Attorney-General v Temssah

Ms Bennett SC with Mr Minson and Ms O'Neil for the plaintiff.

1 On 15 September 2021, Khaled Temssah pleaded guilty to one charge of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity (the offence)[1] contrary to s 119.4(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Code). In summary, between 3 June 2019 and 20 June 2019, Mr Temssah prepared to travel to a province in the Kashmir region of India declared by Islamic State to be 'Wilayah Al-Hind' (translated from Arabic as 'Islamic State Province in India'), for the purpose of hostile activity.

2 The nature of the offence to which Mr Temssah pleaded guilty renders him a 'terrorist offender' within the meaning of Division 105A of the Code. He was sentenced to 4 years and 9 months' imprisonment.[2] Mr Temssah completed his sentence and was released from custody on 18 March 2024.

3 On 21 March 2024, three days after his release from prison, the Court made an order under s 105A.9A of the Code imposing on Mr Temssah an 'interim supervision order' (ISO) for a period of 28 days ending on 19 April 2024.[3] The order was made in this proceeding in which the Attorney-General for the Commonwealth also seeks that Mr Temssah be subject to an 'extended supervision order' (ESO) for two years. An ESO is a type of 'post-sentence order' the Court may make under s 105A.7A(1) of the Code. The Court may make an ISO in relation to a terrorist offender, where an application has been made to impose an ESO on them.

4 An ISO may be in force in relation to an offender for no more than 28 days.[4] However, the Court may make more than one ISO in relation to an offender, subject to the constraint specified in s 105A.9A(8) of the Code that the total period of all interim supervision orders made in relation to an offender before the Court makes a decision on an application for an ESO must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.

5 On 16 April 2024, the Court made a further ISO in relation to Mr Temssah which imposed conditions in the same terms as were imposed by the order made on 21 March 2024 (as varied with the agreement of the parties on 25 March 2024).[5] The order was expressed to operate until the earlier of 17 May 2024 or the determination of the Attorney-General's application for an ESO.

6 The hearing of the Attorney-General's application for an ESO, which was opposed by Mr Temssah, proceeded over four days concluding on 3 May 2024. The Attorney-General relied upon the following evidence:

(a) affidavits of Anthony Desmond Giugni, Senior Executive Lawyer at Australian Government Solicitor, affirmed 23 February 2024 and 8 March 2024;

(b) affidavits of Magda Ziadeh, interpreter and translator, sworn 14 February 2024 and 12 April 2024;

(c) affidavits of Inspector Sarah Carmichael, Unit Manager of the Countering Violent Extremism Unit at Victoria Police, sworn 26 February 2024, 8 March 2024 and 10 April 2024;

(d) affidavit of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division in the Commonwealth Attorney-General's Department, affirmed 26 February 2024;

(e) Expert Risk Assessment Report authored by Peta Lowe, social worker, dated 2 June 2021;

(f) psychological report authored by Guy Coffey, clinical psychologist, dated 6 June 2021;

(g) affidavits of Jennifer Ann Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 11 March 2024 and 3 May 2024;

(h) affidavits of Frank Dumic, Assistant Commissioner, Security and Intelligence Division at Corrections Victoria, sworn 11 March 2024 and 17 April 2024;

(i) affidavits of Nicholas Andrew Read, a Commander of the Australian Federal Police (AFP) in charge of Counter Terrorism South, sworn 26 February 2024, 12 April 2024 and 26 April 2024;

(j) affidavits of Dr Andrew Kenneth Ellis, consultant forensic psychiatrist, affirmed:

(i) 22 February 2024, exhibiting an expert report of his dated 3 December 2023 and two supplementary reports dated 25 January 2024 and 16 February 2024;

(ii) 12 April 2024, exhibiting a supplementary report dated 12 April 2024; and

(iii) 26 April 2024, exhibiting a supplementary report dated 26 April 2024; and

(k) an email to the defendant from Shane Edgerton of the AFP dated 18 April 2024.

(a) affidavits of Gemma Ross-McGlynn, solicitor at Robinson Gill Lawyers, affirmed 24 April 2024, 29 April 2024 and 1 May 2024;

(b) affidavits of Dr Michael Davis, consultant forensic clinical psychologist, affirmed:

(i) 22 April 2024, exhibiting an expert report of his dated 22 April 2024; and

(ii) 26 April 2024, exhibiting documents referred to in his expert report dated 22 April 2024;

(c) affidavit of Dr Adrian Gully, interpreter and translator, sworn 19 April 2024, exhibiting an expert report of his dated 19 April 2024; and

(d) affidavit of Jennifer Ann Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 2 May 2024.

8 On 13 June 2024, the Court ordered that Mr Temssah be subject to an ESO imposing the conditions and exemptions set out in Annexure A[6] for a period of 18 months. These are the Court's reasons for making that order.

9 Mr Temssah was 30 years old at the time of the offending in 2019. With his wife who he married in 2013, he has two children born in 2015 and 2017. He was, and remains, a devout practising Sunni Muslim.

10 Mr Temssah first developed an interest in extremist Islamic material in about December 2018. It would appear that he was first exposed to such material as a result of various charitable activities in which he was involved which were concerned with providing support to members of the Islamic community. Some of these activities were online, and Islamic State propaganda and related links began coming through his social media feed as his online charitable activities increased. Mr Temssah began viewing videos from many sources, including Islamic State, in relation to foreign conflicts. A later forensic investigation of Mr Temssah's mobile phone revealed more than 100 image files, video files and documents concerning extremist Islamic ideology and Islamic State propaganda, including violent and graphic imagery. The video imagery he consumed evoked in Mr Temssah a sense of grievance, as well as a strong sense of duty to assist the victims of wrongdoing.

11 Between January and April 2019, Mr Temssah made numerous Google searches in relation to jihad and Islamic State. On 29 April 2019, he accessed an online document which contained stories of jihad martyrdom and detailed instructions for Muslims from around the world on how to travel to Syria to join Islamic State.

12 On 3 June 2019, an online covert operative initiated contact with Mr Temssah via an online platform. Over the next few days, Mr Temssah disclosed to the operative his desire to 'make hijrah' to India, which translates to migration from the 'lands of disbelief' to 'the lands of Islam'. He also discussed travel plans with the operative and, on 7 June 2019, he purchased a ticket in his own name on an international flight from Melbourne to New Delhi for 28 June 2019, with a return flight booked for 10 July 2019. On 13 June 2019, Mr Temssah and the operative arranged for Mr Temssah to pay $880 to cover the costs associated with entering Kashmir and to purchase an AK-47 which he would collect upon arrival. The next day Mr Temssah attended a travel agency and paid $620 to book a hotel in New Delhi (in his own name), under the guise of going on a holiday.

