The State of New South Wales v Reginald Collingwood (a pseudonym)

[2021] NSWSC 1365

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The State of New South Wales v Reginald Collingwood (a pseudonym) [2021] NSWSC 1365

Hearing dates:

12 October 2021

Date of orders:

25 October 2021

Decision date:

26 October 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The application for an interim supervision order and orders under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) is dismissed.

(2) The summons is dismissed.

(3) Directions made in relation to submissions on costs - see [115].

Catchwords:

CIVIL LAW - high risk terrorism offender - preliminary hearing - whether defendant an eligible offender - “convicted NSW terrorism activity offender” - whether unacceptable risk of serious terrorism offence - where defendant committed no acts of violence - where defendant mentally unstable - where grave threats made but not carried out - male supremacy - misguided paranoid misogynist - stupid things on Facebook - “manosphere” - involuntary celibates - neutered dogs - extreme right wing philosophy - personal grievances - fraught relationship with Walgett Police - capacity to manufacture explosives - fanciful and grandiose

Legislation Cited:

Community Protection Legislation Amendment Act 2018 (NSW), Sch 1.8

Crimes (Administration of Sentences) Act 1999 (NSW), ss 130, 158, 158B

Crimes (High Risk Offenders Act) 2006 (NSW)

Criminal Code Act 1995 (Cth), ss 101.1, 101.4, 101.6, 102.4, 102.7

Evidence Act 1995 (NSW), s 50

Firearms Act 1996 (NSW), Pt 50

Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 7, 10, 20, 23, 24, 25, 27, 29

Cases Cited:

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876

State of New South Wales v Elomar (Final) [2021] NSWSC 411

State of New South Wales v Naaman (No 2) [2018] NSWCA 328

State of New South Wales v Sturgeon [2019] NSWSC 559

State of NSW v Ceissman [2018] NSWSC 508

State of NSW v Pacey [2015] NSWSC 1983

State of NSW v Tiggelen [2018] NSWSC 1399

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Reginald Collingwood (a pseudonym) (Defendant)

Representation:

Counsel:
S Callan SC with K Heath (Plaintiff)
M Johnston SC with K Stares (Defendant)

Solicitors:
Crown Solicitors’ Office (Plaintiff)
Legal Aid Commission (Defendant)

File Number(s):

2020/00247831

Publication restriction:

Non-publication orders over the defendant’s name and any other identifying information.

Judgment

1. The State of New South Wales commenced proceedings by summons seeking an order that the defendant (for whom a pseudonym is used in the title of this judgment) be subject to an extended supervision order (“ESO”) pursuant to the provisions of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). This is a preliminary hearing and the State seeks orders under s 24(5) of the Act appointing a psychiatrist and a psychologist to prepare reports and directing the defendant to attend examinations with those experts, an interim supervision order (“ISO”) pursuant to s 27, and an order under s 29(1) directing compliance with the proposed conditions for the duration of the ISO.

2. I have concluded that the State’s application should be refused, and the summons dismissed. These are my reasons for those conclusions.

Time constraints and volume of material

3. The summons was filed on 30 August 2021, in compliance with s 23 of the Act. Three volumes of material were tendered in a joint court book (described as “Judges Working Folder”). This comprised around 1,200 pages including 166 pages of helpful written submissions and tables. I was also provided with a joint bundle of authorities including 20 previous cases decided by this Court and the Court of Appeal under the Act and similar legislation.

4. The defendant is currently serving a term of imprisonment which will expire on 25 October 2021. The evidence summary of the criminal history indicates that this sentence included an 8-month non-parole period “concluding 25 June 2021”. [1] Ordinarily, an inmate is released on a statutory parole order at the expiration of a non-parole period relating to a sentence of less than three years. [2] However, I was told that the defendant “will remain in custody until the sentence expires on 25 October 2021, parole having been revoked by the State Parole Authority on 17 June 2021, following a determination that [he] was a ‘terrorism related offender’ under Division 3A of the Crimes (Administration of Sentences) Act 1999 and posed a ‘serious identifiable risk’ to the safety of the community”. [3] I assume there was no judicial review or appeal relating to that determination.

   1. Ex A p 852 (evidence summary of defendant’s criminal histories in various jurisdictions).

   2. Cf Crimes (Administration of Sentences) Act 1999, s 158.

   3. Plaintiff’s Written Submissions (“PWS”) at [184]; and see Crimes (Administration of Sentences) Act 1999 (NSW), ss 130, 159B.

5. Because the defendant is due to be released on 25 October 2021 the State asks that the ISO commences on that date. In the days before the expiration of the sentence the parties agreed that the determination of the preliminary hearing, and as it turns out, the whole of the proceedings commenced by the summons, could take place by making orders on 25 October (the potential release date under the current sentence). [4] This was because the defendant is in custody, with bail refused, in relation to another alleged offence. The hearing took place on 13 October allowing 12 calendar days to prepare these reasons.

   4. Hard copies of an email exchange between my Associate and the parties were marked MFI 1 in chambers.

6. I raise these matters merely to emphasise the urgency with which this judgment has been prepared, and to explain that it has not been possible to refer to all of the relevant evidence, or to do any justice to the careful and comprehensive submissions of Senior Counsel for both sides.

7. There are four main areas of dispute, and I am not here using precise legal language or employing the terms of the statute:

1. Whether the defendant is a “convicted NSW terrorism activity offender” as that expression is used in s 10 of the Act.

2. Whether the plaintiff’s evidence taken at is highest may convince the judge hearing the application for an ESO that the defendant represents an unacceptable risk of committing a serious terrorism offence.

3. If so, whether the application for an ISO should be denied on discretionary grounds.

4. If an ISO is to be made, what conditions are appropriate.

8. It is unnecessary to consider the third and fourth issue because I am satisfied that the application must be dismissed pursuant to s 24(7) of the Act. I am not satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”.

Preliminary hearing and interim orders

9. This is a preliminary hearing conducted pursuant to s 24 of the Act. The State does not seek final orders at this stage but asks for the appointment of experts to provide opinion evidence at the final hearing. In the meantime, it seeks an ISO to take effect in the event that the applicant is to be released. The Act provides the circumstances when such orders must be made and the test to be applied in s 24(5):

(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the eligible offender to attend those examinations.

10. The test to be applied in making the ISO is in s 27 of the Act:

27 Interim supervision order

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

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

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

11. Three things should be noted. First, the primary objective of the Act must always be borne in mind. That objective is stated in s 3 of the 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.

12. This objective is reiterated in the provisions concerning the making of orders for the continued detention and extended supervision of eligible offenders. In deciding whether to make an ESO, s 25(2) mandates that “the safety of the community must be the paramount consideration of the Court”.

13. Second, if the Court conducting the preliminary hearing is satisfied that the documentation “would, if proved” justify the making or an extended supervision order, the Court “must make orders” for the appointment of experts. There is no discretion and the making of those orders is mandatory. By use of the word “may”, there appears to be a discretion under s 27 in deciding whether to make an ISO pending the final hearing. However, it is difficult to contemplate circumstances in which any such discretion would be exercise against making an interim order if the requirements of s 27 are otherwise established. That is not to say that such circumstances may not exist.

