Attorney-General of the Commonwealth of Australia v Amin

Post-sentence conduct

1. The defendant has been in custody since 16 June 2018. He was housed at the High Risk Management Correctional Centre (HRMCC) Area 1 from 4 August 2018, and was transferred to HRMCC Area 2 on 1 November 2022. This move was described by the Serious Offenders Review Council (SORC) as "the start of the transition program pathway". On 25 May 2022, the SORC reduced the defendant's custodial classification, and he was subsequently transferred to Macquarie Correctional Centre on 29 September 2022, where he remained until his release from custody on 15 October 2023.

Conduct in custody

1. The defendant progressed adequately through the HRMCC classifications, and as set out by both Dr Dewson and Dr Davis in their respective reports, the defendant's case notes demonstrate that he was generally described by staff in positive terms.
2. He had six violations at HRMCC, including an incident on 21 August 2020, where he reportedly "refused further directions from response staff which resulted in physical force and chemical munitions being used against him". The defendant explained that he would have been in danger from other inmates had he not joined with them in refusing the directions. Another incident involved the defendant having a fight with another inmate, with both men receiving "minor facial injuries". A case note in relation to that incident records that the defendant was "found to be the victim" and accordingly, behaviour management review was dismissed.

Participation in programs, education, and training

1. As a result of his classification, the defendant did not have an opportunity to participate in programs until late 2021.
2. On 8 March 2022, the defendant commenced the EQUIPS Foundation program to address and gain insight into his offending. He completed this program on 5 July 2022.
3. The defendant commenced the CONNECT program on 9 August 2022 and completed the program on 30 May 2023. In relation to the defendant's participation in the CONNECT program, a Corrective Services pre-release report dated 15 February 2023 stated that "records indicate his involvement thus far is reassuring and he is displaying encouraging insight into his emotional state and thought patterns prior to his incarceration".
4. The defendant also completed two sessions of the Digital Literacy Course, and, upon his transfer to Macquarie Correctional Centre, commenced employment in the heavy engineering workshop, before working in laundry services. In around May 2023, the defendant enrolled in a Certificate II in Business.

Engagement with deradicalisation programs

1. While in custody, the defendant was eligible to participate in the Proactive Integrated Support Model (PRISM), a voluntary case management service available for inmates who are identified as "promoting, or being at-risk of, radicalisation or violent extremism". On 14 September 2022, the defendant was also allocated to the Proactive Assessment and Intervention Service (PRAXIS), a voluntary service that "uses a multidisciplinary approach to support individuals and their families to build resilience to radicalisation through diversion, disengagement, and desistance". Dr Dewson and Dr Davis gave evidence about the efficacy of such programs, discussed below.
2. The defendant did not complete any deradicalisation programs while in custody. While he expressed a willingness to participate in other courses, he expressed reluctance to engage with these deradicalisation programs from as early as 20 January 2020. The defendant undertook psychological testing to determine his suitability for the PRISM program but took issue with the contents of the resulting report. Further, at various points, the defendant expressed concerns that his engagement in these programs could result in "information being used against him", and that the "psychologists are not properly trained to be able to understand the issues discussed". He also expressed concerns regarding an inquiry into PRISM and stated, on several occasions, that he would not participate in the program under legal advice until a review of the program had been completed.
3. On 4 August 2023, a Corrective Services case note recorded that the defendant was "open to counselling and guidance from approved imams, as his offence was based on religious views". The case note also recorded that, on an offer for referral to psychology services, the defendant declined stating, "psychology would not be able to give the support for this, as it was religious based".

Parole

1. The defendant became eligible for release on parole on 15 June 2022. He was refused parole by the plaintiff.
2. He was again considered for release to parole on 12 June 2023, but was again refused parole by the plaintiff.

Legislative framework

1. Division 105A of the Criminal Code establishes a regime for the imposing of "post-sentence orders", which means either a continuing detention order (CDO) or an ESO: Criminal Code, 105A.2(1).
2. The object of Division 105A is set out in s 105A.1, as follows: 105A.1 Object The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to: (a) a continuing detention order; or (b) an extended supervision order.
3. Section 105A.6A(2) of the Criminal Code provides that, if an application for an ESO in relation to a terrorist offender is made to the Supreme Court of a State or Territory, the Court may determine the application by either making an ESO under s 105A.7A or dismissing the application.
4. The test for the making of an ESO is set out in 105A.7A, as follows: 105A.7A Making an extended supervision order (1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if: (a) any of the following applies: (i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender; (ii) … (iii) … ; and (b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and (c) the Court is satisfied on the balance of probabilities that: (i) each of the conditions; and (ii) the combined effect of all of the conditions; to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.
5. A "terrorist offender" is defined in ss 105A.2 and 105A.3(1). For present purposes, a "terrorist offender" includes a person who has been convicted of an offence against Part 5.3 of the Criminal Code carrying a sentence of imprisonment of seven years imprisonment, who will be at least 18 years old when the sentence relating to that conviction ends, and where one of the preconditions for the making of the post-sentence order in s 105A.3A is satisfied. Those preconditions include that the person is detained in custody serving a sentence for a relevant offence (which was the case when the first ISO was made), or an ESO or ISO is in place in relation to the person: s 105A.3A(6).
6. Section 105A.7A(2) provides that, in determining whether the conditions to be imposed on the offender are "reasonably necessary, and reasonably appropriate and adapted", the Court must take into account the object of Division 105A as a "paramount consideration" (see s 105A.1, set out above).
7. The plaintiff bears the onus of satisfying the Court of the matters set out in ss 105A.7A(b) and 105A.7A(c).