13 On 15 June 2019, the online covert operative and Mr Temssah continued to speak about sending money to cover the cost of his entry into Kashmir and acquiring an AK-47. Mr Temssah was told to contact another person and was provided the person's phone number. That person was in fact an undercover police operative. On 17 June 2019, Mr Temssah and the undercover police operative made arrangements to meet. That evening, Mr Temssah and the undercover police operative met at a service station; Mr Temssah provided the operative with $880 in cash. He indicated to the operative that his family were unaware of his plans.

15 During his plea hearing on 10 June 2021, Mr Temssah renounced any support for Islamic State and their extremist ideology.

16 On 15 September 2021, the sentencing Judge made the following observations in relation to the nature and circumstances of the offence:[8]

The acts you engaged in were all functional in nature and not in and of themselves violent or threatening. However, in relation to the charges before the court, it is the intention behind inherently unremarkable acts that I must assess. Measured by that criteria, there is no doubt about the gravity of your intention.

The actions you took over those 17 days represented a persistent commitment to get to Kashmir and fight on the front line with the Mujahadeen. It is evident from the sentiments you consistently expressed to the OCO that it was your sincere wish to engage in hostile activity of the nature outlined in the Code, and to die as a martyr if necessary.

That you took steps to pay to ensure that you were armed with an AK-47 upon arrival in the Kashmir leaves no scope for doubt about the nature and gravity of your intentions. Based on all the available material, I reject your initial contention made in evidence that you simply wished to act as a guard, or that your motivations were purely humanitarian in nature. I note that your counsel did not seek to pursue that submission and that you ultimately did give evidence consistent with the allegations at the core of the charge.

Your intentions were motivated by an interest in and an adherence to an extremist religious ideology. You had accessed and stored a substantial amount of graphic and disturbing material, including material specifically referring to Islamic State. Whilst it is not suggested that you were a member of Islamic State, you did tell the online covert operative that you had already given a pledge of allegiance in your heart, and that if you had to kill some people, that this would be justified according to the Islamic State doctrine.

Your intentions and your preparatory actions to fulfil those intentions reveal that your commitment to these extremist beliefs was at the time, absolute. You were prepared to kill and to give your own life in adherence to an extremist philosophy. Your actions were not those of someone with just an interest in or a loose commitment to radical beliefs. You were prepared to deceive and then to leave your family to give your life for those beliefs.

The entirety of your conduct was engaged in whilst in direct contact with an undercover operative purporting to be an Islamic State sympathiser. At no stage in this matter was there any actual prospect that you could achieve your desired aims. That is to be regarded as the absence of a matter that would otherwise have been aggravating.

The fact you were engaging with an online covert operative has undoubtedly influenced the specific nature of the preparatory acts you engaged in. It is reasonable to conclude that the suggestions by the online covert operative has directed your conduct to the extent that the prospect of booking flights was first raised by him, not you. In a more general sense, had you not encountered the online covert operative and engaged with him over those 17 days it is unclear that at that time you would have taken any of the specific steps that are the subject of the charge.

When the entirety of your contact with the online covert operative is considered, however, the extent to which your offending is mitigated by any kind of entrapment is very limited indeed.

The online covert operative has not initiated or encouraged any interest you had in religious extremism or in the pursuit of hijrah that you did not already have. The online covert operative provided an outlet and a direction for your pre-existing and deeply held desires. He provided a means for which you could purchase an AK-47 but did not introduce a desire in you to possess and use one. You were not in any way exploited in order to foster intentions you did not otherwise have. You were not, as was the case in Taleb a vulnerable individual who was actively encouraged to do something you may not have otherwise contemplated.

You did not encourage any other person nor engage anyone else to participate in this conduct with you. I also note that the offending conduct is constrained to the 17 day period of the charge and that the period of your interest in extremist propaganda material goes back only as far as December 2018.

Your intention was not specific. Whilst your desire may have been strong, this was not reflected in well-established or realistic plans as to precisely how you were to achieve your goal to fight on the frontline. There was no clear and defined intention to commit any individually identified act of violence.

Overall, I accept the proposition that your offending is a low to middle range example of an inherently serious offence.

17 Later in his reasons, the sentencing Judge referred to the rapidity with which Mr Temssah appeared to have been radicalised:[9]

... Some caution must be expressed simply because you appear to have become radicalised within a relatively short time. From the time you first commenced to access extremist material online to the time you were seeking to arrange your departure from the country and separation from your family to potentially martyr yourself in a foreign war zone was a matter of months. The speed of your conversion to become a person prepared to give your life in service of a religious ideology is concerning.

18 Mr Temssah was sentenced to a total effective sentence of four years and nine months imprisonment, with a non-parole period of three years and nine months. He was in custody from 21 June 2019, until his release on 18 March 2024.[10]

19 Division 105A of the Code establishes a regime for the making of 'post-sentence orders' of which there are two types: a continuing detention order (CDO) and an ESO. Justice Hollingworth recently made the following important statement of principle in relation to the nature post-sentence orders:[11]

Post-sentence orders, such as CDOs and ESOs, are exceptional. As a general rule, our legal system punishes people by sentencing them for crimes they have committed. Its purpose is not to detain people to prevent a crime that they may or may not commit in the future. However, parliaments have introduced preventative detention regimes for certain types of very serious offenders, including terrorism offenders. Such regimes are the exception, not the norm. Courts have repeatedly said that the fundamental liberty of a person should not be constrained to any greater extent than is strictly warranted by the particular preventative detention legislation.

20 The object of Division 105A of the Code 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 CDO or an ESO.[12] Serious Part 5.3 offences are offences against Part 5.3 of the Code which carry a maximum penalty of 7 or more years imprisonment.[13]

21 Subdivision C of Division 105A deals with the making of post-sentence orders. Section 105A.5 provides that the 'AFP Minister', or their legal representative, may apply to a Supreme Court of a State or Territory for either a CDO or an ESO in relation to the offender. The Attorney-General is the AFP Minister for the purposes of Division 105A of the Code.[14]

22 The Court may determine an application for an ESO either by making an ESO under s 105A.7A, or by dismissing the application.[15] An ESO may be in force for no more than three years 'that the Court is satisfied is reasonably necessary to prevent the unacceptable risk'.[16]

23 Section 105A.7A(1) relevantly provides as follows:

(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:

(i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;

(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.

24 It was uncontroversial that the requirement in s 105A.7A(1)(a) was met in relation to the application for an ESO to be imposed on Mr Temssah.[17] The controversies for determination are therefore the substantive requirements identified in s 105A.7A(1)(b) and (c): whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, and whether the conditions sought to be imposed upon him are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk. The Attorney-General bears the onus of satisfying the Court of these requirements[18] which are considered separately below. They are to be determined in accordance with the rules of evidence and procedure for civil matters.[19]

25 Section 105A.7A(1)(b) requires that, in considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, the Court must have regard to the matters set out in s 105A.6B(1) of the Code. As is applicable to this proceeding, those matters are as follows:

(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) ...

