing wrong, nor do you intend to. Who is anyone to tell us what is “extremism”? Don’t ask the imams about PRISM, they’re mostly stooges who lack proper understanding of the din.
Akhi, you can’t do PRISM (i.e. it’s haram) unless a judge specifically orders it as part of your release & even then we can’t compromise our din. The program does nothing but put you into fitnah (trial) & pushes you to denounce aspects of your faith (like jihad).

Al-Ahmadzai use of the word "jihad" in this letter is in the sense of physical violence to overcome and defeat non-believers and to achieve the domination of Islam. The evidence of Dr Roose makes that plain. In fact, the defendant had already signed written consent to engage and participate in the assessment phase of prison a year before this letter from Al-Ahmadzai. That consent involved acknowledgment that his communications with prison personnel would not be confidential. Despite Al-Ahmadzai's advice the defendant continued with PRISM to the completion of the assessment phase, which culminated in a report of Ms Dragicevic, psychologist, dated 28 July 2021 that I will consider below. Then on 5 August 2021 the defendant signed consent to engage in the intervention phase of PRISM, which continued through to his release and for the first 12 weeks thereafter.
After Al-Ahmadzai's unsuccessful attempt to dissuade the defendant from participation in PRISM the only further correspondence between the two was on 6 June 2021. On that date the defendant advised that he would like to meet "brothers outside" as a "support network". He knew of Al-Ahmadzai's brother, Mayan Osman. He also knew that Osman was subject to a supervision order containing 60 conditions. The defendant gave the following evidence about his reasons for nevertheless being interested in contacting Osman:

Q   And is it the position that at the time when you thought were you going to be released from custody into the community, that you sought from [Al-Ahmadzai and Khaja] the names of Muslim brothers outside that could you get in contact with?
A   Yeah, that's true.
Q   Because you were at the time that you made those requests, of those two individuals, looking to be put in contact in the community with a network of Muslim brothers that would be supportive of your views, correct?
A   No, that was not my intention, the way I worded it, is this morning I was going to be getting out Muslim, I don't know anyone out there that would put me in contact to go to the mosque, there is no, there is no intention otherwise put me in contact with violent extremists or know extremists. That was not the intention of what was written. It was just in general concept not to meet Muslim people, go to the mosque and pray and stuff.
[…]
Q Knowing that [Osman] was subject to 60 conditions, and I want to suggest to you, XX, that you well knew that [Osman was] the subject of 60 conditions relating to an extended supervision order made under the Terrorism (High Risk Offenders) Act?
A   I have plenty that are under those conditions, there is no, I am under it, I'm under nearly 57 conditions and I am getting to be made out this person. I am not going to judge someone, I don't know nothing.
HIS HONOUR
Q   Did you know that person?
A   I never met him, I only ever heard about him through his brother and obviously through PRISM. Like they have told me him as well, and how good he is doing out in the community and he has been on his order and hasn't gone back to gaol, like.
[…]
Q   Are you saying when you wrote this letter Mr Casselden is asking you about, that you didn't actually know what he had been convicted of, that put him in prison?
A   I didn't know, no.
Q   And what view did you take about the appropriateness or otherwise of contacting somebody who was under restrictive conditions? What did you think of that course of action?
A   To be honest, I will be quite frank, I didn't really think anything, I didn't look too much into it, it wasn't, I don't know why, I didn't really care, like it wasn't not something that crossed my mind that I say doing anything wrong.
Q   What did you hope to gain by, if anything, by meeting with or being introduced to Maywan Osman?
A   To be honest, my whole point when I was to get out, got was obviously, my family is not Muslim, I don't know anyone out there who's actually Muslim, I didn't have anyone like and obviously there are other Muslim boys in gaol, there was more this support when I got out to be able get to be put in to go to the mosque, to have people around, and what I have to do out in the community because I have never been Muslim out in the community. There was no bad intention behind it.