Formal requirements: s 105A.7A(1)(a)

1. The satisfaction of the formal requirements was not in dispute. Section 105A.5 sets out the requirements for an application for a post sentence order. I am satisfied that, in accordance with that provision, the application has been made by the Attorney-General (who is the AFP Minister) to this Court (s 105A.5(1)) and that the application was not made more than 12 months before the defendant's sentence of imprisonment ended (s 105A.5(2)).
2. I am also satisfied that the application includes all of the matters required to be included in the application, as set out in s 105A.5(3). In particular, I note that the Court has been provided with a statement of agreed facts, a copy of the proposed conditions, and an explanation as to why the proposed conditions should be imposed.
3. I am also satisfied that the defendant is a terrorist offender as defined in the Criminal Code. The defendant has been convicted of an offence under s 101.6 of the Criminal Code, which is a "serious Part 5.3 offence" as defined in the Division (s 105A.2). He is over the age of 18 (s 105A.3(1)(c)) and an ISO is currently in force in relation to him (s 105A.3A(6)).

The issue - whether the defendant poses an unacceptable risk of committing a serious Part 5.3 offence: s 105A.7A(1)(b)

The legislative requirements

1. The formal requirements having been satisfied, the real issue to be determined is the test posed by s 105A.7A(1)(b): 105A.7A Making an extended supervision order (1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if: … (b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and …
2. As noted above, "a serious Part 5.3 offence" is an offence against Part 5.3 of the Criminal Code that carries a sentence of imprisonment of seven years or more.
3. Further, in addition to any other matters I consider relevant, I am to have regard to the matters set out in s 105A.6B(1) of the Criminal Code: 105A.6B Matters a Court must have regard to in making a post-sentence order (1) In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters: (a) the object of this Division; (b) any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under: (i) section 105A.6; or (ii) section 105A.18D; (c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment; (d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by: (i) the relevant State or Territory corrective services; or (ii) any other person or body who is competent to assess that extent; (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs; (f) 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 for any offence referred to in paragraph 105A.3(1)(a); or (ii) subject to a post-sentence order, interim post-sentence order or control order; (g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a); (h) the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender; (ha) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order; (i) any other information as to the risk of the offender committing a serious Part 5.3 offence.

Determining unacceptable risk

1. The term "unacceptable risk" is not defined in the Criminal Code. It is an evaluative exercise to be conducted having regard to all the evidence. In Attorney General of the Commonwealth of Australia v Pender (Final) [2022] NSWSC 1773, N Adams J said (at [170]-[174]): "170 The term 'unacceptable' risk is not defined in the Code, but it was common ground that the principles derived from the decisions concerned with similar provisions in the THRO Act and the CHRO Act, upon which Div 105A was modelled, are applicable. It has been held in those decisions that the phrase 'unacceptable risk' should be given its everyday meaning within its context and having regard to the objects of the relevant Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ('Lynn') per Beazley P at [58], with whom Gleeson JA agreed. The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] per Basten JA. 171 In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, '[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate'. 172 In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]: '[43] It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.' 173 In Minister for Home Affairs in Benbrika [2020] VSC 888, the Victorian Supreme Court considered an application for a CDO under Div 105A. In that context, the decision of the NSW Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (concerning the THRO Act) was cited with approval in the following passage at [405]: 'In NSW v Naaman (No 2), the NSW Court of Appeal said of the relevantly similar s 20(d) of the THRO Act (which provides that the Supreme Court may make an extended supervision order if, amongst other things, the 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') that it is 'forward looking' and that it will be 'relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct'. The Court observed in relation to whether a risk is or is not 'unacceptable' that even if there is a slim probability of the offender committing a terrorist act, that risk may be unacceptable having regard to the consequences of such an act. Similar views have been expressed by a number of single judges of the Supreme Court of NSW considering cases under the THRO Act.' 174 The court must be satisfied that the offender poses the relevant unacceptable risk 'after having regard to matters in accordance with section 105A.6B'. Those factors are extracted above at [137]. I have had regard to that non-exhaustive list of considerations as well as to the object of the Division, being to 'ensure safety and protection of the community'."
2. As her Honour observed, whether a risk is unacceptable requires consideration of the likelihood of the risk eventuating and the seriousness of the consequences if the risk does eventuate, such that, even where is a low probability of the offender committing a terrorist act, the consequences of such an act may make the risk unacceptable: New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [29].
3. There is one important qualification to the use of authority that is relevant to the State provisions. The relevant test here is whether I am "satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk". That is to be contrasted with s 5B(d) of the Crimes (High Risk Offenders) Act 2006 (NSW), s 20(d) of the Terrorism (High Risk Offenders) Act 2017 (NSW), and applications for a CDO pursuant to s 105A.7 of the Criminal Code, which require the Court be "satisfied to a high degree of probability". While there may be, at first blush, some difficulty in applying a burden of proof to an evaluative exercise which is binary in nature (that is, a determination of the presence or absence of an "unacceptable risk"), Division 105A of the Criminal Code clearly distinguishes between the need to be satisfied "to a high degree of probability" for the purposes of a CDO and the lesser test of "the balance of probabilities" for an ESO. The former test has, where used in the State legislation, been explained as requiring that the Court "must be satisfied of the existence of a relevant risk to a higher degree than would be the case if the normal civil standard of proof applied": State of New South Wales v Davis (Preliminary) [2020] NSWSC 754, per Hoeben CJ at CL at [28(3)]; and see also New South Wales v Naaman (No 2) at [29(3)]. The presently applicable test being the simple balance of probabilities, the additional burden that would apply to an application for a CDO has no role to play.
4. The plaintiff also took the Court to CXZ v Children's Guardian [2020] NSWCA 338, a case dealing with the assessment of future risk in the determination of a working with children clearance. The present context is somewhat different to that case. In CXZ v Children's Guardian, and also commonly in the family law context (dealt with in M v M (1988) 166 CLR 69; [1988] HCA 68), the past allegation said to provide the foundation for the concern of future risk is disputed. In the present context, no doubt attends, at least the critical behaviour, that is, the commission of the offences which provide the foundation for the application. I do, however, accept that the offences are to be considered together with other evidence, which allows for any uncertainties as to matters such as the defendant's intentions surrounding the commission of the offences and his renunciation of his former ideology to be taken into account. I am not engaged in determining the occurrence of either past or future events, but rather, I am making a finding of fact as to a present state of affairs, albeit one related to the potential occurrence of a future event, necessarily informed by past events. I accept the approach to be taken is as discussed in Minister for Home Affairs v Benbrika [2020] VSC 888, where Tinney J said (at [394]-[395]): "394 It is worth noting that it is the overall case of the plaintiff which needs to be proved. … 395 This does not mean, however, that every item of evidence, or every aspect of the case, must be established to … any particular standard. What is required is that in the end, I am satisfied to the requisite standard of the case made on behalf of the plaintiff."