(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) ...;

(i) any other information as to the risk of the offender committing a serious Part 5.3 offence.

26 Importantly, s 105A.6B(2) makes clear that the above provision does not prevent the Court from having regard to any other matter the Court considers relevant in deciding whether the Court is satisfied that an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[20]

27 In having regard to mandatory and other relevant matters, the evidence as a whole must be examined, rather than being considered in a piecemeal way.[21] It is the effect of the evidence as a whole which is important in determining whether an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[22]

28 The meaning and approach to be adopted in considering 'unacceptable risk' was considered by Hollingworth J in Minister for Home Affairs v Benbrika (First review) ('Minister for Home Affairs v Benbrika') as follows:[23]

In Nigro v Secretary to the Department of Justice ('Nigro'),[24] the Court of Appeal described the concept of unacceptable risk as a flexible one, which is calibrated to the nature and degree of the risk, so it can be adapted to the particular case.[25]

Whether a risk is unacceptable requires consideration of both the degree of likelihood of the risk eventuating, and the seriousness of the consequences if it does.[26] The risk of offending must carry a threat of harm to members of the community that is sufficiently serious as to make the risk of the commission of the offence unacceptable to the court.[27]

The Court of Appeal in Nigro stated:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is 'unacceptable'. That gravity will depend upon the offender's likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or sentences which are attracted by the relevant offence.[28]

In NSW v Naaman (No 2) ('Naaman'),[29] the NSW Court of Appeal said of relevantly similar legislation that, even if there is a slim probability of the offender committing a terrorist act, the risk may be unacceptable having regard to the consequences of such an act.[30]

Implicit in these observations, and in the statutory language directed at considering whether the risk of an offender committing a serious Part 5.3 offence is 'unacceptable', is a recognition, identified by the Court of Appeal in a different statutory context directed at the existence of 'unacceptable risk', [31] that the Code contemplates that some level of risk is acceptable in a democratic society which values the rights of an individual to freedom and privacy.[32]

29 Further, as explained by John Dixon J in Attorney-General v Hadashah Sa'Adat Khan ('Attorney-General v Khan'),[33] the concept of unacceptable risk of committing a serious Part 5.3 offence:[34]

... is a flexible concept calibrated to the nature and degree of the risk and adaptive to the circumstances of each particular case. The critical assessment is the combination of the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. The gravity of the consequences will ordinarily be the critical factor in the assessment.

The assessment of whether there is an unacceptable risk of committing a serious Part 5.3 offence therefore calls for a joint focus on both the degree of likelihood of offending, and the seriousness of the consequences if the risk eventuates.

30 In undertaking this task, it must also be steadily borne in mind that the relevant risk is the risk of a terrorist offender committing a 'serious Part 5.3 offence'. That offence is defined to mean an offence against Part 5.3, the maximum penalty for which is 7 or more years' imprisonment.[35] Various offences fall into this class and it includes preparatory offences, such as possessing things connected with terrorist acts,[36] and offences which do not involve the commission of actual acts of violence, for example, the provision of support to a terrorist organisation.[37] As was submitted on behalf of the Attorney-General, the fact that preparatory and non-violent conduct falls within the definition of a serious Part 5.3 offence, underscores that the unacceptable risk to the community which Division 105A is designed to prevent need not involve the actual commission of a terrorist act.

31 The object of Division 105A 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 CDO or an ESO. At a basic level, the object of protecting the community from serious Part 5.3 offences requires little elaboration when considering whether Mr Temssah poses an unacceptable risk of committing such an offence; the object informs in a general way what is meant by an 'unacceptable' risk.

32 Evidence as to the current threat of serious Part 5.3 offences to the Australian and international communities is also a relevant matter for the Court to have regard to when considering the statutory object as it provides the Court with a contemporary context in which to assess the risk associated with Mr Temssah. Evidence of this type was given by Commander Nicholas Read of the Australian Federal Police. Commander Read has had various roles with the AFP involving counterterrorism at different times over the last 20 years. From February 2023 he commenced in the position of Commander of Counter Terrorism Investigations,[38] in which role he was responsible for coordinating and administering the Joint Counter Terrorism Teams[39] and the AFP's Enduring Risk Investigation Teams, which operate across five States or Territories. Commander Read is well placed to give an informed and accurate assessment of the current general threat of serious Part 5.3 offences, including both the threat of terrorism inspired or encouraged by Islamic State, and the risk posed by individuals like Mr Temssah who have been prevented from travelling to foreign conflict zones. I generally accept his evidence in relation to these matters which was largely unchallenged.

33 The topics about which Commander Read gave detailed evidence included an overview of the activities of Islamic State and its current status in some 20 countries and regions; the methods by which terrorist activities have been carried out; and the threat of terrorism in Australia. Commander Read's evidence supports the findings set out below.

34 In November 2022, the 'National Terrorism Threat Level' prepared by the Australian Security Intelligence Organisation (ASIO) by reference to the security environment and intelligence was reduced from 'probable', which had been the identified the threat level since 2014, to 'possible', at which level it presently remains. This means that ASIO assesses that currently there is a 50/50 chance of a terrorist attack occurring in Australia. At present, the greatest risk of terrorism in Australia is religiously motivated violent extremism, including terrorism inspired or encouraged by Hamas, Hizballah, and/or as a result of the current Israel-Hamas conflict.

35 Islamic State has openly called for attacks against Australia and its interests and there have been terrorist attacks in Australia in which the perpetrators claimed to be inspired by Islamic State, or for which Islamic State claimed responsibility. Although Islamic State has become more fractured since the decline of the Caliphate[40] in 2019 with the consequence that the nature of the risk it presents has changed, its capacity to radicalise individuals into perpetrators of attacks at home (and to a lesser extent abroad) remains a very real threat. Islamic State and its supporters continue to:

(a) espouse and encourage politically and religiously motivated violence online, including through social media; and

(b) promote domestic terror attacks by lone offenders, including through the use of vehicles, knives and other methods that require little skill and no specialised equipment.

36 In considering the statutory object, these findings about the nature and level of the general risk of terrorism in Australia should be considered in the context of matters specific to Mr Temssah.

37 The starting point is to recognise and give weight to the fact that Mr Temssah has served a substantial term of imprisonment and that the recidivism rate for terrorism offences is extremely low.[41] I also accept that Mr Temssah's period of incarceration and, in particular, his consequential separation from his family, is likely to have furthered the sentencing object of deterring him from engaging in serious Part 5.3 offences. The evidence establishes that Mr Temssah has felt the burden of separation from his wife and young children, with whom he has remained in close contact while in prison, and that he is highly motivated to re-establish positive and meaningful relations with them now that he has been released from custody.