14. Third, the Act requires the judge conducting the preliminary hearing to make an evaluation of the evidence in the context of the test to be applied at the final hearing. This necessarily involves consideration of the provisions allowing for the making of an ESO and the supporting documentation upon which the State relies. The test at the preliminary hearing and for determining whether to make an interim order has been referred to in the following way:

“It is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff’s case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case”[5]

“A lower standard applies at a preliminary hearing to determine whether the application should proceed further where the Court will be assisted by expert psychiatric and psychological reports prepared after examination of the Defendant. It is only then that the ultimate test applicable at a final hearing is to be applied, having regard to all evidence adduced at the final hearing by the Plaintiff and the Defendant.”[6]

“The Court is required, in the context of a preliminary hearing (which is not a final one) to undertake an assessment of whether, on the material available, the making of an order at a final hearing would be justified. It seems to me, on any such assessment, unless the Court concludes that it would not be open to it at a final hearing to make an order for supervision or detention, it must follow that the material would justify the making of an order.”[7]

5. State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 (Campbell J) at [48].

6. State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 (Johnson J) at [98].

7. State of New South Wales v Sturgeon [2019] NSWSC 559 (Garling J) at [16].

15. While those statements emphasise the test at this stage is a much less stringent test, ultimately the terms of the statute must be applied on their terms.

The defendant is an “eligible offender”

16. Before making an order under the Act, the Judge at the final hearing will have to be satisfied that the defendant is an “eligible offender”. That expression is defined in s 7 of the Act:

7 Eligible offender

In this Act, an eligible offender is a person who is:

(a) 18 years of age or older, and

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

17. There is no dispute that the defendant is an eligible offender. He was born in 1976 and is 45 years of age. He is serving a sentence of imprisonment for an offence of intimidating a police officer in execution of their duty under s 60 of the Crimes Act 1900 (NSW). This is a NSW indictable offence (although it was dealt with summarily in the Walgett Local Court).

Section 20 of the Act

18. Section 20 of the Act provides:

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.

19. There is no dispute that the defendant is currently in custody and was incarcerated at the time the application was made. If an ISO is made, then he will be under supervision at the time of the final hearing.

20. Accordingly, the formal requirements of s 20(a) are, and will be, satisfied.

Is the defendant a “convicted NSW terrorism activity offender”?

21. The offender has never been charged with any terrorism offence. However, the Act casts a wide net over offenders who might be subject to its provisions. In particular, there is a broad definition of “convicted NSW terrorism activity offender” in s 10(1):

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:

(a) the offender has at any time been subject to a control order,

(b) the offender has at any time been a member of a terrorist organisation,

(c) the offender:

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

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

22. The State relies on s 10(1)(c)(i) to establish the offender as a “convicted NSW terrorism activity offender”.

23. This wide definition was further clarified and expanded by an amendment to s 10 introduced in 2018. [8] Sub-section 10(1A) now provides:

    8. Community Protection Legislation Amendment Act 2018 (NSW) No 94, Sch 1.8 [1] [2].

(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:

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

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

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

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

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

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

24. The State relies on sub-para 10(1A)(iii).

25. There was a lively debate in writing as to whether this definition applies to the offender. For example, the defendant submitted:

“[30] It is noted that the plaintiff does not rely upon the statements attributed to the defendant as advocating support for ‘terrorist acts’. Rather the plaintiff relies upon a novel, broad, and gender based, interpretation of the defendant’s statements advocating support for violent extremism’. Briefly, in response, the defendant submits:

(i) The interpretation of ‘violent extremism’ contended by the plaintiff extends well beyond intended interpretation of these words and the scope of the Act.

(ii) The defendant disputes that he identifies as a male supremacist, or that he is associated with male supremacist groups, that advocate violent extremism.

(iii) The defendant does not accept that ‘male supremacism’, being an ideology that men are superior to women, is an ideology that can be characterised as inherently advocating support for violent extremism.

(iv) The defendant submits that the plaintiff ’s mischaracterises the nature and context of his conduct and disputes the plaintiff’s contention that the conduct attributed to him can be characterised as advocating support for violent extremism. The plaintiff’s submissions focus on acts directed towards women but overlook statements and threats directed towards men.

[…]

[46] The section is not intended to curtail every sexist, misogynist or anti-feminist statement.

[…]

[189] It is noted that [the defendant’s] criminal history would not result in him being an offender to which general High Risk Offender orders might become available because of the lack of serious index offending that the legislation requires.

[…]

[194] Ultimately, there is a legitimate concern on behalf of the defendant that the plaintiff’s application is an attempt to use the intrusive powers of the THRO Act to unnecessarily control a person who has made offensive statements to police.

[…]

[204] The defendant is currently in custody and bail refused in relation the outstanding matter. It is noted that somewhat unusually for offences of intimidate police, the DPP have elected for the matter to proceed on indictment. It appears unlikely the defendant criminal matters will conclude before proceedings for an extended supervision order are determined.” [9]

9. Defendant’s written submissions (“DWS”) at [30], [46], [189], [194], [204].

26. The second last paragraph extracted above was accompanied by a footnote which included the following additional assertion:

“It is noted that the police facts for the intimidate offence offences charged on 12 February 2021 (EM129-132) state (at page 4) ‘should [the defendant] be released from custody at any time, Constable [REDACTED] and New South Wales Police will be forced to take steps to ensure the safety of Constable [REDACTED] based upon the nature of the threats.’”

27. However, the defendant’s submission became more muted at the preliminary hearing itself. The following exchange took place:

“JOHNSTON: That said, your Honour will appreciate that the way in which the plaintiff has put its case in relation to 10(1)(c) has been very broad and has picked up what was the defendant would submit is a very considerable range of statements, some of which, it is contended would fall nowhere near, within the contemplation of being violent extremism or terror. And in that regard, certainly some effort was spent in the written submissions, attempting to, firstly, try and put into context what we submit is the scope of s 10(1)(c) and has certainly attempted to identify that the fact that a statement, simply because it is anti-feminist or misogynistic, doesn’t of itself, qualify as violent extremism.

And I don’t propose in oral submissions, certainly to take your Honour through each and every one of those arguments again, because I think we’ve developed it in part in written submissions. But, your Honour appreciates that part of what the position of the defendant is in relation to 10(1)(c) is certainly we’re not about to accept that any one of those statements is - for all of those statements that form the evidence in this matter are capable of filling that definition under s 10(1)(c), in fact, it would - it simply - it would be submitted that a large majority of the statements have come nowhere close to being violent extremism.

HIS HONOUR: Yes. No, you’ve said that. I understand that. There are some which are simply, I don’t know, lashing out against individual women that the defendant has some grievance with, but that’s not really - I mean saying that, a lot of them are nowhere near it, doesn’t really answer the State’s case that one or more of them are. Not only near it, but bang on them.

JOHNSTON: Well

HIS HONOUR: Sorry, I say that stridently and I don’t mean to suggest that I have some view about any particular one of them or that I might sufficiently on top of them to have reached that conclusion, but this seems, at least, to go beyond personal grievance and the development of personal grievances into some, I don’t know, political view, manifesting in words, at least. The threat to interrupt, to use as neutral a phrase and benign a phrase as I can, the Women’s March is not just the [venting] on Facebook or otherwise of a personal grievance.

JOHNSTON: I understand what your Honour’s saying and again, I’m not - I think, if your Honour’s identifying a particular matter that’s capable of falling within, I understand what your Honour’s saying, but the position is not implied that the defendant is simply that we’re not prepared to make any concession in relation to any particular statement, given the way that the case was put.