The evidence

1. The evidence in relation to each of the matters in s 105A.6B available at the time of the determination of the ISO by Weinstein J was summarised by his Honour in Attorney-General (Cth) v Amin (Preliminary) at [24]-[38]. I adopt his Honour's summary of that material.
2. In addition to the material before Weinstein J, Dr Davis provided his expert report and Dr Dewson her supplementary report. Detective Superintendent Nicolson provided a supplementary affidavit and a further supplementary affidavit. In his second affidavit, Detective Superintendent Nicolson provides evidence responsive to changes made to the conditions sought by the plaintiff. He gives evidence of the potential for the conditions currently sought to ameliorate the risk raised by the defendant. In his third affidavit, Detective Superintendent Nicolson provides evidence of the AFP's approach to implementing supervision orders. This evidence is provided in the context of evidence of the practical effect of the ISO that has been in place since the defendant's release from custody on 15 October 2023.
3. A further affidavit of Ms Kirkwood dated 26 October 2023, supplementary to her affidavit of 5 October 2023, addresses the effect of amendments to the proposed conditions, the earlier conditions having been addressed in her first affidavit.
4. The defendant also put before the Court the evidence noted above.
5. While it is necessary to have regard to all of the evidence, the focus at the hearing was on the evidence of Dr Davis and Dr Dewson, and, to a lesser extent, that of Detective Superintendent Nicolson. Dr Dewson and Dr Davis were both well-qualified to give evidence of their expert opinions. In the present context, I note that Dr Davis has had extensive involvement in the area of risk assessment, including risk assessment in the context of violent extremism.
6. Each of Drs Dewson and Davis were briefed with a significant quantity of background material which, while not replicating the evidence tendered before me, had the result that their evidence, to a significant extent, incorporated the other evidence.

Detective Superintendent Nicolson

1. Detective Superintendent Nicolson provides important general context in which to understand the opinions of Drs Davis and Dewson. Detective Superintendent Nicolson deposed that while IS had, by 2019, suffered significant military defeats, losing almost all of its territory in Syria and Iraq, the organisation has continued with its mission. Relevantly, IS and its supporters have continued to engage in, and promote, politically and religiously motivated violence, including through the use of the Internet. IS was relisted as a terrorist organisation under Division 102 of the Criminal Code in July 2023.
2. In giving his opinion, Detective Superintendent Nicolson relied on the report of Dr Dewson. I note that Detective Superintendent Nicolson's first (and primary) affidavit was prepared prior to Dr Davis's report becoming available. Insofar as Detective Superintendent Nicolson relied on Dr Dewson's assessment "that [the defendant] presents a low-moderate risk of engaging in violent extremist behaviour", for the reasons discussed below in the context of Dr Dewson's evidence, I put that to one side. Detective Superintendent Nicolson otherwise noted the risk factors identified by Dr Dewson, together with his own (not clearly identified) assessment of the defendant's "offending and attributes" based on his own policing experience and training. Detective Superintendent Nicolson noted the defendant's past internet-based contact (including social media contact) with violent extremists and the risk that he will, in the absence of an ESO, re-engage with extremist networks online. He regarded the risk as heightened by the defendant's correspondence with convicted terrorists offenders while in custody. Detective Superintendent Nicolson additionally pointed out that the defendant's past exposure to extremist material has provided him with some knowledge and skills regarding terrorist activities, including avoiding detection.
3. Detective Superintendent Nicolson noted the defendant's continued activities after his failed attempt to travel to Bangladesh. He further pointed to the potential that, after his release, he will assume a degree of notoriety and potentially have others seek him out to explore extremist ideology, potentially hampering his rehabilitation. In Detective Superintendent Nicolson's view, these risks are heightened by the failure of the defendant to engage in a deradicalisation program.