38 It is also clear that, at least for most of time in prison, Mr Temssah has genuinely engaged in rehabilitation. The question of rehabilitation is a matter of particular importance in this proceeding which I consider later in these reasons; it is sufficient for present purposes to acknowledge that there has been a substantial engagement by Mr Temssah with various rehabilitation programs which have positively influenced the process of deradicalisation which I am satisfied Mr Temssah has embarked upon.

39 Another feature of Mr Temssah's circumstances which I was urged to take into account in considering the statutory object in its application to him is his public renunciation of support for Islamic State. Mr Temssah gave evidence at his plea hearing on 10 June 2021, which the sentencing Judge accepted was genuine, in which he publicly renounced any support he had previously had for Islamic State, and their extremist ideology. It was submitted on behalf of Mr Temssah that the risk he poses is intrinsically lower because of his renunciation; as an apostate, the prospect that he would again be enlisted by Islamic State was said to be 'incredible'.

40 Evidence relevant to this issue was given by Dr Adrian Gully, an expert in Islamic studies, as well as being an interpreter and linguist. Dr Gully's evidence was that the pledging of allegiance to the 'Commander of the Faithful' is obligatory for every Muslim. A person who abandons or disassociates themselves from their pledge of allegiance is a 'murtadd', that is, an apostate. He referred to the work of Ibn Hajar, a Muslim scholar and polymath who died in 1449AD who wrote on the topic of apostasy and identified that the penalty for apostasy was death. Dr Gully's evidence was that that scholarship had been appropriated by Islamic State and that Mr Temssah's expression of renunciation would mean that Islamic State would regard him as an apostate. Based on a literal consideration of the religious texts and his understanding of the experiences of people under Islamic State who are considered to be apostates, Dr Gully considered that Mr Temssah's renunciation of his adherence to Islamic State placed him at risk of death. As he put it, it is:

... very dangerous for him and his family if he were to ever consider pledging his allegiance to Islamic State again, or showing any kind of support for the organisation. Islamic State's way of dealing with 'apostates' is uncompromising. The same would apply to any attempt to show allegiance to any associated terrorist organisation.

41 I am unconvinced by this analysis in light of two related limitations on Dr Gully's analysis which emerged from his evidence. First, in referring to the pledge of allegiance to the 'Commander of the Faithful', Dr Gully was referring to a general proposition rooted in the history of Islam which he has then 'extrapolated' to Islamic State. Secondly, Dr Gully acknowledged that there was no precedent as to the consequences for a person who renounced their allegiance to Islamic State; his opinion was based on a consideration of the relevant source materials and principles, not on any examples of the consequences which have occurred for those who have renounced their allegiance to Islamic State. This last point reveals that the ultimate conclusion reached by Dr Gully - that Mr Temssah's renunciation of Islamic State places him at risk of death - has an essentially speculative element. In the absence of some evidence which would ground Dr Gully's analysis in the reality of Islamic State's actions, it would be unsound for the Court to make assumptions about the position and actions which a now fractured extremist group and its followers are likely to adopt or pursue in relation to apostates.

42 Nevertheless, putting to one side this submission based on Mr Temssah's status as an apostate, his genuine and public renunciation of Islamic State and its extremist ideology is, in and of itself, a proper basis to moderate the statutory object in its application to him. In a sentencing context, a terrorist offender's genuine renunciation and denunciation of Islamic State philosophy and the holding of extremist beliefs is recognised as a significant mitigating circumstance which moderates to some extent the need for the community to be protected for the offender.[42] The public renunciation of Islamic State and an acceptance of criminal responsibility has been regarded by sentencing judges as a 'very significant step'.[43]

43 For the these reasons, when considering the statutory object in relation to the application for an ESO in respect of Mr Temssah, I consider that there are significant factors which moderate the general risk of terrorism in Australia as set out in Commander Read's evidence.

Assessment by relevant experts: s 105A.6B(1)(b)-(c)

44 As the Court of Appeal stated in Nigro in a different, but equally apposite,[44] statutory context:[45]

Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

45 The Court received evidence from two experts which will be considered in detail below: Dr Andrew Ellis, a consultant forensic psychiatrist who provided an assessment pursuant to s 105A.18D of the Code; and Dr Michael Davis, consultant forensic clinical psychologist, who was engaged on behalf of Mr Temssah's legal representatives to provide and assessment of him conducting a serious Part 5.3 offence.

46 Despite their different qualifications, Dr Ellis and Dr Davis are suitably qualified and experienced to give evidence in relation to the issue of unacceptable risk. Dr Ellis has had extensive experience across different areas of criminal forensic psychiatry. He is the Clinical Director and Medical Superintendent of The Forensic Hospital in Sydney and a Consulting Psychiatrist to the New South Wales Countering Violence Extremism Unit, State Protection Group, Police Negotiator Unit, and Fixated Threat Centre. As a forensic and clinical psychologist working in private practice, Dr Davis has published extensively on the topic of risk assessment, which was the subject matter of his doctoral thesis. He was involved in the development of several risk assessment tools, including those to measure the risk of terrorism offenders. He is an Instructor to the Behavioural Analysis Unit of the Federal Bureau of Investigation in the United States of America and is also a member of the of the Risk Management Working Group at BAU-1 (Counterterrorism) of the FBI.

47 Counsel for Mr Temssah also relied upon the following previous risk assessments undertaken in respect of Mr Temssah:

(a) an assessment in June 2021 by Peta Lowe, a social worker, in which she concluded that Mr Temssah was [redacted];

(b) an assessment in June 2021 by Guy Coffey, clinical psychologist, in which he stated that Mr Temssah was in a position which should preclude recidivism, although he had limited insight into his offending and the speed of his radicalisation suggested instability and capriciousness in his doctrinal views;

(c) a 'Level of Service Inventory Summary Report' prepared by Corrections Victoria in September 2021 which assessed Mr Temssah as [redacted]; and

(d) an assessment by Corrections Victoria Forensic Intervention Services in February 2022 that Mr Temssah was [redacted].

48 Although these assessments provide useful context in relation to the risk posed by Mr Temssah and demonstrate that his risk has consistently been assessed as being at a low level, their utility is necessarily limited by various considerations including their lack of contemporaneity and by with the present task to be undertaken by the Court.

49 The following summary of Dr Ellis' principal report dated 3 December 2023, prepared after he interviewed Mr Temssah on 4 November 2023, is taken from the ISO reasons:[46]

(a) Dr Ellis summarised Mr Temssah's self-reported current attitudes about various matters as follows:

He said that he considers himself a moderate Islamic person now, but in the past before and during the offence that he was radical. He said that he now believes that Islam must be considered in context, particularly in relation to history and the specific scholars that have contributed to the development of the religion. He said that he has learned a lot since his participation in programs in custody. He said that he can now debate the radical beliefs. He believes that he now has the tools to help radicalised youth change their ways.