In an earlier letter of 5 August 2020 Al-Ahmadzai had offered to assist the plaintiff with finding accommodation upon his release. Al-Ahmadzai said that he would help the defendant to locate "a good clean Islamic environment". On 24 August 2020 the defendant had responded by asking Al-Ahmadzai to "put him in contact with some brothers" on his release. Following the later correspondence of June 2021 Al-Ahmadzai provided his parents' home phone number.
To my mind the defendant's evidence credibly and innocently explains his desire to make contact with other adherents of the Islamic faith outside prison. In giving those answers I had the impression that the defendant was forthright and genuine. I find no basis for a suspicion that he poses a risk of seeking to link up with Al-Ahmadzai's associates or relatives upon his release for any purpose associated with the commission of serious terrorism offending. I accept that since his release on 18 November 2022 the defendant has, in fact, not made any contact with any persons associated with Al-Ahmadzai.

PRISM participation

During the assessment phase of the defendant’s engagement with the PRISM service he received instruction in the most religion from a RSO, Benjamin Cook. Mr Cook recorded the following with respect to a meeting with the defendant on 4 May 2021:

XX said the vision of Islam that he receives in our sessions is different to the vision he has previously been educated to believe. He said he likes this as it provides him with two perspectives that he can then go away to research better.

On 18 May 2021 the defendant reported to Mr Cook that he had been told by Muslims in the HRMU "that prison is an intel seeking program that works with Parole to keep terrorists in custody and there is no benefit for him to engage". Mr Cook informed the defendant that he had been misled about this and the defendant "indicated he can see benefit in maintaining engagement with PRISM".
The defendant had in his cell in 2021 a book by Bilal Philips that had been provided to him through Corrective Services. He was told by Mr Cook in the course of the PRISM participation that this author was regarded in some quarters as extremist. The defendant fairly pointed out that "youse are the ones that have this book in gaol" and that he found some of the author's explanations of tawhid (the oneness of Allah) useful. Counsel for the State did not take the Court to any passage of this book to show that it advocated serious terrorism offences or violent extremism. There is no evidence that if the book does contain such ideology the defendant has absorbed, understood or embraced the ideas. I find the book to be of no significance to my determination of any issue in the case, particularly that arising under s 20(d).
The author of the 28 July 2021 PRISM report, which was prepared at the completion of the assessment phase, recorded the following with respect to results of interviews with the defendant:

[70] When discussing these relations [with Al-Ahmadzai and Khaja], XX reported awareness that one of the [HRMU] inmates has been convicted of a terrorism offence. However, he maintained that his associations are focused on exploring and understanding religious issues rather than extremist beliefs. XX demonstrates extremely limited insight regarding how these associations may relate to his risk of radicalisation.
[71] When discussing his exposure to extremist ideology whilst housed at the [HRMU] or through his continued contact with the [HRMU] inmates, XX acknowledged that there may have been expressions of an extremist ideology during his placement at the [HRMU]. However, he maintained that he could not recall what this may have been. He maintained the similar stance throughout the assessment process, stating that he could not comment of his associates in the [HRMU] supported extremist ideology. By his own admission XX reported that he would not be able to identify what constitutes an extremist ideology, reporting that he would seek clarification from religious influences (including the Imam and the HRMU inmates) and by conducting further independent research.

I interpose that “radicalisation” and “extremist” are generalised pejorative terms. The defendant’s noncommittal answers to questions framed in those terms would not signify either evasiveness or a potential for becoming “radicalised” or “extreme” unconsciously.

Further extracts from the PRISM report are as follows:

[73] XX reported that he could not comment racket due to his lack of religious knowledge) on Violent Jihad, stating that this was not something that was advocated by his associates in the [HRMU]. […] XX stated that he has “no opinion” and “doesn’t follow or support” ISIS, describing difficulties in reconciling religion with the behaviour.

The last sentence of this paragraph echoes the defendant’s moral scruples, inconsistent with a willingness to take part in order to assist religious violence, that I have referred to earlier in these reasons.

The PRISM report continued with this paragraph:

[75] He reported a perception that in non-Muslim majority countries, Shari’ah law is only applicable to an extent on that one must abide by the laws of the country he resides in. XX again had some difficulties elaborating on his understanding of Shari’ah law, stating that he “hasn’t really read much about it”. What he did not outwardly verbalise rejection of some of the democratic and pluralistic values, norms and laws of society, he reported that he does not vote; that this predated his conversion to Islam. He reported no intention to enrolled vote. XX also reported that he does not have enough knowledge or understanding to be able to commit on issues related to democracy and politics.