HIS HONOUR: Okay. Well, I’ll look at them myself, thank you.” [10]

10. Tcpt, 12/10/21, pp 30 - 31.

28. It seemed from this exchange that, ultimately, the defendant’s opposition did not involve a positive argument that he did not fall within the broad definitions contained in s 10, but rather that no concession would be made that he did. In considering this issue at this stage, the question is whether the material tendered on the preliminary hearing would, if proved, justify a finding that the defendant fits within the definition of “convicted NSW terrorism activity offender”. It is not to the point that the defendant does not fit the ordinary profile of a terrorist or terrorism offender, or that he has not committed any acts of violence that would place him at risk of orders under the Crimes (High Risk Offenders Act) 2006 (NSW). As has been observed, the legislation chose to cast the net widely and, having done so, introduced amendments to the definition which expanded the already broad definition.

The index offence

29. The “index” offence concerns statements made by the defendant on 27 March 2020. At the time, [the defendant] was subject to a Community Corrections Order (‘CCO’) and in the course of conversing with a community corrections officer, said the following:

“I feel like I’m being harassed by police. I may as well go and blow up the police station and Lightning Ridge Mental Health.”

30. This resulted in the offender being charged with intimidating a police officer in execution of duty and using of a carriage service to make a hoax threat.

31. The defendant is correct that, as troubling as these threats obviously are, they are not threats to commit a terrorist act or an act of violent extremism as those expressions are defined in legislation or generally understood. Rather, they are threats to commit violent acts in response to personal grievances. However, the Act makes it clear that this is not in any sense determinative of the question whether the defendant is caught by the provisions in s 10 of the Act.

Statements supporting terrorist acts violent extremism

32. A large amount of material was tendered concerning statements the defendant has made, including posts and re-posts on social media, that could fall within the definition in s 10(1)(c)(i) and 10(1A)(iii). Some of these statements may be considered, as Senior Counsel for the Defendant submitted or implied, something of a stretch. He is correct that not every threat of violence, even violence directed towards women, is caught by the provisions of the Act. While the State accepts the origin of some of these threats represented “delusional personal grievances”, it contends what was once a personal grievance (or series of personal grievances) developed into a “global sense of grievance” coloured or informed by the defendant’s engagement with male supremacist material. [11]

    11. See, for example, Tcpt 12/10/21, p 23.

33. However, it is unnecessary to consider all of these statements at this stage because the legislation, on its terms, is engaged even if one such statement is proved; s 10 refers to “a statement” and “any statement”. In this case there are clear statements that falls within the definitions, including under s 10(1)(c), as a statement advocating support for violent extremism (motivated by male supremacist views or otherwise). A Facebook post authored by the defendant and dated 6 March 2020 is extracted below:

“I’ve had enough with this health feminist health department feminist police dept feminist mental health department next woman’s Day March I’m going to mix some things together I’m going to make some ammonia I’m going to make some nitrate I’m also going to get myself a small bottle of nitrogen hydrochloric acid and sulfuric acid and mix them together in an ice bath I wonder what I’m going to get from them ingredients the next woman to March might go off with a real bang.” [12]

12. Extracted in PWS at p 72.

34. Similarly, statements made by the defendant that include threats to blow up a police station, or a hospital, or a rural health care centre are capable of falling within the ambit of the provision.

Alternate basis under s 10(1A)(iii):

35. The State also relies on threats said to fall within s 10(1A)(iii) which captures threats of violence of a kind that is promoted by male supremacist groups or ideology. [13] A report of Dr Joshua Roose, who holds a PhD in Political Science, provides an analysis of various groups which support “male supremacism”, a concept he says “is closely linked to the concept of misogyny”. [14] He describes the ‘ideology” operating “online” in the “mansosphere”. He describes the four “main movements” within this manosphere as “Men’s Rights Activists” (MRAs), “Men Going Their Own Way” (MGTOW), “Pick Up Artists” (PUAs) and “Involuntary Celibates” (Incels). Dr Roose goes on to describe the motivations and philosophies (for want of a better word) of these movements. He describes instances where these ideologies have manifested themselves in attacks against women or women’s groups.

    13. PWS at [207].

    14. Dr Roose Report (Ex A, pp 1067 - 1106)

36. He provides an opinion that one of the defendant’s tirades, involving a threat to attack the Women’s Day March, constitutes “an ideologically motivated male supremacist threat.” He refers to a male supremacist plot to attack a Women’s Day March in Utah in January 2019. The State relies on the following passage in Dr Roose’s report to contextualize the above threat of violence as one embraced by the “Incel” group of male supremacists:

“In Provo, Utah in January 2019, a 27-year-old man was arrested on terrorism charges after posting messages to social media stating that his virginity was the motivating factor for him ‘shooting up a public place soon and being the next mass shooter cause I’m ready to die and all the girls the turned me down is going to make it right by killing as many girls as a I see’. He had previously been arrested for stalking and making a repeated communication of domestic violence and was arrested on the same day as the 2019 Women’s March, which media reports indicate authorities were concerned may be targeted.” [15]

(footnotes omitted)

15. Ex A, p 1073.

37. As to whether the defendant engaged with Incel ideological material more broadly, and based on a review of the defendant’s extensive social media posts, Dr Roose was more circumspect. He believed the link between the views and ideas expressed by the defendant on Facebook and ideology espoused by Incel was inconclusive and that the material “indicates a more comprehensive engagement with [MRA] and MGTOW material than specific Incel material”. [16]

    16. Ex A, p 1086.

38. The reference in Dr Roose’s report to the defendant’s threats against the Women’s Day March derives the defendant’s Facebook post from 6 March 2020 extracted at [33] above.

39. Dr Roose says there are numerous examples of posts that “reflect, engage with or have a connection with male supremacist ideology”. [17] These are set out at paragraphs [41]-[50] of his report. [18] Dr Roose goes on to provide examples of posts that may be seen to “advocate support for any terrorists acts or violent extremism” or “include a threat of violence of a kind that is promoted” by male supremacist groups. These are set out at [51]-[53]. I have looked at the social media posts themselves, which are reproduced over 130 odd pages of Ex A. [19]

    17. Ex A, p 1077.

    18. Ex A, pp 1078-1089.

    19. Ex A, pp 719-842.

40. It is unnecessary to deal with these in detail in the present context, other than to say that while some appear to fit into the categories identified by Dr Roose and the State, many are items published in supposedly reputable media organisations, or memes and the like, which are reposted without comment. Even so, in my assessment, some or many of the posts fit the kinds of statements caught by s 10(1)(c)(i) and 10 (1A)(a)(iii).

Conclusion

41. In spite of the powerful submissions made on the defendant’s behalf, I am satisfied this material and the opinions expressed by Dr Roose, if proved at the final hearing, would be capable of establishing that the defendant falls within the definition of a “convicted NSW terrorism activity offender”.

42. Accordingly, it is necessary to determine whether the material, if proved, might satisfy the Court at the final hearing that the State has established to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order.

The unacceptable risk test

The nature of the test

43. The Court at the final hearing must be satisfied “to a high degree of probability” that an eligible offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision: s 20(d) of the Act. That expression displaces the ordinary civil standard of proof. Section 21 of the Act provides:

21 Determination of risk

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

44. There are always inherent risks involved in cases such as these, but the task for this Court is to determine when those risks rise to the level of being “unacceptable”. The determination of whether a risk is “unacceptable” is an evaluative task having regard to the context and purpose of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51]. The assessment of risk must be undertaken to ensure, but not necessarily guarantee, the safety and protection of the community against serious terrorism offences: Lynn v State of New South Wales at [61]. It requires a consideration of the likelihood that the offender will actually commit a serious terrorism offence, if not kept under supervision, as well as an assessment of the magnitude of the consequences if the risk manifests. [20] Even a very small chance that a risk may manifest, will be unacceptable if it may have catastrophic or severe consequences.