He said that he is against all forms of violence including against the Australian and Indian States. He said that he is happy to live in Australia. He said that Muslims should co-exist with people in other countries. He said that [it] is important for people in democratic to countries to choose their leaders and have a right of protest. He gave historical examples from Islam that supported people living peaceably together in non-Islamic countries. He had no problems with people of different sexual expression or women's rights.

He said he had no animosity towards Hindus, Christians, Atheists or Jews. He said that no person should be harmed. He thought that radical Islamic groups such as ISIS and Hamas were wrong.

(b) Dr Ellis considered that Mr Temssah did not present with a diagnosable psychiatric disorder. However, he also stated that:

He still shows some exaggerated self-importance (thinking that he may be a suitable person to mentor extremist impacted youth, and in his description of his past work achievements). His overeating in response to stress without being able to articulate what that stress is indicates impulse and emotional control problems, which is now improving. The pattern of personality function tends to narcissistic (self-important advice giving, unrealistic ideals of romantic love and religious purpose and over confidence). It does appear that the core areas of personality function have been improving during his time in custody, potentially related to ordinary maturation or psycho-social interventions which have been implemented. Even though a diagnosis of personality disorder is not warranted this is not strictly material, the problems he displays are a matter of clinical concern regardless.

(c) Dr Ellis considered the risk of Mr Temssah committing acts of general personal violence and made the following points:

(i) There was a limited history of problems with violence such that there was 'a low loading of historical risk factors associated with violence in the longer term, lower than the general prison population of violent offenders or psychiatric patients'. Dr Ellis continued:

He shows reasonable insight into his potential for violence and what is required to moderate it. While this is not sophisticated, it is the intent around insight rather than detail that is important. He shows at this review a more realistic assessment of his motives and actions than earlier truncated accounts of only brief two month interest in extremism. He shows no evidence of current instability in his mental state with his emotional and impulsive responses moderated in the past 12 months. He engages with rehabilitation to address violence. There is no evidence he currently expresses attitudes supportive of violence. This indicates a low loading of modifiable clinical risk factors, which indicate potential for violence is currently well contained.

He did display a longstanding distrust of authority, noted in his early prison letters, and earlier occasional disengagement from psychology appointments. This appears improved, and his correctional reports of engagement are all positive. This would likely lead to cooperative [sic] with professional services and plans in the community.

(ii) Nevertheless, Mr Temssah's stress management remained of partial concern. Dr Ellis stated:

... He shows little ability to articulate what he might find stressful (such as witnessing media reports of harm to Muslim people, witnessing racism in the community, failing to live up to personal expectations of success or difficulty adjusting to the community). He has little personal articulation of how he might cope, but would be willing to seek professional support for managing stress. His personal supports appear to be positive, and have been assessed by supervising authorities. His proposed living circumstances would be with family and there is likely support with providing him employment through family connections. This factor would likely be satisfactorily addressed. He would likely benefit from continued interventions (psycho-social, and vocational placement) in managing future risk. This indicates that ongoing professional support would likely provide effective management of the latent and historical potential for violence.

(iii) Dr Ellis addressed the type of possible violent offence Mr Temssah might commit. Although Dr Ellis noted that Mr Temssah reported that he does not now hold 'ideologically based grievances', he also made the following observations:

His personality style is one that is easily influenced as his self-concept is fluctuant. Violence would likely take the form of aggression or protest if exhorted by others. This might rise to serious violence if he were to use a weapon. This may be of a type associated with a serious Part 5.3 offence, if he were to be influenced by others and adopted group grievances.

In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Temssah would fall into a group of persons with a risk for violent offending that is lower in frequency to most prisoners released from custody however with potential for serious consequence in his specific case owing to his preparedness to seek out a weapon when engaged with a person he believed held extremist views. This scenario would be specific to him associating with others (either in person or online), and being encouraged or facilitated by them. Specific supervision would likely reduce this risk.

(d) As to the risk of Mr Temssah engaging in acts of extremist-terrorist related violence, Dr Ellis referred to two tools used for the purpose of evaluating such risks: the 'Terrorist Radicalization Assessment Protocol' (TRAP-18) and VERA-2R. By reference to TRAP-18, Dr Ellis stated:

According to the TRAP scheme Mr Temssah has not directly communicated threats. He has historically reported personal grievance to the Western governmental and justice system in general, and cited past experiences where he feels Muslims have been treated unjustly. He shows fixation, identification and preoccupation on the topic of Islamic religion, but does not extend this to violent expression of the religion since conviction and participation in programs. The preoccupation has not limited his improvement in social and vocational function in the prison environment. He frames his life now by religious ideology, but also general pro-social views and does not endorse violence. ...

(e) Dr Ellis continued (apparently in relation to the indicia and considerations raised by TRAP-18):

He does not currently share the following features with persons who have completed terrorist attacks. There is no novel or recent violence. He has not had a sudden increase in energy, nor leaked to third parties an intent to cause an attack. He shows no last resort or time imperative to act on his previously expressed plan of Jihad and foreign incursion. He has had no sudden changes in his thinking and emotion, and has viable occupational goals. He has not shown creative or innovative tactical thinking. He has not shown recent research or planning to implement an attack. He has formed an intimate sexual relationship. He does not have an ongoing mental disorder. He has not previously engaged in other criminal activity. He does not identify with a warrior mentality.

(f) In relation to VERA-2R and CISP, Dr Ellis made the following observations:

According to the VERA-2R scheme in terms of belief, attitudes and ideology he voices a non-violent religious ideological goal that is personal only at present. He reports that his views are consistent with a mainstream Sheik in the employ of Corrections Victoria, [redacted]. While his religion remains important, he has other goals (employment and family) which are also important to him. He does not endorse violence at present. This stance is congruent with his communications and interactions with professional staff. He voiced antipathy to violent groups such as ISIS to me, and treating staff at CISP. He has held dismissive views about Australian justice agencies, previously seeing his arrest and treatment as unfair, however this has moderated over time with current positive regard for his supervisors. He reports no antipathy to democratic values. He accepts multiculturalism and voices no antipathy to a diverse society. He accepts the need for supervision given his offence type.