There are probably many sincere Muslims living in Australia and other Western countries who, like the defendant, express support for Islamic law, Sharia, without very much idea of its content or implications. In the defendant, as with his co-religionists, this is hardly an indication of risk that he may blindly follow his religion towards the commission of a serious terrorism offence. As for the second part of the above paragraph, the defendant’s responses to the psychologist are consistent with my own assessment that he does not have a considered appreciation of the essential characteristics of liberal democracy or of the contrast between its principles of Muslim theocracy. Without a grasp of those ideas I consider it less likely, rather than more likely, that he would progress to willingness to commit serious terrorism offences in order to advance Islam.

The author noted that the defendant's denial of Al-Ahmadzai advocating jihad is contradicted by some of Al-Ahmadzai's letters. That does not, in my opinion, give rise to concern about the defendant’s sincerity in denying that he supports Islamic violence.
The most useful conclusion from the PRISM report is the following extract from par 78:

XX presents as generally susceptible to influence. […] Examples of his susceptibility to influence our present across time and context, including: his violent index offence in custody; briefly leaving Islam and embracing Christianity […]; and more recently contemplating disengagement from PRISM at the recommendation of his HRMU peer. It appears that XX can also be influenced in a positive way, which was evidenced by him remaining engaged with PRISM staff after further discussion. Nonetheless, this remains [an] area of vulnerability for XX.

In my view the information provided by the defendant to Ms Dragicevic, as reported by her, does not show that he had embraced any element of an ideology of terrorist violence by 28 July 2021. Ms Dragicevic noted that the defendant's denial of Al-Ahmadzai advocating jihad is contradicted by some of Al-Ahmadzai's letters. That does not, in my opinion, give rise to concern about the defendant’s sincerity in denying any support for Islamic violence on his own part.
Ms Dragicevic expressed scepticism concerning the defendant's frankness in some respects as follows:

XX attempted to manage those discussions [pertaining to extremist ideology, his associates, his views of democracy, politics and the social system] by stating that he had no opinion, had limited understanding of religious topics, and that the specific ideas (eg describing politics is boring, never enrolled to vote and not intending to unfold in the future) predate his conversion to Islam

I greatly doubt that the defendant was misrepresenting to Ms Dragicevic his level of understanding and of conviction in the respects indicated. However he may have appeared to Ms Dragicevic, I detected no element of the defendant trying to manage the impression he would give when was cross-examined before me over the course of half a day. I did not perceive him as deceptive or manipulative in giving an account of his beliefs and intentions and conduct. He does not appear to me to be a sophisticated or subtle individual. In the witness box he did not appear to be me to be capable of anticipating what the Court would like to hear or what would advance his position and then crafting answers to fit. I detected no sign of that. On reviewing the transcript I am confirmed in that assessment. Further, he did not demonstrate to me any depth of understanding of “extremist ideology” or of “democracy, politics and the social system”, which he might have been trying to conceal behind false positive stations of exhibits.
In giving evidence the defendant exhibited the opposite of trying to manage the impression he would give about his ideas and what he had taken from Al-Ahmadzai’s correspondence. The defendant was prompt and direct in response. He used simple language in explaining his position. He provided straightforward coherent and credible answers entirely consistent with a genuine presentation of his state of mind from a person of his background and limited education.
The second PRISM report, of 30 January 2023, records that the defendant participated co-operatively right up to that date, including by taking part in 73 weekly sessions of one hour, which have included 17 religious support sessions. The sincerity and openness of his engagement with the service is summarised in the following passages of the final report:

[9]   Throughout his engagement with PRISM, XX has presented open and willing to explore his religious beliefs and broaden his knowledge; however, at times this was impacted by factors outside XX's control (ie lack of access to Imams at privately operated correctional centres, RSO position being vacant until April 2022). ln November 2021 XX briefly withdrew from Islamic practice due to the perception that he was being "punished for being a Muslim" […]. However, he reconsidered his decision and reverted to Islamic practice in February 2022.
[10]   XX commenced sessions with the CVE [Religious Services Officer] in June 2022. XX has remained consistently engaged with the CVE RSO since this time. XX has often attended sessions with a list of questions, seeking the RSO's opinions and presenting as open to feedback when information differed from his own understanding. Throughout this period XX appears to have ceased seeking religious guidance from inmates in the [HRMU], who he had previously sought religious advice and counsel.
[11]   Religious support sessions have primarily focused on increasing XX's religious knowledge, including increasing his knowledge and understanding of basic Islamic rules, regulations and etiquettes relating to religious practice. XX acknowledged his limitations regarding his understanding of most concepts and rulings within Islam. He appears to understand that this was due to the source of his learning (ie, [HRMU] associates) having an incorrect interpretation of religious rulings and concepts by failing to adopt guidance from the primary schools of Islamic jurisprudence. XX has reportedly developed an understanding of the need to read widely and seek clarification from senior Islamic community members (eg, Sheikh) or a centre within the community rather than his incarcerated associates. Whilst in custody XX demonstrated an ability to read varying opinions of Islamic jurisprudence from prosocial religious sources, engaging in discussions with the RSO regarding his understanding of different interpretations and opinions. Prior to leaving custody, XX indicated an interest to broaden his religious knowledge through available courses through United Muslim Association (UMA).
[12]   Following his release from custody XX has continued to engage with the CVE RSO via phone, with one in-person session. Since his release, PRISM staff have indicated XX has presented with a reduced motivation to engage in religious practice outside of daily prayer. Within his most recent session with the PRISM psychologist and SAPO XX acknowledged he still considers himself a Muslim. However, is not praying at the moment as "he is busy and has a lot going on" […]. XX opined that he remained unsure where he was at with regard to Islam, noting it was something he could come back to in the future. XX has been provided with information regarding reputable community-based Islamic support services should he wish to re-engage in the future.

That report is a powerful rebuttal of the State's submission that the defendant poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision. The report appears to establish affirmatively that the defendant has not adopted any material aspect of Salafi jihadist ideology, which the State asserts is the belief system pursuant to which he may seek to advance Islam as an element of a terrorism offence. The tenets of Salafi Jihadism are explained comprehensively in the report of Dr Roose, filed on behalf of the State, with certain qualifications contained in the report of Mr Lefebvre, tendered by the defence. Not only has the defendant not adopted such an ideology, but in his current circumstances even his observance of Islam with respect to its spiritual and ritual aspects is in abeyance and the defendant has demonstrated a willingness to seek prosocial guidance in the religion, if he should return to the practice of it for spiritual purposes. The defendant maintains, and I accept, that he finds value in parts of the teaching of Islam, which have encouraged him to respect his mother, to renew a constructive relationship with her and to abstain from illicit drugs.

Risk assessment reports

Ms Filipa Abreu, senior psychologist with Corrective Services, in a report of 23 August 2022 assessed the risk of the defendant engaging in violent extremism, politically motivated violence or terrorism as "within the moderate range". She assessed his risk of violent re-offending, putting aside the terrorist element, as "high". Both assessments were informed by the application of statistical tools, the Violence Risk Scale (“VRS”) and the Violent Extremist Risk Assessment-2R (“VERA-2R”). In a report of 31 January 2023 tendered by the defendant, Dr Michael Davis, psychologist, has raised significant reservations about the reliability of the latter tool including the following:

[9] [While] the VERA-2R manual states that it was “specifically developed for the individual assessment of the risk of those persons inspired by any of the beliefs principles or philosophy the fall within the spectrum of idea logically motivated violence”, there is no evidence as to its ability to validly assess risk for terrorism. As will become clear below, it was not actually developed to differentiate recidivists from non-recidivists as is the case with other risk assessment tools. There is also no published information from which to validly calculate a standard error of measurement. It is, at best, a very rudimentary framework of hypotheses awaiting validation.
[10] Given the ethical requirements to use tests “valid for the purposes for which the test is used”, one would have to include considerable kbits in their use of any such tool when assessing a terrorism offender.