    20. See, State of New South Wales v Naaman (No 2) [2018] NSWCA 328, State of NSW v Pacey [2015] NSWSC 1983 at [43] (Harrison J), State of NSW v Ceissman [2018] NSWSC 508 at [26]-[32] (Rothman J), State of New South Wales v Elomar (Final) [2021] NSWSC 411 (Hamill J).

45. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328. The Court of Appeal said at [29]:

“[…]the Court is then to determine whether that risk is or is not ‘unacceptable’. It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not “unacceptable” is not otherwise defined in the Act.”

46. A “serious terrorism offence” is defined as an offence against Part 5.3 of the Commonwealth Criminal Code [21] for which the maximum penalty is 7 or more years of imprisonment. The offences include engaging in a terrorist act (Criminal Code, s 101.1); possessing things connected with terrorist acts (s 101.4); doing acts in preparation for, or planning, a terrorist act (s 101.6); membership of a terrorist organisation (s 102.4); and providing support for a terrorist organisation (s 102.7). The State submits (correctly) that terrorist acts under s 100.1 of the Code include threats of such action and threats which are accompanied by the requisite intentions in s 100.1(2) namely intentions to advance: (a) a political, religious or ideological cause, and (b) coercing or influencing by intimidation a government or intimidating the public or a section of the public.

    21. Schedule to the Criminal Code Act 1995 (Cth).

Matters that must be considered in determining the application at the final hearing

47. In determining whether an ESO or an ISO should be made the Supreme Court “must” consider the non-exhaustive list of matters in section 25 of the Act. Section 25(3) is in the following terms:

25 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

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

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

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

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

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

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

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

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

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

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

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

(i) on release on parole, or

(ii) subject to a control order, or

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

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

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

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

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

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

(4) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).

48. I have considered the various matters referred to in s 25(3) in the context of the unacceptable risk test and the lower bar that the State must overcome in the preliminary hearing and in deciding whether to make an ISO. Some are obviously more relevant to the defendant’s case than others. In view of the time available to prepare this judgment, I will only address matters of particular relevance to my conclusion.

Criminal history

49. I must accept the State’s submission that the authorities establish that it is not necessary that past criminal activity be established to the criminal standard before it is relevant to the consideration of whether an unacceptable risk is established (or, here, that the material would justify such a finding at the final hearing). [22] Accordingly, I have considered police reports where no charges were laid and cases where the defendant was discharged after a defended hearing or otherwise. The criminal history is set out in an evidence summary under s 50 of the Evidence Act 1995 (NSW). This encompasses offences committed, or allegedly committed, in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. The facts and circumstances of the allegations and offending is contained in facts sheets, witness statements, complaints, court records and transcripts.

    22. State of NSW v Tiggelen [2018] NSWSC 1399 at [102]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14].

Early offending and reported incidents

50. The defendant’s criminal history commenced in 1994 when he was dealt with in the Echuca Children’s Court for property and dishonesty offences and placed on a 9 month youth supervision order. Other incidents were reported by Victoria Police involving wilful and obscene exposure, property damage and indecent behaviour. In 2001, he was fined in the ACT for possession of an unauthorised firearm. The defendant was sent to gaol for three months by a Magistrate in Mackay in Queensland for what is described as a “serious assault” and, at the same time, sentenced to 7 days imprisonment for obstructing a police officer. There are traffic offences recorded in 2002, 2007 and 2008. There are no recorded incidents between 2008 and the December 2015 when the defendant was placed on the South Australian equivalent of an apprehended domestic violence order (ADVO).

50. The State properly concedes that “much of [the defendant’s] earlier offending falls at the lower end of the scale of objective seriousness”. [23] However, it was submitted that there was “an escalation” in the offending more recently. It was emphasised that a lot of the defendant’s record involves threats being made against women. For example, the 2015 ADVO in South Australia involved the offender calling his ex-partner a “fucking whore” and saying “I’m going to kill every woman who pisses me off”. The details are set out in the victim’s affidavit in which she refers to the defendant’s mental health issues, his obsessive behaviour around his perception of a “conspiracy to have his dogs neutered”. [24]

More recent firearms offences, apprehended domestic violence orders and threats to police and health services

23. PWS at [55].

24. Ex A, pp 564 – 569.

52. In 2017 a series of firearms offences were dealt with in the Walgett Local Court. The charges were withdrawn or dealt with by a small fine and short good behaviour bond. In 2017 he was also charged with laying down explosives (petrol) with intent, again in Walgett, and the charges were withdrawn. It was alleged that the defendant had doused another man in petrol, who was also camping at the Grawin Opal Fields, following an altercation. The Magistrate found that the prosecution had not negatived self-defence. [25] An associated offence of affray was dismissed after hearing. Further firearms offences were committed (or charged) in 2018 and dealt with in 2019. The Walgett Local Court placed him on a three-year community correction order expiring on 11 February 2022. The facts of these offences are set out in Exhibit A. [26] No action was taken when breach proceedings were dealt with in Albury Local Court in July 2019. According to the summary of the defendant’s criminal history, the defendant was resentenced and imprisoned for three months for the firearms offences in October 2020 before the Walgett Local Court following proceedings for the breach of the community correction order. [27] That sentence expired on 25 January 2021.

    25. Ex A, p 379.

    26. Ex A, pp 358 – 714.

    27. Ex A, p 849.

53. The defendant’s interactions with the Walgett Police, and his grievances with the way he perceives he was treated, lie behind some of the more concerning incidents on his criminal record which involve threats directed to police officers generally and one female police officer in particular. This encompasses the index offence and the pending charge of intimidation for which the defendant is currently in custody, awaiting trial, with bail refused.

54. Unrelated to his disputes with the Walgett Police, the defendant was also placed on the Victorian version of an ADVO for the protection of his mother after nasty threats, including a threat to kill her “in the next 24 hours”. [28] In making her complaint, his mother referred to the defendant’s mental health issues which had been ongoing since he was a child. His “aggression” had escalated as he got older. Part of the allegation was that the defendant said he would “take great pleasure in killing you slowly” and had posted a list of women he wanted to kill on Facebook.

    28. See the complaint and order at Ex A pp 571-576 and a COPS entry at Ex A pp 206-207.

55. Further, and again unrelated to events in Walgett, the defendant was dealt with in Albury Local Court for an offence of using a carriage service to menace, harass and offend. The facts of this offence are set out in a facts sheet contained in Exhibit A. [29] The defendant had been staying in the mental health ward at St Vincent’s Hospital in Darlinghurst. He was “cleared and discharged” from the hospital on 13 May 2019. Upon discharge he was found to be in possession of a knife, which was confiscated by a nurse. Police were notified and the defendant was issued with a “move on direction”. At about 6:00pm that day the defendant left a voicemail message at the switch board of the hospital. He identified himself by name and went on:

“Now I’ve witnessed a female fucking patient attacking a nurse she didn’t even get put out. I used my words and I get thrown out with the police and everything and shes robbed my knife off me which is an antique. Now if I decide to send yous a parcel in the mail, you better have bomb squad check it, because, I am unstable and yous refuse to medicate me, yous refuse to help me, so if any women get killed tonight before I fucking disappear it is on the nurses head that fucking had me fucking put out and on the nurses head that provoked me. Once they realised I wasn’t happy. It states in my chart that I was to be placed in isolation yet yous couldn’t manage that without provoking me. Your feminist fucking organisation deserves to be blown fucking up.” [30]