(g) Dr Ellis next addressed Mr Temssah's social context and intentions. He noted that Mr Temssah does not currently express a personal intention to act upon his prior grievances and no longer sees it as his role to solve international problems or to seek glory in that regard. He also noted that Mr Temssah's current contact with violent extremists relates to his placement in custody, and that there was no evidence that he is currently interacting with them about planning violence, and that their contact was partly cultural or friendship based, rather than based on ideology. Dr Ellis recorded that Mr Temssah indicated that he would not seek out extremists in the community. However, Dr Ellis also referred to Mr Temssah's 'unstable personality' as being 'potentially influenced'. He continued:

It is possible he could be easily swayed by charismatic or influential figures who present him with an exciting and seemingly purposeful and heroic mission. He would be more susceptible to this if he were not engaged with family, work, study and pro-social community activity, feeling marginalised and without meaning in his life. He has previously been proven to seek out group activity for terrorism at a time when he did not have professional support and supervision, but correspondingly did not report any major stress and was working and ostensibly in a good relationship. He has not expressed any formed plans for extremist action. While he had previously accepted death as a possibility of acting on extremist beliefs, he is more engaged with his family now and does not report this as a motive, being more worried that he thought this way in the past.

(h) Dr Ellis next addressed matters of 'commitment and motivation' and observed that Mr Temssah 'may engage in responsive actions if he is not able to manage stress or life dissatisfaction and channels this toward grievance about treatment of Muslim people'. Dr Ellis stated that Mr Temssah's capacity to act on this type of response in the nature of a Part 5.3 offence would depend on the involvement with, or influence of, others, including online.

(i) Dr Ellis summarised his views and reached the following conclusion as to Mr Temssah's risk of engaging in extremist related violence:

In considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence Mr Temssah has made a number of significant changes in his life to reduce the factors that were present when he committed the preparation offence. Some factors are historical, and therefore remain even if he makes changes (such as having been associated with a group, made plans, committed an offence). The progress with reducing the modifiable risk factors has been gradual and there remains uncertainty around some of them as they rely on his self-report (for example that he has given up any excitement about engaging in jihad and has adopted moderate Islamic beliefs). Some require evidence of consolidation in community settings (such as more sustained insight into his motivations and prior minimisation of his conduct). Some rely on him continuing clinical care and not relapsing to past patterns of behaviour (such as continued good stress management techniques and consistent adoption of critical thinking skills). Some rely on him not coming into contact with others in person or online who may influence him. Some rely on him adapting well to community life and the frustrations that may arise (economic or employment problems, problems with maintaining his relationship with his wife and children, having sustained meaningful interactions with his family). How he manages these potential stressors is yet to be tested, hence there is a level of uncertainty around establishing that these risk factors are in sustained remission and could remain that way without formal supervision and supports provided. On this basis there remains some risk factors that would benefit from clinical intervention, and some risk factors that are uncertain which would benefit from supervision to give greater confidence they were stably managed without intervention.

50 In the ISO reasons, I also addressed Dr Ellis' reports dated 25 January 2024 and 16 February 2024 in relation to Mr Temssah:[47]

Senior counsel for Mr Temssah also relied on the supplementary report prepared by Dr Ellis dated 25 January 2024 and his observation that Mr Temssah showed good communication and reasonable insight into his past offending which had improved from his time earlier in custody. Dr Ellis also stated that, because of limitations on the prediction of rare or low frequency events, he could not give a categorical assessment of whether the risk of Mr Temssah committing a non-violent serious Part 5.3 offence was higher or lower than the risk usually presented by a prisoner released from custody.

In his second supplementary report dated 16 February 2024, Dr Ellis stated that his opinion in relation to Mr Temssah as expressed in the abovementioned reports remained unchanged. However, he also made the following positive observations in relation to certain documents and information about which he was invited to comment:

The recent entries from Corrections Victoria indicate positive engagement with the CISP team. They indicate no recent behaviours of concern or institutional infractions. He has positive interactions with his wife and children observed. The notes indicate that while he has associated with others who have had similar convictions, this is not unexpected being housed in prison, and that these associations are not of concern to the prison authority. The notes indicate that his wife actively participates with the CISP team.

51 More recently, and after the ISO in respect of Mr Temssah was made, Dr Ellis prepared a further report dated 12 April 2024 in which he expressed the following opinions:

(a) As to whether Mr Temssah's compliance with the ISO is relevant to assessing his ongoing risk of committing a serious Part 5.3 offence, Dr Ellis stated that '[c]ompliance at this early point is not likely to be relevant to longer term risk, owing to the nature of this long term risk requiring sustained observed ...change to modify the level of concern'.

(b) Dr Ellis was asked to elaborate upon his previously expressed opinion that the risk posed by Mr Temssah should be managed over a period of two years. Describing this as his 'professional estimate', Dr Ellis continued:

There is little empirical guidance to make firm estimates of time of supervisions orders. In general, the highest risk time in the community for reoffending is the first two years. The main modifiable risk factor present is personality traits, which could be expected to improve within two years of psychotherapy. Other risk factors, such as stable employment, accommodation, attitudes and personal supports could be better assessed as stable and sustained after two years.

In Dr Ellis' view, if Mr Temssah was compliant for less than two years, there would be less certainty that risk factors had been mitigated in a sustained way, as compared to compliance having been demonstrated for two years. Likewise, therapy for a period of less than two years would be less likely to be effective in modifying long term personality characteristics.

(c) As to the range of critiques which existed about risk assessment, Dr Ellis considered that, although there was a healthy debate, the general consensus was that 'use of structured professional judgment, aided by clinical tools reduces error and assists with individual and group patient management'. Purely actuarial or statistical methods of risk assessment had a more narrow application in assisting with the prediction of behaviour in groups; they were now rarely used alone in risk assessment for an individual. Dr Ellis did not consider that risk assessment can predict individual events, or meaningfully translate group statistics to an individual case. Rather, risk assessment was useful in ' identifying relevant risk factors in order to put in place effective and targeted individualised risk management'.

(d) In relation to the previous risk assessments which had been undertaken, although the methodology employed by Ms Lowe was similar to that which he used in relation to Mr Temssah, Dr Ellis did not consider that a categorisation of Mr Temssah's risk as 'low' was 'scientifically justified or useful'. Dr Ellis described Mr Coffey's risk assessment as being less structured, the conclusion more definite and that the approach used had less support from the general literature.

(e) Dr Ellis made the important point that the purpose of the above earlier assessments were different to the current assessment, and that much less information was available to both authors. Nevertheless, he accepted that they provided background information and were part of the information which he considered in forming his opinion.

(f) Dr Ellis was asked to comment on certain recordings of telephone calls involving Mr Temssah, written letters and clinical notes which he was provided. The various written letters and clinical notes did not alter his previously expressed opinions. The telephone calls also did not alter his previous opinions, but he observed that they were consistent with the view that 'personality factors ... remain a concern, and that areas of uncertain risk (such as attitude to authority) require further monitoring'.

52 In his final report dated 26 April 2024, Dr Ellis explained that the report of Dr Adrian Gully with which he had been provided, did not alter his previously expressed opinions. Dr Ellis also responded to aspects of Dr Michael Davis' report dated 22 April 2024.