Dr Davis' report proceeds to explain the scientific and statistical limitations of the VERA-2R tool. He was not challenged about any of this. Indeed his reservations were substantially supported by the two Court-appointed experts. I find Dr Davis’ criticisms compelling. I am not prepared to place any significant weight upon the risk rating for terrorism offending that has been produced by application of the VERA-2R tool.
I also find the outcome of Ms Abreu's use of the Violence Risk Scale very surprising and counterintuitive to my own overall view of the defendant's conduct. His record is of moderate violence exhibited almost exclusively in the prison environment. To the extent that there is some risk of violent re-offending it would not appear to be high and would not, on the basis of his past conduct, be a risk of violence of any grave order.
Ms Abreu prefaced her report with the following significant qualification:

XX declined consent to be interviewed by the author for the purpose of this assessment. This assessment was therefore completed without the opportunity to explore file information with XX and is based solely on the materials provided in the brief of evidence by the Crown Solicitor’s Office. Should additional information exist which has not been made available to the author of the time of this assessment or should XX decide to participate in a future interview, the assessed outcomes and associated recommendations may alter.

As the defendant has now been interviewed by the two Court-appointed experts and has sworn a lengthy affidavit and given evidence under cross‑examination, the effect of Ms Abreu's qualification is such that, with no disrespect to her, I cannot now place any weight upon her report. I am in possession of evidence that places much of the filed material that Ms Abreu relied upon in a highly qualified light.
The following passage of Ms Abreu's report of 23 August 2022 is significant:

[101] XX demonstrates a tendency to react with frustration, anger and threats of violence in the context of religiously perceived grievances. The idiosyncratic grievances held by XX appear both specific to him and specific to the broader Muslim population located in custody. His grievances appear related to his perceptions of mistreatment, oppression and discrimination in custody by those in authority over him (ie custodial staff, CIG, CSNSW). XX's personal grievances appear related to perceiving other's actions (ie his ongoing management in custody, denial of his requests) as being due to his identification as a Muslim. For example, in inter-gaol correspondence he attributed the denial of his request to sign off protection and be housed in the Muslim yard in Goulburn Correctional Centre was due to "the Kuffr just don't want us Muslim brothers together''. More recently, XX was charged for circumventing restrictions he is required to adhere to as per his NSI [National Security Interest] status resulting in institutional charges. In reflecting on this incident, XX appears to have perceived he was unfairly targeted, engaging in victimised thinking and externalising blame onto authorities (ie "they (CIG, CSNSW) are trying to make my time hard", claiming CSNSW don't want him to be Muslim and are punishing him because of his religious status and perceiving CSNSW as being responsible for originally placing him in the [HRMU] with "terrorism offenders"). XX also holds perceptions of injustices related to the treatment of Muslim offenders in custody more broadly, perceiving restrictions are imposed by authorities on their religious freedoms inhibiting their ability to practice Islam how they wish to. Objections by XX to custodial staff allegedly placing restrictions on group prayer in the prison yard is suggested to have been an underlying motivator for XX's involvement in a number of incidents in custody including: a disturbance targeting custodial staff in South Coast Correctional Centre, an incident a few weeks later in which XX threatened to behead a custodial officer and a written expression in inter-gaol correspondence to another offender in the [HRMU] of a threat to commence a "harb" (war) against custodial staff at the South Coast Correctional Centre.