Dr Dewson

1. Dr Dewson's report was obtained pursuant to s 105A.18D of the Criminal Code, in contemplation of the application for an order. Dr Dewson was supplied with relevant material for the purposes of preparing her report. She spent approximately two and a half hours with the defendant. He was cooperative. Testing suggested he did not attempt to portray himself in an overly positive or negative light.
2. In her report, Dr Dewson under the heading "Risk Summary" said "taking into consideration the available information, I assess [the defendant] as posing a low-moderate risk of engaging in violent extremist behaviour". That risk assessment was potentially significant in the context of the potential harm that might result from its realisation, presumably informing the decision to bring the application. Subsequent to the oral evidence however, the plaintiff indicated that this part of the report was no longer relied upon.
3. The assessment of the defendant as "low- moderate risk" was derived from the application, by Dr Dewson, of the Violent Extremism Risk Assessment - Version 2 Revised (VERA-2R). The validity of this instrument was the subject of significant attention in the course of the hearing. There appears to be serious debate as to the usefulness of the VERA-2R. The Corner report, tendered by the defendant, casts doubt on its reliability. Dr Davis gave evidence that it is a predictive instrument that is not "any better than chance". Doubt attends the validity of the risk factors relied on by the instrument. Further, the test is designed to predict violent extremism offences, and is not limited to cases of recidivism. Some potential risk factors may be present in a case such as the defendant's simply on the basis of his past offence. This is not to suggest that factors relating to past offending are not relevant - they are. But it does point to the need for care when assessing the present situation.
4. It is not necessary for this Court to rule on the efficacy of the instrument. In the context of the controversy, Dr Dewson, in her supplementary report, acknowledged the difficulty of establishing a risk assessment tool for violent extremism that has "predictive validity", but noted that this, in her opinion, did not deny their usefulness. Ultimately, the plaintiff made clear that the VERA-2R was not relied on as a predictive instrument. While Dr Dewson's risk assessment referred to above was, consequently, not pressed, I accept that other aspects of her evidence remain relevant. That is based on Dr Dewson's evidence that she used the tool essentially as a non-exhaustive checklist for the purposes of identifying relevant factors to which she then applied her clinical judgment. Given that those factors are identified in her report, they are capable being evaluated and given appropriate weight in the exercise I must perform.
5. Dr Dewson's report details the defendant's background and offending behaviour. The defendant told Dr Dewson that he had been raised as a Sunni Muslim but had gone "off the rails" both religiously and behaviourally in his teens to early 20s. Other evidence was to the effect that the defendant suffered as a result of being a young Muslim at the time of the 2001 terror attacks, leading to his exposure to racism and bullying. His response to an apparent lack of acceptance appears to have resulted in fighting, drug use, and school suspensions. Dr Dewson documented that, in around 2008, the defendant was in encouraged to attend a gym where he came into contact with people with extremist views. The defendant told Dr Dewson that his radicalisation escalated during the Arab Spring in Egypt, the discourse "heightening the feelings of injustice that he already felt about the 'mistreatment of Aboriginals and other races in Australia' at the time". He explained to Dr Dewson his interest in the unfair treatment of religious groups in Bangladesh leading to his offences.
6. The defendant told Dr Dewson he no longer held extremist views. He said that while the deradicalisation process began when his passport was cancelled, the most significant influence on him was a prisoner he met in custody who had travelled overseas to fight for IS but had returned disaffected, explaining his reasons for that disaffection to the defendant. He said the change in ideology was also assisted by a Corrective Services chaplain and explained that he now views political events differently, citing concepts from the EQUIPS program undertaken in custody by which he evaluates things "logically" and "emotionally" to discover, what is described in EQUIPS as, the "wise mind". The defendant spoke to Dr Dewson about his future plans for a "nice relaxing life", putting his offending behind him, and "[starting] again".
7. Dr Dewson noted that the defendant has not engaged in a deradicalisation program, despite a number of opportunities to do so. As noted above, he did undertake psychological testing for the purposes of determining his suitability for such a program, but took issue with the contents of that report, referring to its author in derogatory terms in a letter to another inmate.
8. In relation to assessing the risk posed by the defendant, Dr Dewson noted caution was required as a result of a number of limitations. Particularly, Dr Dewson noted that the base rates for offences based on violent extremism are "distinctively low". She stated that, "although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such assessments is moderately valid only". Dr Dewson said that, consequently, "decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such datum". Dr Dewson noted the previous risk assessments, including those of Dr Seidler and Ms Cruickshank, which formed part of the evidence before me.
9. Dr Dewson assessed the defendant as having a low risk for general offending, setting out the factors considered in assessing that risk.
10. With respect to the risk of the commission of a "violent extremism" offence, which I take, consistent with the approach of the parties, to be broadly synonymous with a serious Part 5.3 offence, as noted above, Dr Dewson employed the VERA-2R. She stressed in her oral evidence that, absent the VERA-2R, she would have regarded the same matters as relevant.
11. Dr Dewson identified, as a risk factor, the defendant's previous ideology and long-standing grievances with respect to "injustices all around the world" and, in particular, beliefs with respect to the "perceived attack on Muslims and Islamic ideology". Dr Dewson noted that the defendant has, more recently, demonstrated "some grievances towards the Australian Government over his own treatment and has used dehumanizing language" when referring to the plaintiff and the psychologist in the context of the deradicalisation program assessment, as noted above.
12. Dr Dewson noted that, in addition to holding the beliefs referred to above, the defendant had had access to violent extremist material in the past. Additionally, the defendant had contact with other violent extremists at the time of his offending and "has demonstrated the capacity to develop a social network with like-minded people who support violent extremism". Dr Dewson also noted that the defendant's contact with violent extremists "continued in custody, through physical contact and written correspondence". Dr Dewson noted that the defendant "may be susceptible to influence from others, having indicated that aspects of his offence were related to his posturing and wanting to look worthy to his peers". Dr Dewson referred to the defendant's past exposure to online material and observed that "[g]iven his international connections and personal attributes, [he] is likely to have access to skills, funding and resources to commit a terrorist attack in the future, should he decide to".
13. Dr Dewson referred to what she described as "protective factors", most notable of which is the defendant's denunciation of his former violent extremist views, observing that he had been able to "verbalise the process through which he progressed" in challenging his former strongly held views. Dr Dewson additionally regarded the availability of support from the defendant's family as a protective factor but noted that "[d]eveloping greater community connections and a support network will be important aspects of [the defendant's] release plans". In her supplementary report, Dr Dewson noted that the defendant had disclosed "only a few community supports" to her and had reported feeling somewhat isolated, with the result that he did not presently have the benefit of "an intact support system".
14. In her supplementary report, Dr Dewson noted that, since his release, the defendant has sought out mentoring through an imam. She noted the importance of the defendant accessing mainstream versions of Islam in this context.
15. Dr Dewson, while disavowing use of the "low-moderate" label as an assessment of future risk, maintained her use of the term to indicate that the defendant had, in her opinion, a "low-moderate loading" on identified risk factors. Senior counsel for the plaintiff accepted that there is difficulty ascribing any significance to this aspect of Dr Dewson's opinion. I accept that what can be taken into account is Dr Dewson's identification of certain matters as risk factors and as protective factors, together with her discussion as to their relevance, as outlined above.