53 Dr Michael Davis prepared a report in respect of Mr Temssah dated 22 April 2024 following an interview and psychological testing session he conducted with Mr Temssah for over 380 minutes on 11 April 2024.[48] The substance of Dr Davis' opinions in respect of the issue of unacceptable risk is summarised below.

54 In the first part of his report, Dr Davis detailed background information relating to Mr Temssah from the information provided to him as well as that provided by Mr Temssah in their interviews, including in relation to CISP. Dr Davis recorded that it appeared that Mr Temssah 'was radicalised very quickly, and became at least somewhat de-radicalised rather quickly as well'. Mr Temssah described CISP as 'life changing' and that his mentor was very important to him. Dr Davis observed that the narrative articulated by Mr Temssah indicated that he had gone from having a 'very black-and-white view of the world to one with shades of grey'. However, Dr Davis also noted that the materials he had been provided suggested that Mr Temssah continued to 'have some at least concerning views inspired by his Islamic beliefs, particularly during 2021'. [redacted]

55 Dr Davis administered three psychological tests to Mr Temssah.

(a) The 'Paulhus Deception Scales' measures the tendency of a person to give socially desirable responses. Dr Davis reported that Mr Temssah's results indicated neither a deliberate attempt to manage the impression of him formed by Dr Davis, nor a 'non-effortful positive distortion in the form of self-deception', were particularly prominent. There was, however, a slight degree of effortful positive distortion. Dr Davis considered that some degree of impression management was not unexpected in the circumstances and that the magnitude identified in relation to Mr Temssah was not particularly elevated.

(b) The 'Personality Assessment Inventory' (PAI) measures personality function and the presence of psychiatric symptoms. The results of the PAI in relation to Mr Temssah 'revealed no elevations that would indicate the presence of a major mental illness or a personality disorder' and that his clinical profile was entirely within normal limits. Dr Davis concluded that the results of the PAI test:

... were not indicative of a major mental illness or a personality disorder. They did suggest some mildly maladaptive personality features, feelings of personal failure, feeling persecuted by others, and historical antisocial behaviour.

(c) The 'Personality Inventory for DSM-5 Faceted Brief Form' assesses maladaptive personality features. In relation to Mr Temssah, the results of the test were largely consistent with the PAI test and revealed no indications of a diagnosable personality disorder and no indications of any maladaptive personality features. Even allowing for a likely degree of positive distortion, the results suggested that any possible maladaptive personality features 'would be far from the magnitude of a diagnosable personality disorder'.

56 Informed by the results of these tests, as well as background information and a mental status examination of Mr Temssah, Dr Davis concluded that:

... testing was not indicative of a major mental illness or a personality disorder; although testing did suggest some mildly maladaptive personality features, a sense of personal failure, feeling persecuted by others, and historical antisocial behaviour.

It is my opinion that Mr Temssah does not meet formal criteria for a major mental illness or a personality disorder.

57 Dr Davis elaborated on Mr Temssah's maladaptive personality features, noting that Mr Temssah:

... struggled to some degree with a coherent sense of identity, at least in the past, and presents with some mild narcissistic personality features (i.e. some grandiosity and haughtiness). At a wider level, personality features of emotional lability, anxiousness, suspiciousness, grandiosity, impulsivity, and risk-taking have been aspects of Mr Temssah's presentation to varying degrees over the years. It is my opinion that his personality functioning is currently at a slight or mild level of impairment.

58 Before considering the risk of Mr Temssah committing a serious Part 5.3 offence, Dr Davis assessed Mr Temssah's general risk of offending. He stated that it is now clear that 'traditional' unstructured clinical opinions have little relationship with subsequent recidivism and that instead actuarial or structured risk assessment schemes are useful for identifying risk factors and indicating the category risk for general reoffending in which an individual falls. Noting that there were no validated instruments or approaches for the assessment of extremism offending, Dr Davis applied two assessment tools relative to assessing Mr Temssah's risk for offending.

(a) The 'Hare Psychopathy Checklist-Revised', being a standardised ratings scale which identifies traits of psychopathy and which has been reliably associated with general, violent and sexual recidivism and is considered to be an important consideration in the assessment of risk. Mr Temssah scored in the very low range, indicating that he was not psychopathic and did not possess personality features associated with offending of a particularly callous or predatory nature.

(b) The 'Level of Service/Risk, Need, Responsivity' scale which is used to identify predictors of general criminal conduct across eight domains. Mr Temssah's score on this scale was in the upper end of the low range, indicating that he had very few risk factors associated with general criminal conduct. On that basis, Dr Davis expressed the view that Mr Temssah was currently a low risk for general criminal recidivism.

59 Dr Davis commenced his consideration of the risk of Mr Temssah committing a serious Part 5.3 offence by outlining the difficulties inherent in assessing risk in relation to terrorism and extremism. He explained that there is no validated way of assessing the risk of recidivism for serious Part 5.3 offences because the 'base rate' of recidivism for terrorism offences is too low to enable such assessments to occur without an overwhelming number of false positives. Further, none of the extant risk of threat assessment tools had been validated in relation to their predictive validity. Dr Davis described the state of scholarship in relation to the risk factors for terrorism offences as being 'embryonic'.

60 Dr Davis surveyed the scant scholarly literature in relation to recidivism rates for terrorism which demonstrated that the recidivism rate for extremist offending was in the range 1.6 - 2.9%. This was very low by absolute standards, and substantially lower than the base rate for violence or sexual offending, rendering the making of risk assessments 'exceedingly difficult' because, even if a risk assessment instrument could be developed, it would not be able to identify recidivists without also including an overwhelming number of false positives.

61 Dr Davis identified that the very low base rate of recidivism for terrorist offenders was analogous to that for female sexual offenders, in relation to which the recidivism rate was approximately 1.34%. He referred to the leading academic in that field as suggesting that:

If the evaluation question specifically concerns the risk for sexual recidivism ... then the risk factors must be so blatant that they overcome the presumption of low risk for sexual recidivism implied by the observed base rates.[49]

Dr Davis considered that this approach may be a useful way of envisaging the risk for terrorism offending.