The reference in that passage to National Security Interest status is to a designation that was adopted pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 on the basis of the Commissioner’s opinion that there was a risk the defendant might “engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place”. The designation of this status attracted additional restrictions upon the defendant’s movements, visits and communications. I accept Ms Abreu’s analysis that after June 2019 much of the defendant's defiant conduct towards prison authorities was accompanied by him adopting a stance of victimhood in relation to his religion. Without being able to assess definitively how sincere or devout the defendant may be with respect to spiritual and ritual aspects of Islam, I am satisfied that he did, on occasions, unrealistically and unreasonably insist upon religious rights with a view to challenging prison authorities under shield of exercising religious freedom. I have no doubt that would be highly provocative and testing for corrections officers.
All of that said, the fact that the defendant has provoked prison staff by challenging them on grounds of freedom to practice Islam supplies no indication of a risk as referred to in s 20(d), at any level. On the contrary, conduct such as his involvement in the prayer disturbance at Nowra on 6 May 2020 tends to provide an explanation for his assertive religiosity: far from the defendant's religion being an ideological driver for future terrorism, to this point he has merely invoked it as a vehicle for his ingrained tendency to resist and oppose persons in institutional authority over him. The defendant is now free from institutional authority and there is no indication that during his freedom in the community he will transform his conflict with prison officers into violence against or intimidation of the public or other authorities of the government.
Ms Abreu provided three supplementary reports, each of which concerns her response to additional information concerning the events of August 2019 that are the subject of my supplementary judgment, publication of which is suppressed. The additional information has not caused Ms Abreu to alter her original assessment. In addition to being unable to attribute weight to Ms Abreu's original assessment, for reasons already given, I do not accept her opinion regarding the significance of the events of August 2019, for the reasons expressed in the supplementary judgment.
In her final supplementary report of 3 February 2023 Ms Abreu identified the defendant's impressionability as the principal factor causing her to maintain the view that he poses a high risk of committing a serious terrorism offence. Ms Abreu discounted the circumstances that the defendant has gained employment since his release, that he engaged fully with PRISM and that he has undertaken prosocial connections in the community over the last three months.
Unlike Ms Abreu I do not discount those circumstances. So far as the evidence shows the only occasion when the defendant has ever encountered fanatical advocates of Islamic violence was when he was housed adjacent to two of them in custody after he had been confined in prison almost continuously for nearly five years, isolated from family, friends, workmates, acquaintances and the balance of the community. The defendant's vulnerability to adverse influence is relevant but it is a distortion to dismiss the likely beneficial effects of positive and normalising influences that he will now encounter in the general community.

Court appointed experts

Dr Dayalan and Dr Dewson have both identified the defendant's susceptibility to influence and persuasion as the prime basis for perceiving that he poses some risk of committing a serious terrorism offence. Both of them utilised the VERA 2-R tool while expressing reservations about it. They also interviewed the defendant and considered extensive criminal custodial and other records.
Dr Dayalan did not nominate a particular level of risk in his assessment. His qualified views are captured in the following extracts:

[185]   He has limited protective factors. If not kept under supervision, there is a risk of XX associating with individuals that promote violent extremism.
[186]   As noted earlier, XX also presents with a high loading of risk factors associated with risk of violent behaviour in the future.
[188]   It is difficult to ascertain if XX would be able to put into practice the learnings from the PRISM whilst he is subject to extensive restrictions [of an ESO]. Graded reduction in the restrictions will be recommended to ensure safe transition into the community.
[190]   The level of risk posed will vary depending upon his circumstances.

As to par [185], Dr Dayalan sees the risk of commission of a serious terrorism offence as dependent upon realisation of an underlying risk of the defendant “associating with individuals that promote violent extremism”. I assess the risk of such association as extremely slight. The only time when it has ever occurred was when Corrective Services placed the defendant in a unit housing a community of terrorist offenders and other violent offenders with fanatical Islamic ideology. The conditions for such association are unlikely to be replicated in the community.
As to par [186], despite Dr Dayalan’s clinical evaluation of a “a high loading of risk factors” for violence generally, for reasons given earlier I perceive a low risk of violence outside the prison. Prison is the only environment in which the defendant has committed significant violent acts to date.
As to par [188], it is regrettable that the revocation of the defendant's parole means that in the absence of an ESO he will, from this point, be without the potentially constructive support of ongoing engagement with Community Corrections officers. However, an ESO cannot be made even with limited and facultative conditions merely for the purpose of making up for the absence of a period of parole. An ESO can only be made if I should find that the defendant poses an unacceptable risk as stipulated in s 20(d).
I have considered Dr Dewson's very thorough report of 11 January 2023 and her supplementary brief reports. Her opinion is summarised in the following paragraph:

Given XX's psychosocial history, offending behaviour and conduct/associations in custody, XX has been assessed as high risk of engaging in general recidivistic behaviour (ie not specific to any offence type), high risk of engaging in a violent offence (not specific to terrorism) and moderate risk of engaging in a terrorist offence. His most likely risk scenario (should he reoffend) likely involves him associating himself with a terrorist organization, providing support to a terrorist organisation or engaging in an act of religiously motivated violence. In considering these risk scenarios, should they eventuate, any future offending may meet the threshold for a serious terrorism offence.