Dr Davis

1. Dr Davis, like Dr Dewson, was briefed with relevant background material. Dr Davis had the benefit of seeing the defendant after his release from custody and was able to engage in an interview with the defendant over approximately five hours.
2. Dr Davis set out the defendant's background and the circumstances surrounding his offending. He set out the defendant's account of the process by which his radical views changed, with the defendant giving essentially the same account as he had given to Dr Dewson. Additionally, the defendant told Dr Davis that his views had further progressed since giving evidence before Garling J, in that since having told his Honour that he would prefer to live in a country that imposed Sharia Law, he now felt he could be a devout Muslim while living in a western democracy.
3. Dr Davis noted that whilst the defendant had completed the CONNECT and the EQUIPS programs and had received "quite positive evaluations", he had declined the opportunity to participate in a deradicalisation program. In explaining his decision not to participate in the deradicalisation program to Dr Davis, the defendant again referred to the report of the psychologist who assessed him for this program but also referred to concerns that he understood had been voiced with respect to the capacity of the psychologists administering the program in the context of their reliance on statistics, in the absence of valid statistical information regarding terrorism offences.
4. Dr Davis noted the defendant's progress in custody. While the applicant had incurred a number of prison violations, the available information suggested he was generally reviewed positively by prison staff. The defendant provided explanations to Dr Davis for the more serious infractions. Dr Davis reported that, for the majority of his sentence, the defendant was kept in the HRMCC, otherwise known as "supermax", but progressed to the Macquarie Correctional Centre in September 2022. The defendant explained his contact with persons convicted of terrorism offences on the basis of his lack of opportunity for other social connection, given his incarceration with such offenders.
5. By the time of Dr Davis's assessment, the defendant had been in the community for close to one month. He said that his Enforcement Officer had told him he had "transitioned well". He reported finding the ISO challenging due to the stress associated with the risk of breaching the order. He spoke of the level of intrusion as a result of visits from the AFP, unintentional breaches, the process of seeking exemptions to conditions for otherwise lawful and productive activities, and restrictions on personal contacts. He said, in relation to the prospect of an ESO, based on his experience to date, it will "make life so hard".
6. He told Dr Davis that his social circle was restricted. The imam he had hoped would provide religious mentoring had, unfortunately, moved overseas. He reported that he sought out an imam in Wollongong whom he was seeing weekly. He said the imam was "conservative, but not extreme" and has "strict Islamic morals [but] nothing political". No suggestion was made that the imam with whom the defendant had engaged held any concerning views.
7. The defendant spoke to Dr Davis of his aspirations for the future. He expressed a desire to get married, have children, start his own business, and look after his parents.
8. Testing conducted by Dr Davis suggested the defendant was being "blunt and direct" in answer to questions on a test designed to measure deception, with the result that it was Dr Davis's opinion that "other self-report testing was likely to be honest and valid". Dr Davis, consistent with all the evidence, reported that there was no evidence of the presence of a major mental illness or personality disorder. Dr Davis did note that personality testing "did suggest some previous antisocial behaviours and difficulties with authority, as well as some impatience and moodiness, uncertainty about life goals, and a moderate degree of stress".
9. With respect to assessing future risk, Dr Davis noted that it is now "an unequivocal empirical fact that risk assessments made on the basis of 'traditional' unstructured clinical opinions have little relationship with subsequent recidivism". Dr Davis noted that, by comparison, (some) actuarial or structured risk assessment schemes have demonstrated predictive validity. Psychology, it might be noted, is far from the only field to have placed undue faith in unstructured judgment.
10. Significantly, when tested by Dr Davis for his risk in relation to all types of reoffending, the defendant was, on one test, formulated to identify traits of psychopathy (the Hare Psychopathy Checklist-Revised) in the "very low range", with a score "substantially lower than the average for North American offender populations" and "was even slightly lower than the average for non-offenders in the community". Dr Davis's assessment, based on a separate tool (the Level of Service/Risk, Need, Responsivity), was that the defendant "currently poses a low risk for general criminal recidivism (i.e., considerably lower than that of the average offender)".
11. While providing the above opinions with respect to the risk of general offending, Dr Davis reported that "[t]here is currently no validated way of assessing the risk of recidivism for Serious Part 5.3 offences". He explained that "[t]his is because the base-rate of recidivism for terrorism offences is far too low to enable such assessments to occur without an overwhelming number of false positives". While Dr Davis noted that the literature was somewhat scant, a 2019 paper examined recidivism rates of 561 terrorism-related offenders. [1] Over the course of the 17 year follow-up period, 5 reoffended while still in prison and, of the 247 who were released to the community, 4 reoffended. None of the offenders who were released to the community committed a further terrorism offence. By reference to this and other studies, Dr Davis suggested the recidivism rate for terrorism offences is somewhere between 1.6 and 2.9 percent. This rate of reoffending is substantially lower than the base rates of violent or sexual reoffending. Dr Davis demonstrated that, with such a low base rate of reoffending, even if one could develop a tool with a high level of predictive accuracy (indeed an artificially high level of accuracy of 75 percent), with a re-offending rate of 1.6 percent, less than 5 percent of the people assessed as being at a high risk of reoffending would actually do so. With a reoffending rate of 2.9 percent, this would rise to 8.3 percent. Conversely, while, as a result of the size of the group, the vast majority of persons predicted not to reoffend will not do so, nonetheless, a not insignificant number of offenders assessed as unlikely to reoffend, will reoffend. This was, as noted, in the context of an unattainable rate of predictive accuracy.
12. In the context of these difficulties, Dr Davis endorsed a view previously expressed in respect of female sex offenders, another area involving low rates of repeat offending of a similar kind. For offences of that kind, it has been said that positive identification of risk requires that the risk factors be "so blatant that they overcome the presumption of low risk … implied by the observed base rates". Dr Davis, while acknowledging some further limitations, endorsed this approach in the context of terrorist offenders.
13. Dr Davis additionally observed that, beyond the "seemingly insurmountable base rate problems", there are difficulties in identifying valid risk factors. He observed that "[i]n the absence of any validated approach to identifying risk factors for terrorism", a person-centred formulation approach is required. Such an approach must "focus on the individual and determine how their previous offending arose and determine if there is anything to suggest that the individual in question is likely to repeat the behaviour". Dr Davis opined that, in the case of the defendant, there was "nothing blatant that would suggest that [the defendant] is not one of the 97.1 to 98.4 percent of extremist offenders who do not re-offend".
14. While Dr Davis was clear that the VERA-2R was not a reliable tool for predicting the prospects of a future terrorism offence, he noted that Dr Dewson did not overemphasise the results of that testing. As became clear in Dr Dewson's evidence, she did not test risk factors in any sort of mechanical way but rather applied her clinical judgment to the particular factors, which were additionally treated as non-exhaustive. Dr Davis, acknowledging these matters, accepted that Dr Dewson's evidence was not necessarily undermined by her reference to the VERA-2R and that their opinions may not be too far apart. This remains difficult to assess.
15. Finally, I note that in the formation of his opinions, Dr Davis accepted the findings of the sentencing judge. While I am required to have regard to the views expressed by his Honour, I am not bound by them, noting particularly, as referred to above, the different context including as to proof of intermediate facts. While the point was made by the plaintiff that Dr Davis had taken an approach to the findings of the sentencing judge different to that which should be taken by me, it was not accompanied by any submission identifying any aspect of Dr Davis's opinion that was undermined as a result. Indeed, Dr Davis ultimately gave evidence on the prospect the defendant misled the sentencing judge. Nonetheless, I note a degree of caution should be applied on this basis when considering Dr Davis's opinions.