29. Ex A, pp 398-401.

30. Ex A, p 399.

56. Magistrate Brender imposed a seven-month intensive correction order when his Honour dealt with the sentencing proceedings on 23 July 2019. [31]

    31. The remarks on sentence are set out in a transcript in Ex A, pp 406-408.

57. Another offence arising from the defendant’s grievance with the health services arose from the Facebook post referred to earlier in this judgment concerning the defendant’s thinly veiled threat to cause an explosion at a “woman’s day march”. The judgment of 11 November 2020 out of the Walgett Local Court shows that Magistrate Toose found the defendant not guilty because her Honour was not satisfied that the required intention was established beyond reasonable doubt. [32] However, it is worth repeating the relevant post which is set out in the judgment:

“I’ve had enough with this health feminist health department feminist police dept feminist mental health department next woman’s Day March I’m going to mix some things together I’m going to make some ammonia I’m going to make some nitrate I’m also going to get myself a small bottle of nitrogen hydrochloric acid and sulfuric acid and mix them together in an ice bath I wonder what I’m going to get from them ingredients the next woman to March might go off with a real bang.” [33]

The index offence of intimidating a police officer and related offence of using a carriage service to make a hoax threat

32. Ex A, pp 436 – 439.

33. Ex A, pp 400 – 401.

58. Returning to the defendant’s fraught relationship with the Walgett Police, the defendant was convicted after a defended hearing of the index offence of intimidating a police officer. A police fact sheet and the transcript of the hearing is in evidence. [34] An appeal against the conviction was dismissed by the District Court sitting in Dubbo. [35] It was established that the defendant told a Community Corrections Officer that he felt like he was being harassed by the police and that:

“I may as well go and blow up the police station and mental health.”

34. Ex A, pp 441 – 461.

35. Ex A, pp 462 – 467.

59. Certain hearsay evidence was disallowed but is relevant to the present application. The hearsay evidence involved threats to take police officers’ guns and shoot them in the face. Similar, if not identical, threats were made to Western NSW Health Service employees and recorded in notes taken by the Lightening Ridge Community Health Service. [36] The defendant reportedly repeated the threats to shoot police officers with their own guns and said “someone’s going to get hurt today … some cunts gunna die today, I will blow up a few things and show the police what I can do with my hands.” He said he was “sick of probation and parole and mental health”. He was described as displaying “grandiose themes” and self-reported “anger management” issues.

    36. Ex A, p 940 ff.

Pending charges of intimidating a police officer

60. The alleged facts of the charge currently pending against the defendant are more chilling. Again, the defendant is charged with intimidating a police officer. I was told that the Director of Public Prosecutions has elected to proceed on indictment and the case is yet to be listed for trial. (A second sequence, another charge of intimidating police, has been withdrawn.) Bail has been refused to this point although that issue may not have been pursued or ventilated thoroughly because the defendant has been serving the sentence resulting from the index offence.

61. The events giving rise to the pending charge occurred on 26 October 2020, shortly after the sentencing hearing for the index offence, and the threats and intimidation allegedly continued on 5 January 2021. Immediately after the sentencing hearing, at which Constable [REDACTED] gave evidence, the police officer was escorting the defendant to the Walgett Hospital for a mental health check when he mimicked her testimony saying, in a high-pitched voice, saying “I was scared. I was scared”. He continued:

“I’ll give you something to be scared about you lying bitch and you’ve just given me 12 months to plan it.”

62. The threat recorded above is taken from the witness statement of Ms [REDACTED] who went to say that she told a senior officer “he’s threatened to kill me again” and that “I don’t really want to be here”. [37] However, the officer remained with the defendant at the Hospital and had a lengthy conversation with him. By then, the officer had activated her body worn video camera and the defendant’s conduct and threats are captured on that footage. A transcript is included in the material. [38]

    37. Ex A, p 551.

    38. Ex A pp 469-491.

63. The defendant said he didn’t “give a fuck” that he was being recorded and the exchange included the defendant calling the officer a liar and telling Ms [REDACTED] to leave the country because “borderline personality disorder is not something to be fucked with” and suggesting he might resist arrest by snapping her neck. He said his threats were not just directed to Ms [REDACTED] but there was a “good list” of people he wanted to kill. He also complained about “that faggot Detective” and that he didn’t get a “proper section 32 a-fuckin’-assessment”. He described the detective in question as an idiot and said that “he’s military too.” He also claimed that he worked for the “AFP” and “came across a group of women who were hardcore paedophiles and human traffickers.” He said it was like “puttin’ a rape victim in a room and havin’ four 6 foot fuckin’ blokes standing ‘round’”. He said he was “emasculated”.

64. The defendant said he was only venting but the officer tried to explain that his conduct was frightening and intimidating to somebody who did not know him.

65. The defendant described many events that appeared to be the product of grandiosity or delusion. He said he had walked into the Rebel’s clubhouse and called them all cowards because he had been “buyin’ girls off their mothers for drugs”. He said there were 30 or 40 Rebels present and he got himself put in hospital. He talked about driving “iceheads” around Broken Hill, and turning in ice dealers in Walgett. He claimed, “the first lot I was cleaning up was heroin, because ice didn’t exist”. He said his date of birth was wrong on his military records because he was too young to join. I expect very little of this was based in reality.

66. The defendant spoke at length about his mental health issues, and treatment he had received. It was a discursive and bizarre conversation, to be sure. It also included various threats and the airing of many perceived grievances.

67. The second charge of intimidation arose from the continuation of threats against Constable [REDACTED] on 5 January 2021. This conduct is no longer the subject of a charge however is still relied upon by the state to contextualise the defendant’s earlier threats. [39] The substance of the threats is recorded in a fact sheet. [40] These threats were made when he was an inmate at Broken Hill Correctional Centre and was interviewed by a psychologist. He said he sought revenge against a police officer and that he had already told her directly he would harm her. He said he “would inflict one hour of torture upon her”, inflict “pain and violence” and did not see the officers “as human” because she had committed “an act of war” against him. He threated to “skin and then hang her from the town sign”. He considered his threatened actions to be justifiable as an “act of war”. He said an AVO would be of “no benefit” because he would not comply with it. He said he had experience with making weapons and access to explosives and that he “would go to war with all of the NSW Police”.

    39. Tcpt, 12/10/21, p 17.

    40. Ex A, pp 493 – 495.

68. The statement of the psychologist provides greater detail. [41]

    41. Ex A, 544 – 553.

69. When the defendant was charged with these offences, he received advice from the Aboriginal Legal Service but still spoke with the police. He said he had no memory of the incident at Walgett on “26 November 2020”. [42] As to the things he said to the psychologist, he claimed he was only “venting” but went on to say the psychologist was “lying because she is a [feminist]”. He allegedly volunteered that “a female Prison Guard or Police officer in uniform is in danger of physical violence from him”.