XX's primary risk factors include susceptibility to influence, control and indoctrination; substance abuse; anti-social associations; an ideology that justifies the use of violence and unmanaged mental health. Whilst his intervention to date has gone some way towards ameliorating this risk, his risk profile is unstable, and he has a history of rapid deterioration (particularly in the context of drug use) and subsequent return to criminal activity upon release in the past. His recent stability is positive; however, this has occurred in the context of an ISO which has provided him with a high level of monitoring, scheduling, and restrictions. Should he be subject to an ESO, the mitigation of future risk may be enhanced by ongoing community supervision and mental health support, as well as ongoing participation in community-based supports.

I already stated my reasons for perceiving no significant risk of the defendant committing violence outside the prison system and for discounting any appreciable risk that he would associate with Islamic terrorists, or that he would perpetrate or threaten violence with a view to intimidating the public or the government in order to advance the Islamic cause, or that he would take part in planning or preparation for terrorist act. Dr Dewson’s opinion has been formed upon the same material that has been repetitively traversed in the numerous reports tendered on the hearing and that I have endeavoured to summarise in these reasons

Orders

From all of the evidence I have concluded that the matters to be proved under s 10(c) and 20(c)(iii) have been established. With respect to s 20(d) I am not comfortably satisfied that the defendant poses a significant or substantial risk. I am not comfortably satisfied that the defendant poses any appreciable risk of committing a serious terrorism offence and if he represents any risk at all I consider that it must be of a very low order and not to a level that could be regarded as unacceptable, according to the legal principles upon which I am to make that determination and giving full weight to the paramount consideration of protecting the community.
For the above reasons and the further reasons in the supplementary confidential judgment, the orders of the Court are:

The plaintiff's summons is dismissed.

The Interim Supervision Order first made by Beech-Jones CJ at CL on 16 November 2022, and most recently renewed by Ierace J on 9 January 2023 to expire on 10 February 2023 is discharged forthwith.

The State pay the defendant’s costs of the proceedings.

**********

Decision last updated: 01 March 2023

Medium Neutral Citation:	State of NSW v XX (final) [2023] NSWSC 59
Hearing dates:	6-7 February 2023
Date of orders:	9 February 2023
Decision date:	09 February 2023
Jurisdiction:	Common Law
Before:	FAGAN J
Decision:	1 The plaintiff's summons is dismissed 2 The Interim Supervision Order first made by Beech-Jones CJ at CL on 16 November 2022, and most recently renewed by Ierace J on 9 January 2023 to expire on 10 February 2023 is discharged forthwith. 3 The State pay the defendant’s costs of the proceedings
Catchwords:	HIGH RISK OFFENDER – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 – defendant currently subject to interim supervision order – whether the defendant is a “convicted New South Wales terrorism activity offender” pursuant to ss 20(c)(iii) and 10(1)(c) –defendant associated with a known terrorist and Salafi Jihadist whilst in custody – whether “unacceptable risk of committing a serious terrorism offence” pursuant to s 20(d) – court not comfortably satisfied that the defendant poses an unacceptable risk – summons dismissed – interim supervision order discharged
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010. Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Act 1999 (NSW) Terrorism (High Risk Offenders) Act 2017
Cases Cited:	Hardy v State of New South Wales [2021] NSWCA 338 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Khaja (No 5) [2018] NSWSC 238 State of New South Wales XX [2022] NSWSC 1583. State of New South Wales v Namaan(Final) [2018] NSWSC 1635 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Category:	Principal judgment
Parties:	State of New South Wales (plaintiff) XX (defendant)
Representation:	Counsel: A Casselden SC with K Curry (plaintiff) K Stares SC with S McGee (defendant) Solicitors: Crown Solicitors Office (plaintiff) Legal Aid Commission (defendant)
File Number(s):	2022/314785
Publication restriction:	No