Determination

1. I am required to determine whether the defendant poses an unacceptable risk of committing a serious Part 5.3 offence in circumstances where the experts accept that there are significant problems in coming to any reliable view as to the prospect that the defendant will commit such an offence. The legislative task does not, however, allow me to throw my hands in the air and surrender. The plaintiff submitted that there are two bases on which I should find the defendant to be an unacceptable risk. The first is that his statements of having denounced his former ideology are false. The second is the possibility that, while having renounced his former ideology, the defendant is later re-radicalised and, consequently, minded to again commit a serious offence against Part 5.3 of the Criminal Code.
2. I accept it is at least possible that the defendant is lying as to his renunciation of his former beliefs. As the experts acknowledged, there is no objective way of confirming the defendant's assertions. There are, however, means by which his account can be scrutinised, with the result that I would not assess the prospect as more than a bare possibility. Both Drs Dewson and Davis made reference to the defendant's description of a challenging process of deradicalisation, which commenced with resistance, followed by questioning, leading to his views evolving over time. Dr Dewson distinguished this from a person that does not articulate the process by which their deeply held views changed. The plaintiff did not take issue with Dr Davis's assessment to the effect that "if he's not being honest he's being remarkably subtle about it".
3. At one stage, it was suggested to the experts that the defendant may have been "coached" by another more experienced prisoner to give a false account of his renunciation for the consumption of the sentencing judge. This was on the basis of a letter from the defendant to another prisoner thanking him for his assistance, which the defendant noted included writing letters to the Director of Public Prosecutions. That assistance would appear to have more relevance to a context involving lengthy charge negotiations, including during a time where the defendant was unrepresented (discussed by Garling J in R v Amin at [64]-75]), than to any coaching as to the evidence to be given on sentence.
4. Further to the above, any strategy involving a fabricated renunciation would appear to have involved, not just a consistency of account across numerous interviews, but a staged process involving the defendant having substantially deradicalised at the time of sentence, but, nonetheless, still embracing a desire to live under Sharia Law, to the current point where, according to Dr Davis, his views had further shifted. To Dr Davis he said that he feels he can lead the same life here as he would live in a country under Sharia Law, expressing the compatibility of his religion with life in a liberal democracy. The idea that the defendant may have "stage managed" his progress to achieve such a level of verisimilitude strikes me as unlikely. That would involve the defendant having given false evidence at the sentence hearing, while making that evidence less favourable (or at least likely to be perceived less favourably) than he could have. At the conclusion of the first day of the hearing, I suggested to senior counsel for the plaintiff that, in the event that the defendant was lying, he was "playing a very long game" with the result that the utility of a 12-month ESO might be doubted. This was put on the basis that, assuming the premise, the duration and sophistication of the past deception would suggest the defendant will have little difficulty in continuing the charade for a further 12 months. No submission was made addressing this concern. [2]
5. While I regard it as unlikely the defendant is lying about his deradicalisation, I accept the possibility is a matter to be factored into my assessment. I would also, to use the language engaged in at the hearing, accept that the defendant engaged in a degree of "impression management". This is to be expected. All of us engage in a degree of impression management. The advertising industry is dependent on it. Had the defendant not been motivated to do so at this juncture, one might wonder as to whether he was truly motivated to move forward with his life as he claims. Nonetheless, it is appropriate that I approach the matter, not cynically, but with this understanding.
6. The alternative possibility with the potential to lead to the commission of a relevant offence, is that the defendant will become re-radicalised at some time in future. Again, this must be acknowledged as a possibility and, arguably, one that is less fanciful than the prospect that the defendant has been untruthful as to his deradicalisation. While less obviously fanciful, the assessment of such a risk, based on the expert evidence, is nonetheless problematic. I would accept, as indicated by Dr Dewson, that the defendant's past conduct demonstrates a capacity to be swayed by negative influences to the point of embracing a destructive extremist ideology. These matters may be seen in the light of the aspects of the defendant's background which contributed to his radicalisation - that is, his experience of racism, exclusion, and perceived injustice, matters which remain a significant part of the defendant's life experience. As a practical matter, it would also appear he has overseas connections through which he could potentially further any intention to engage in terrorism. Not intending any disrespect, these matters are plain in the absence of expert opinion.
7. As noted above, the defendant was not arrested at the time of the offences. The plaintiff relies on the fact that, despite being stopped at the airport and coming to the attention of authorities, he continued in his extremist views and continued to access extremist material. In many cases, the intervention of an appropriate authority is a chastening experience for an offender, leading to a change in behaviour. A failure to do so will likely suggest a heightened risk of future offending. Clearly, the defendant did not respond in this fashion and, indeed, continued with his extremist views after his arrest. The present context is, however, somewhat different to the ordinary context. The defendant's crimes were motivated by deeply held beliefs. Most crimes are, by contrast, committed with an understanding they are wrong. A sudden change in the defendant's views would be surprising. As discussed above, a purported sudden change may attract doubts as to its veracity. The continuation of the defendant's activities provides no more than evidence of how deeply entrenched his views were at that time, in circumstances where there is no doubt about this fact.