    42. As recorded in the Facts Sheet, presumably an error as the incident occurred one month earlier.

70. The use of the expression “venting” was subject to lengthy submissions and I accept the State’s position that, as a form of self-administered therapy, or an excuse or justification, is does not seem to work. However, it is interesting that the defendant’s use of this word, and explanation for his conduct, was similar to that which succeeded before Magistrate Toose in the case concerning threats directed at St Vincent Hospital staff. [43]

Scrutiny of criminal record and as it relates to risk and the defendant’s engagement with terrorism and violent extremism

43. See above at [57].

71. The defendant has never committed an offence that could be described as a serious offence of violence. I am not here referring to the definition that would give rise to the possibility of a supervision or detention order under the associated legislation applying to serious sex and violence offenders, a matter referred to by Senior Counsel but one that is not relevant to the decision I have to make. Rather, I am emphasising that, for all of his bluster and threats of violence, the evidence does not establish that the defendant is a violent offender. He has made a number of threats to commit extremely violent offences, including threats to kill, cause explosions, and to shoot and “skin alive” police officers. His threats have caused distress and fear in his targets, and apprehended violence orders have been applied for and granted. However, he has never acted on those threats or breached the apprehended violence orders in any serious way.

72. The defendant has never been charged with any terrorism offence either under state or federal law. His engagement with male supremacism and right-wing groups based largely in the United States, has not resulted in any charge of supporting or offering support for a terrorist group. While many of the defendant’s threats have been directed towards women, and while the surrounding facts include misogynistic and sexist comments, they also include threats which are not gender based. His proposed war against NSW Police and his threat to blow up the Walgett Police Station are examples. The detective involved in the prosecution of the index offence was a male. The charges of intimidation, using telephones, messages and social media posts to make threats, appear to have been responsive to personal grievances.

73. Of significant concern and relevance are the offences alleging the possession of firearms, other weapons and disclosing a knowledge of explosives and threats to use the same. Of further concern, in terms of the danger the defendant may represent, is his psychiatric condition, an issue that jumps off the page when reading the court papers, police and corrective services reports.

74. There are examples of the defendant breaching court orders, including community correction orders and non-compliance with firearms prohibition orders. The facts of some of the offences demonstrate the defendant’s frustration with people and organisations that are charged with the responsibility of supervising him, policing him and caring for him.

75. Of itself, the defendant’s criminal history, including charges which were withdrawn or resulted in a finding of not guilty, would not justify the making or an ESO under the Act. However, the criminal record is only one aspect of the State’s case and the other body of evidence and reports must be considered along with the criminal history.

Social media

76. In the time available, it is impossible to reproduce in any meaningful way the plethora of material tendered in relation to the defendant’s Facebook presence. However, I have considered that material carefully. It is summarised in various ways throughout the material including in the Affidavit of Alexander Clark, [44] the comprehensive analysis of Dr Roose, [45] and in various facts sheets and other reports. A large portion of volume 3 of Exhibit A consisted of screen shots of the defendant’s Facebook profile or account. [46]

    44. Ex A, p 216-226.

    45. Ex A, pp 1107-1122.

    46. Ex A, pp 719-836.

77. Many of the items reproduced in Exhibit A are items apparently reposted from the pages of mainstream, not to say reputable, media sites. Many of the items are troubling, in poor taste and betray a nasty streak of misogyny. However, the defendant did not create them or explicitly endorse them. For example, the defendant reposted an item from the Dailystar.co.uk entitled “evil husband seals wife’s vagina with glue after she cheated on him.” It is accompanied by an image of an open tube of glue. That choice of image was chosen or approved by the editors of the Daily Star. Another item is headed “Man requests trial by combat to settle custody battle with ex-wife” and refers to a court case in Iowa involving a Kansas man seeking to engage in a sword fight with his ex-wife and her attorney. Another Facebook user, not the defendant, posted this with a comment about the unfairness of “the system”. It seems that the item itself, the headline and accompanying image of two men holding swords, was originally posted by 7NEWS.COM.AU.

78. The defendant posts many comments that betray a right-wing political bias and a misguided, paranoid, misogynist mindset. These are set out in the report of Dr Roose. He also makes threats, many directed to women or motivated by an underlying misogyny. However, his animosity and threats of retribution and violence are not directed exclusively towards women or women’s groups. To provide one example, on 26 January 2020 he posted:

“fuk the health department fuk the government fuk da police F*** everybody you can or get f****the health departments going to be the first fucket (sic) Target.”

79. Many of the images found on a review of his Facebook account include right wing politicians (former US President Donald Trump, Australian Senators Pauline Hanson and David Leyonhjelm) and media personalities (Rush Limbaugh, Tucker Carlson). There are images calling for “the death penalty for child killers” and many anti-feminist slogans. This evidence generally supports the State’s case that the defendant has a strong interest in, and supports, men’s groups and has a staunchly anti-feminist and extremely right-wing world view. It also shows that the internet, and social media platforms like Facebook, creates a space where all sorts of unpalatable and potentially dangerous views are ventilated, shared and encouraged.

80. The defendant has engaged with what many – perhaps, hopefully most – people would think are ill-considered and shallow ideas and opinions. He has published posts and opinions that are equally troubling and shallow, and seemingly without filter or restraint.

81. When read in context of the rest of the evidence, the Facebook material is important, for reasons set out in the submissions of the State and the report of Dr Roose, but it is difficult to tell exactly what it means in terms of the issues to be determined by the Court. The social media evidence, read with the opinions of Dr Roose, is evidence that must be taken into account under s 25(3)(l) because it demonstrates beliefs of an ideological nature that may, taken at its highest, suggest support for terrorism activities.

Risk assessment and other reports

Risk assessment report

82. A “confidential psychological risk assessment report”, prepared by Dr Sweller and dated 13 July 2021, was tendered. [47] I have considered the entirety of its contents including its various conclusions as to the defendant’s risk factors and results coming out of a variety of predictive assessment tools. The defendant was assessed as being a “medium risk of general re-offending” and a “moderate risk of violent re-offending”. These results came from statistical tools well known to judges dealing with matters of this kind under related legislation.

    47. Ex A, pp 976-999.

83. The assessment tools concerned with the risk that an offender will commit terrorism offences or engage in extremist violence (VERA-2R and TRAP-18) are not statistically based in the same way and do not purport to provide “actuarial measure of violence risk”. The VERA-2R was described by Dr Sweller as providing “a structured professional judgement based assessment of the risk of extremist violence across multiple domains.” The TRAP-18 was said to provide “a structured professional judgement assessment of persons considered to be at potential risk of lone actor or targeted extremist violence”.

84. Based on these tools and a review of the defendant’s history, Dr Sweller concluded he was a “medium-high risk of violent extremism, politically motivated violence or terrorism”. She described his “idiosyncratic and global grievances”, risk scenarios and “potential pathways to engaging in targeted violence”. She said the defendant “does not currently appear to hold an ideology that explicitly justifies the use of violence against women” but suggested his online “research” suggested “his belief system appears to be on the periphery of other movements that do [justify violence against women].” This included “Incel and alt-right movements”. She expressed the opinion that his personal grievances “might lead to greater risk of engaging in ideologically motivated violence”. She went on to say “he might not progress further than expressing his views online” but noted his behaviour “has the potential to influence others to perpetrate acts of violence against women”. Dr Sweller was concerned about his access to guns and apparent understanding of explosives albeit that he “reports no motivation to engage in violent extremism, politically motivated violence or terrorism activity”. Even so, “he expresses intense emotions in relation to his grievances”.

85. Dr Sweller considered the defendant to be suitable for an ESO and thinks “he may benefit from intensive supervision and case management”.

Management reports and the possible conditions of an ISO

86. A risk management report was prepared by a Community Corrections Officer (Brooke Maddock) and endorsed by Shane Bagley of the Terrorism High Risk Offender Unit. [48] It set out a large number of conditions to which the defendant could be subjected if he were placed on a supervision order and explained the benefits of each. There were more than 50 proposed conditions. The report was based in part on the findings of Dr Sweller and identified the risk factors and the defendant’s behaviour in custody. An addendum to the report, authored by Detective Sergeant James, clarified the terms of a condition allowing for search and seizure and indicated a condition that was “no longer sought by the State of NSW”.

    48. Ex A, pp 1004-1020.

87. I have also considered the contents of a “NSW Police Force ESO Management Report” which explained the manner in which the various conditions proposed by the State would be administered and the benefits of each to the protection of the community and supervision and rehabilitation of the defendant. [49]

    49. Ex A, pp 1030-1061.

88. An affidavit of Daniel Pumphrey filed after the hearing, by consent and at my request, concerned the accommodation available to the defendant if he is placed on an order. It confirmed that no accommodation in western New South Wales, the defendant’s preferred place of residence, is yet to be secured. It set out various inquiries and steps that have been taken to find appropriate accommodation and the difficulties that have been encountered, some of which concern a mystery surrounding whether the defendant has engaged with the NDIS. The only certain accommodation that has been secured is in Western Sydney at Kingsford. The defendant has indicated a distinct preference not to be located in Sydney, although more recently he said he would be content to live in whatever accommodation could be found for him.

Dr Roose

89. I have dealt relatively briefly with the opinions of Dr Roose in the context of the question of whether the defendant met the definition of a NSW terrorism related offender under s 10 of the Act. I accept the submission of Senior Counsel for the defendant that Dr Roose does not have the expertise to provide persuasive opinions concerning an assessment of risk. It was submitted in writing:

“The defendant also objects to the opinion evidence of Dr Roose to the extent he purports to provide an opinion as to the state of mind of the defendant at the time of making a particular statement. Dr Roose is a political scientist, he has no expertise in the risk assessment of individuals and is not capable of commenting, or expressing an opinion, on the intention or motivation of the defendant.”[50]

50. DWS at [12].

90. At the preliminary hearing, this submission was reinforced:

“Dr Roose also, in the latter part of his report, expressly comments on the matters that go to the police charge sheets, transcripts and fact sheets in support of the index offence, some of his historical offences and the pending intimidation offence. The submission that’s made on behalf of the defendant is simply that the assessment of that material is a matter for your Honour, not for Dr Roose. Dr Roose has no relevant expertise in risk assessment. He’s got no relevant expertise as a psychiatrist or a psychologist.” [51]

51. Tcpt, 12/10/21, p 40.

91. Even so, the report provides important information of the type of ideologies that exist in the realm of “male supremacy”, whether particular groups advocate violent extremism or terrorist acts, and the extent to which the defendant has engaged with those groups and ideologies (online). It also provides a useful pathway through the defendant’s use of social media and what that use may portend as to his interests and beliefs. It also reinforces that which may be obvious: that the internet plays an important role, and is a “core mechanism” for the radicalisation of people, the spread of violent and extreme ideologies and the particular vulnerability of people who suffer from mental health issues to such material.

92. As I have already observed, Dr Roose found the link between the defendant and the more extreme and dangerous groups (“Incels” for example) to be “inconclusive”. However, his report is replete with instances of other groups promoting, justifying and normalising violence against women in a political and ideological context. His opinion is that it is “very likely” that some Australian men have been radicalised by these male supremacist and anti-feminist groups. The defendant’s engagement with this material (by reposting) demonstrates an interest in the subjective matter and, in combination with the things he has written on social media, gives rise to a concern that he may fall into that unfortunate category of Australian men.

Views expressed by the sentencing Judge

93. As to the index offence, the transcript of the findings on conviction of the sentencing Judge were included in the material, as was the judgment on the dismissal of the conviction appeal. There was no appeal against the sentence.

94. I have been unable to find the remarks on sentence in the material in Exhibit A. However I accept the State’s submission that the sentencing Magistrate found the sentence was mitigated by the defendant’s disadvantaged background and mental health issues. [52] On the other hand, the offence was committed while the defendant was subject to a CCO and after the imposition of an Intensive Corrections Order (‘ICO’) for similar offences. [53]

    52. PWS at [77].

    53. Ibid.

95. There is nothing to suggest that the Magistrate made any remarks relevant to the defendant’s ongoing supervision or desirability that he be subjected to the kind of strictures that would exist under an ESO.

Mental health issues

96. It is clear that the defendant suffers from some form or forms of psychiatric illness and this has plagued him throughout his life. This is significant in various ways. For one thing, his mental health issues are likely to make him more vulnerable to influence by material published on the internet. On the other hand, many of his threats are likely to be coloured and exaggerated by what appear to be delusional beliefs. For example, his threats of creating bombs and his purported knowledge and capacity to carry out those threats, are more likely to be grandiose delusions rather than indicative of his actual capacity to make a bomb. The State made a relevant concession in its written submissions:

“The plaintiff accepts that some of [the defendant’s] statements are fanciful, and others do not indicate an advanced or realistic understanding of the chemical processes required to make explosives.”[54]

54. PWS at [132].

97. This concession must be read in conjunction with the evidence of Peter Ballard. [55] Mr Ballard was unable to provide an opinion or comment on the defendant’s expertise and ability to manufacture explosives. He expressed some scepticism as to the plausibility of creating explosives using the ingredients and processes referred to by the defendant in his Facebook posts. For instance, the defendant refers to “nitrogen hydrochloric acid”, a substance of which Mr Ballard is not aware. On the other hand, Mr Ballard says that “information regarding the manufacture of homemade explosives is readily available online”.

    55. Ex A, pp 232-240.

Treatment and rehabilitation programs

98. A further matter to which the defendant’s mental illness is relevant is the availability of treatment plans and orders that can be made under mental health legislation.

99. The defendant appears to have variable interactions with health professionals. At times he has made the kinds of threats referred to throughout this judgment, while there is also evidence that the defendant has generally been compliant with medication and treatment for his mental illness. [56] Further the defendant has at times expressed a willingness and desire to continue psychiatric treatment.

    56. Ex A, pp 312, 313, 317, 699.

Other forms of control, management of supervision

100. There are other forms of control, management and supervision available to the state to manage any risk the defendant represents.

Conditional release under the Bail Act

101. The defendant’s sentence for the index offence expires on 25 October 2021. However, he remains in custody with bail refused in relation to the offence of intimidation which remains pending before the Local Court and which will ultimately be resolved at a trial in the District Court. Present listing arrangements are such that he is unlikely to receive a trial date in the near future. When, or if, the defendant is released on bail, there are variety of conduct conditions that could be imposed. These include conditions amounting to house arrest, the imposition of a curfew, restrictions on the use of telephones and access to the internet, prohibitions on movements and associations, reporting to local police and (if requested by a prosecutor) certain enforcement conditions.

Orders under mental health legislation

102. The defendant is subject to an existing Forensic Community Treatment Order until 19 August 2022. [57] It is to be reviewed on 19 November 2021. On its present terms, the defendant is required to attend appointments with his psychiatric case manager once a month and the treating psychiatrist once every eight weeks. He is required to take medication as prescribed by the treating psychiatrist and must comply with blood tests. I was told at the hearing, if he is released, the order will become a Community Treatment Order. While the State contended this order will have “limited efficacy”, it at least ensures the availability of psychiatric treatment. Compliance with such an order could be included in conditions of bail, if bail is granted.