8. The defendant has continued to express dissatisfaction and a sense of grievance with persons who might be regarded as representing mainstream authority. He has used derogatory and dehumanising language to describe the plaintiff, lawyers for the prosecution, and a psychologist engaged by Corrective Services. Whilst I accept Dr Dewson's identification of these matters as risk factors, it is difficult to see them as much more than consistent with the attitudes, vernacular, and the nature of discourse engaged in by a large proportion of the prison population, of whom persons who might wish to cause harm in furtherance of their political or religious beliefs are but a subset. Indeed, while using abusive language in a letter to another inmate describing his dissatisfaction with the psychologist, the defendant expressed an intention to "legally fuck her over", suggesting, despite the language, a respect for proper process.
9. It is the case that while the defendant has engaged in some programmes in custody, in particular the EQUIPS and CONNECT programmes, and appears to have benefited from them, he has not done any specific deradicalisation programmes. The significance of this fact is somewhat diminished by the expert evidence that there is no evidence that such programmes are effective. As Dr Davis described it, the defendant engaged in an informal deradicalisation programme. This was the result of the propitious encounter with the fellow inmate which led the defendant to challenge his previously entrenched views and modify them over time. Nonetheless, the defendant's refusal of the formal deradicalisation programmes is evidence that the defendant refused to engage in something that at least had the potential to assist him (even in the absence of positive evidence such programmes are effective). Additionally, and perhaps more significantly, there is evidence the defendant declined psychology services on the basis that, because his offence was based on religious views, he would seek counselling and guidance from imams. While the defendant's position is not illogical, it shows some lack of insight, Dr Dewson's evidence was that psychologists have a role in helping past offenders understand risk factors. There was, however, little exploration of what greater understanding the defendant required with respect to any relevant risk factors. This is unsurprising in circumstances where there is little evidence of what the risk factors for recidivism are. The defendant is, to employ Dr Davis's term, likely to be well aware of the of "blatant" risks.
10. There is no reason to doubt that engagement with psychological services would likely assist the defendant with his transition to the community, something noted by Dr Davis in his oral evidence. The connection between the strain of adjustment to life outside gaol and the risk of the commission of a serious Part 5.3 offence is, however, somewhat tenuous.
11. I also accept that the defendant has had contact with a significant number of persons who have been convicted of terrorism or terrorism related offences. This, of course, is a product of the persons to whom he was exposed at the HRMCC. Nonetheless, clearly, there is the potential for such persons to have negatively influenced him. There is, however, no evidence of any actual attempt to negatively influence him or that he was so influenced. The only evidence of any influence of such persons on the defendant's attitude to violent extremism is that contact with one such offender led to the defendant's deradicalisation. Further, to the extent that such persons may have had the potential for negative influence, the defendant has maintained his rejection of the deployment of violence for political or religious objectives. The defendant's contact with other terrorist offenders does suggest the formation of relationships which may, in the future, expose him to radical views. Of course, the very low recidivism rates discussed above apply not only to the defendant but also to other offenders found guilty of terrorist offences. The result is that it is difficult to place any real weight on the defendant's past willingness to associate with persons convicted of terrorism related offences.
12. Dr Davis's opinion was that while there are difficulties in reliably identifying risk factors, it is possible to examine the defendant's present circumstances and compare them with his circumstances at the time he committed the offences. Dr Davis referred to this as looking for "parallels" or asking if he is on the same pathway. In this regard, the defendant is, apart from anything, appreciably older. He has been in gaol. The overwhelming likelihood is he has changed his views. There is, in other words, little to suggest he is on the same pathway. To this must be added the low rates of recidivism amongst violent extremists generally.
13. Acknowledging the risk factors I have referred to above, it is difficult to articulate any risk posed by the defendant other than that it exists to some extent. Of course, whether such a risk is unacceptable must be assessed with regard to the potentially disastrous consequences of a serious offence against Part 5.3 of the Criminal Code.
14. In addition to the above matters, the potentially negative consequences of the imposition of an ESO on the defendant's risk must be considered. There is a legitimate concern, in a case such as the present, that the making of an ESO may contribute to a sense of injustice. Thus, particularly in a context where the defendant's strong feelings of injustice fuelled his radicalisation, the making of an order may be counterproductive. This prospect was acknowledged by both Dr Davis and Dr Dewson.