     57. Ex A, p 1145

Firearms Prohibition Orders

103. The defendant is also subject to a firearms prohibition order which has been in effect since 24 February 2017. The legislation under which that order is made empowers police officers to search the defendant’s home or vehicles and to detain him to determine whether he has committed a firearms offence: Firearms Act 1996 (NSW), Pt 7. There is no expiry date for that order and it will remain in effect unless revoked by the Commissioner of Police or if the applicant succeeds in seeking a review of the order.

Apprehended Violence Order

104. The defendant is also subject to a provisional apprehended violence order (AVO) taken out on behalf of Constable [REDACTED], the alleged victim of the defendant’s pending criminal charge. The AVO prohibits the defendant from going to any place where the protected person lives or works including the townships of Walgett, Carinda, Grawin Opal Fields, Cumborah, Lightning Ridge and Collarenebri.

105. There is a similar order, issued out of the Victoria Magistrates Court calculated to protect the defendant’s mother, against whom he also made threats.

Protective policing

106. Apart from any court orders, it is also to be expected that the police would employ ordinary policing strategies and remain vigilant if the defendant is released to bail or at the conclusion of the criminal proceedings. As Senior Counsel for the defendant observed at the hearing, there is a “fixated persons unit” within the NSW Police Force that could be engaged if the fears expressed in the course of the present application, and in a number of the documents relied on by the State, remain in existence when the defendant is released.

Conclusion as to risk and whether the supporting documentation would, if proved, justify the making of an extended supervision order

107. I reject the implication in the defendant’s submission that the State brought the application otherwise than in good faith and the explicit contention that the summons represented “an attempt to use the intrusive powers of the TRHO Act to unnecessarily control a person who has made offensive statements to police”. However, I accept the submission that the material, if proved, would not justify the making of an ESO and that the material would not justify a finding that the defendant represents an unacceptable risk of committing a serious terrorism offence if not kept supervised under an order.

108. While the threats made by the defendant over the years have become increasingly strident, histrionic and severe, the reality is that he has never carried out any of the threats he has made. He has never committed an offence involving actual violence of any severity. He has never carried out a terrorist act and there is no evidence that he has come close to committing such an act or an of violent extremism. He expresses bad ideas. He posts stupid things on Facebook. He appears to be a misogynist and resents police, mental health workers and correctives officers doing their jobs when that interferes with his liberty and freedom. He harbours disproportionate grievances and lashes out verbally and lyrically in response. His mental health issues are fuelled by the material he accesses on the internet.

109. I accept the submissions of Mr Johnston SC that the risk assessment made by Dr Sweller is difficult to reconcile with the defendant’s actual history:

“It is submitted that Dr Sweller’s analysis and clinical assessment is in stark contrast to the lack of violent physical offending over the Defendant’s lifetime, and proper consideration as to whether the risks perceived as possible, are in fact likely in the present case.”[58]

“That distinction is relevant because it goes in part to his risk of committing a serious terrorism offence and your Honour will have picked up from the risk assessment that was performed by Dr Sweller that in relation to the … (to assist your Honour, volume 3, p 989) … Dr Sweller refers to the fact that she’s administered the normal Level of Service inventory revise tests in relation to his risk of simply committing a further violent offence and he’s assessed as a medium risk in relation to that. That’s perhaps not unexpected given his criminal history that this, in the absence of, although he has made a number of statements over the years that may have threatened violence, he hasn’t actually gone on to commit a serious violence offence following up on that and in that regard, he’s assessed as a medium risk of committing any further violent offence.” [59]

58. DWS at [146].

59. Tcpt, 12/10/21, p 34.

110. As to the risk scenarios posited by Dr Sweller in relation to the defendant committing an act of terrorism or violent extremism, it was submitted: [60]

“The risk scenarios identified by Dr Tamara Sweller are said to involve two potential pathways to engaging in targeted violence:

(a) Relating to his idiosyncratic grievance that leads to targeted violence towards a specific woman who he perceives as responsible for his mistreatment.

OR

(b) Framing of his grievances within the men’s rights ideology, engaging in violent extremism in order to advance his socio-political ideology and cause.

It is submitted that the first suggested pathway is not an unacceptable risk of committing a serious terrorism offence in circumstances where his grievances are not targeting a specific group of the population based on gender. As outlined above, [the defendant] has a history of the same sorts of behaviours, threats or venting where he has a perception of being the victim in circumstances that involve both males and females. Likewise, there is no evidence that [the defendant] has the capacity to engage in violent extremism in an attempt to advance his socio-political ideology. The defendant’s social media profile is limited, his method of highlighting perceived issues is sharing posts made by others, or news reports about specific instances where a woman is the aggressor. He does not have a propensity for violence demonstrated by his history. This is an example of a theoretical possibility rather than a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence.

The possible scenarios related to these pathways are yet more examples of obscure possibilities rather than probabilities, each of which are not based on evidence of physical behaviours, but rather rely implicitly on a number of steps which have not occurred, and of which there is no evidence are likely to occur.”

60. DWS at [132]-[135]

111. I generally accept these submissions and, while I have taken Dr Sweller’s opinions into account along with the whole of the evidence, I am far from convinced that, if accepted, the risk assessment by itself or along with the other material, would justify the making of an ESO on the grounds that there is an unacceptable risk that the defendant would commit a serious terrorism offence. Of course, there is always a risk in releasing an inmate into the community, but the Judge conducting the final hearing would not be required to guarantee that there is no risk. Rather, the Judge would be required to conclude to a high degree of probability that there exists an unacceptable risk of the kind identified is ss 20 - 21 of the Act.

112. Dr Sweller’s opinion that the defendant is likely to “continue to communicate his thoughts to others, due to his impulsivity and personality characteristics” is one that I (inevitably) share given his history of unfiltered communications online, in telephone calls and messages, and when interacting with those in authority. However, these communications do not give rise to an unacceptable risk that he will commit a serious terrorism offence.

111. In reaching my conclusions, it is important to remember that the “unacceptable risk” being evaluated is the risk of a particular type of crime; namely a serious terrorism offence. It is not the risk that the defendant may commit any criminal offence, or any crime of violence, or even an extremely grave crime of violence.

112. The risk that the defendant would commit an act of terrorism is remote if not infinitesimal. There is no evidence that the loose groups of “male supremacists” identified by Dr Roose and with which the defendant is said to sympathise are specified to be “terrorist organisations” under the regulations: Criminal Code, s 102.1(1). Even if they were, or if they were proved to fall within the definition of “terrorist organisations” in paragraph (a) of s 102(1), the defendant’s activities online (or elsewhere) are unlikely to give rise to offences under ss 102.3, 102.5, 102.7 or 102.8 of the Criminal Code. The risk that he may fall foul of those latter provisions, by his unfiltered activities online, is not an unacceptable risk that would justify the making of the orders sought by the state.

Orders

115. For those reasons, I made the following orders:

1. The application for an interim supervision order and orders under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) is dismissed.

2. The summons is dismissed.

3. If the defendant seeks an order for costs, he is to file written submissions of no more than 5 pages by 5:00pm on Tuesday 2 November 2021.

4. The plaintiff may file any submissions in response, not exceeding 5 pages, by Tuesday 9 November 2021.

5. I direct the parties to consult to determine whether an agreed position on the question of costs can be reached.

**********

Endnotes

Amendments

28 October 2021 - At [115], order 3 deleted.

29 October 2021 - Cover page amended.

29 October 2021 - Cover page amended.

Decision last updated: 29 October 2021