15. That a defendant may be unhappy with the making of an order is not a reason of itself to refuse to make the order. But, in the present case, it is also significant that any sense of injustice that might be engendered would be far from irrational. From the defendant's perspective, he has served the entirety of his sentence. He no longer holds extremist views (or at least, I accept that this is overwhelmingly likely). His behaviour in custody has generally been positive, despite the inevitable tensions expected to arise in the extremely restrictive circumstances in which he was held for the majority of his imprisonment. Despite this generally positive behaviour, he was denied parole. That determination was, no doubt, related to the statutory test for release to parole for offenders such as the defendant, which requires establishing exceptional circumstances. This explanation is, however, unlikely to provide a salve for the defendant given that parole has traditionally existed as a means to both promote rehabilitation and protect the community by supporting the transition of offenders from gaol to the community. The application for the ESO, to my mind, and likely to the defendant's, smacks of an attempt to curtail his liberty beyond his sentence in circumstances where a supported release by means of parole would have provided both assistance to the defendant and comfort to the plaintiff with respect to concerns raised by him on this application.
16. The denial of parole was also likely to have been affected by the fact that the defendant's progress through the prison classification system was slow, with him spending much of his sentence at the HRMCC. This was despite his repudiation of violent extremism and generally positive prison behaviour. That a person such as the defendant might feel some unfairness being denied a less restrictive environment in custody, contributing to a denial of parole, in turn contributing to a curtailment of his liberty beyond his sentence, is understandable. Potentially exacerbating the potential for the defendant to feel a sense of injustice on this basis is that, having been kept for a majority of his sentence in the HRMCC with other terrorism related offenders, the plaintiff raises as a concern the fact that he has formed associations with other terrorism offenders. As he said to Dr Davis "(I was) stuck in with them, who else are we going to talk to? The wall?". Indeed, Dr Dewson accepted that, had the defendant kept to himself and not formed relationships, he may potentially have been regarded as a greater risk of offending on the basis that he was a person who finds difficulty in forming personal connections. In other words, he was damned if he made connections and potentially, at least, damned if he did not.
17. Any potential sense of grievance is to be understood in the light of the significant imposition on the defendant's liberty posed by an ESO. The evidence is that while on the ISO, the defendant has been subject to a high level of scrutiny. I do not suggest this is inappropriate. Such orders are in place, after all, on the basis that (putting aside the process for an interim order) the person has been found to constitute an unacceptable risk of committing a very serious offence. No doubt, with compliance, the level of scrutiny will taper. Nonetheless, both supervision and potential frustration with the administration of the order will remain. As an example of the latter, while on the ISO, the defendant, by email, sought permission to attend a job interview and foreshadowed a need for a curfew exemption if he was successful. No response was received. This was, according to Detective Superintendent Nicolson, because the defendant "did not identify in his email any specific employment opportunity to which any exemption from the curfew requirement would apply". Detective Superintendent Nicolson acknowledged that, "ideally", the AFP should have responded if only to seek more information, and undertook to raise the matter with the relevant AFP officers dealing with the defendant. While arguable this is a relatively minor matter, it does serve to illustrate the defendant's concerns in dealing with the AFP.
18. Having regard to the discussion above, and Dr Davis's opinion that there is nothing in the defendant's case to suggest any heightened risk, the prospect that the defendant might harbour a sense of injustice should an order be made against him is real. Like the risks pointed to by the plaintiff, it is difficult to assess the prospect that any such grievance would contribute to the defendant's re-radicalisation and subsequent re-offending.
19. I must have regard to the object of the Division as stated in s 105A.1 of the Criminal Code, which is to "protect the community from serious Part 5.3 offences". I also accept the evidence of Dr Dewson that an ESO will assist in managing the defendant's risk. That, of course, is somewhat abstract. While some supervision might both assist the defendant and provide some comfort with respect to such risk as may exist, I must apply the statutory test. An ESO is not a readily available substitute for parole. I must be satisfied the risk is unacceptable. Ultimately, when regard is had to all the risk factors, both pointing towards and militating against the making of an order, I cannot be satisfied, even on the balance of probabilities, that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence.

Conclusion and Orders

1. The plaintiff's amended summons must be dismissed. I make the following orders: 1. The interim supervision order currently in force as a result of the orders made by me on 8 December 2023 is amended so as to expire on the delivery of this judgment. 2. The plaintiff's amended summons filed 20 October 2023 is dismissed. Addendum: After the judgment was delivered, the defendant sought costs. This was not opposed by the plaintiff. Accordingly, I make the following additional order: 1. The plaintiff is to pay the defendant's costs as agreed or assessed.

Endnotes

1. O Hodwitz, "The Terrorism Recidivism Study (TRS): Examining Recidivism Rates for Post-9/11 Offenders" (2019) 13(2) Perspectives on Terrorism 54
2. For reasons that are not apparent, only the first two sentences of my observations to counsel at the conclusion of the first day appear in the transcript. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023