62 Dr Davis advanced a sustained critique of the use of VERA-2R in assessing risk for extremism recidivism. Dr Davis identified a series of 'insurmountable problems' with the use of VERA-2R which meant that its results could only be viewed as 'thoroughly misleading'. In addition to the underlying difficulty associated with the very low base rate of recidivism for terrorism offenders, he stated that VERA-2R had no published validation and no demonstrated predictive validity for any form of offending. He also referred to recent research which in fact showed that VERA-2R had poor predictive validity in relation to violent extremism.[50] Dr Davis stated that this research indicated that VERA-2R does not have an empirical relationship with violent extremism, even when the experimental design is manipulated to include a considerably higher base rate. Given this raft of difficulties, VERA-2R should be viewed, at best, as a 'series of tentative hypotheses awaiting further research'. He rejected the validity of its use for the purposes of assessing the risk of long-term recidivism. He went further and was critical of those who acknowledged that it is not a predictive tool, but who maintained that it provided a structured professional judgment framework for assessing risk factors. 'Choosing to use a risk assessment instrument that has been shown to have no predictive validity means that any opinions based on that instrument have no foundation whatsoever for answering questions related to long-term risk'. He considered the use of VERA-2R even as a framework to commence a risk assessment a 'perversion' of the structured professional judgment model.

63 Given the very low base rate of recidivism for terrorism and extremist offending and the absence of any validated risk assessment tool for assessing the risk of such offending, Dr Davis posited as appropriate the adoption of a similar approach to assessing the risk associated with reoffending by female sexual offenders. In that category, as noted above, given the low base rate of recidivism, the task for assessing risk is to consider 'if there is anything blatant to suggest that this individual is not one of the 97.1 to 98.4 percent of extremist offenders who do not reoffend'. Dr Davis considered that this 'straightforward' approach should be applied by adopting what he described as a 'more person-centred formulation approach', being one of the components of modern risk assessment based upon structured professional judgment. That approach focusses on the individual concerned and a determination of how their previous offending arose, and a consideration of whether there was anything to suggest that the individual was likely to repeat the behaviour.

64 Applying this approach (which I will refer to as 'Dr Davis' analysis') to Mr Temssah, in Dr Davis' opinion, there was nothing blatant to suggest that he was not one of the 97.1%-98.4% of extremist offenders who do not reoffend. In giving effect to a 'person-centred formulated approach', Dr Davis continued:

In addition, if one compares [Mr Temssah's] current circumstances with those at the time of his previous extremism offending, Mr Temssah is still clearly very devout in his Islamic faith. However, at the time of his previous offending, he was documented as having little foundational knowledge of Islam and was heavily influenced by radical and extremist Islamic lectures on-line. [redacted] ...[Mr Temssah]... no longer views Islamic rules in the strict dichotomous ways that he did in the past, is very open to asking for advice from his Sheikh mentor, and views many rules and teachings as being products of their time that have been abrogated by other knowledge. Furthermore, Mr Temssah is openly and vocally negative about ISIS and the radical speakers he previously followed. ... Moreover, while it is very soon after his release from prison, Mr Temssah is not currently living a life where he is focused on assisting other Muslims and neglecting his own wife and family. Indeed, there would appear to have arguably been some degree of personality maturation, including a more integrated sense of self, in recent years.

Having regard to these 'basic' considerations, Dr Davis considered that there was nothing blatant to suggest that Mr Temssah was not one of the 97.1%-98.4% of extremist offenders who do not reoffend.

65 In his report, Dr Davis also responded to specific questions posed by Mr Temssah's solicitors. In his responses, Dr Davis restated many of his opinions and analyses outlined above, but the following additional observations may be noted:

(a) Dr Davis summarised Mr Temssah's progression to his offending as follows:

... it would appear that Mr Temssah had a less than coherent and integrated sense of self and was searching for some further meaning in his life when he became radicalised. He embraced Islam with his wife and found some meaning in charitable works. However, he began to neglect his wife and family and was unsatisfied with the answers to religious questions that he received at mosque. With very little true understanding of his own religion, Mr Temssah found himself quickly enamoured with the simplistic black-and-white interpretations of Islam provided by extremists on-line. His narrative indicated that he became focused on a particular reward for martyrdom, whereby family members that found themselves in hellfire could be taken to paradise.

(b) As to the nature of any likely future behaviour by Mr Temssah in relation to serious Part 5.3 offences, Dr Davis considered that, in the unlikely event that Mr Temssah reoffended, his previous episode of offending meant that a repeat scenario was most likely. Should future offending occur, it would be in the context of Mr Temssah becoming entrenched in extremist Islamic beliefs and a desire to travel overseas to fight and assist Muslims.

(c) In relation to the mild or slight degree of impairment which Dr Davis identified in Mr Temssah's personality functioning, he observed that it can be problematic to overstate the importance of mildly maladaptive personality features when explaining serious criminal behaviour. In particular, he noted that Mr Temssah's impulsivity and risk taking had not been all encompassing. Further, although he noted that personality features 'do not change very rapidly', Dr Davis considered [redacted] was associated with some degree of personal maturation and having a more coherent sense of self as he had embraced a more mainstream and less 'black and white' approach to Islam. As Dr Davis stated:

While Mr Temssah's impoverished sense of self and identity fuelled his search for meaning that ultimately led to embracing extremist Islam, it is not necessarily the case that this will happen again, especially given the changes in his sense of self and his understanding of Islam in recent years.

When asked whether any of Mr Temssah's personality traits remain of clinical concern, Dr Davis stated that Mr Temssah will remain prone to some degree of emotional instability, anxiety and suspiciousness, particularly during times of stress.

66 Dr Ellis and Dr Davis gave evidence to the Court concurrently. Their professionalism and the commendably cooperative manner in which senior counsel elicited their evidence has, for the reasons I will explain, significantly assisted the Court in assessing whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence. However, a number of important issues arise in respect of their respective reports which it is necessary to examine in further detail.

67 On 5 June 2024, Hollingworth J delivered judgment in Benbrika v A-G[51] in which, amongst other things, her Honour considered the reliability and utility of the VERA-2R tool. Given that VERA-2R was employed by Dr Ellis in preparing his principal report in this proceeding, which in turn was the subject of a substantial critique by Dr Davis, the parties were invited to file short submissions addressing relevant aspects of Hollingworth J's judgment. I have considered the parties' submissions in assessing and evaluating Dr Ellis' evidence which I address in the following paragraphs.[52]

68 In Benbrika v A-G, the 'relevant expert' called by the Attorney-General in an application for the making of an ESO produced a report based on a 'structured professional judgment' approach in which VERA-2R was utilised. On the basis of the Corner report [53] (on which Dr Davis relied in his evidence in this proceeding) and four other expert reports, Hollingworth J concluded that it was 'clear' 'that there are serious problems in using VERA-2R to assess a person's risk of violent terrorist offending'.[54] Her Honour noted that VERA-2R 'openly acknowledges that it does not have predictive validity'[55] and that it is 'extremely poor at predicting outcomes, in discriminating between those who will go on to commit an offence, and those who will not'.[56] This was of 'considerable concern, because it is a fundamental part of the court's task to assess the risk that Mr Benbrika will commit a relevant terrorist offence in the future'.[57]

69 Although Hollingworth J accepted that, even without having predictive validity, VERA-2R may still have some utility from a 'policy perspective',[58] 'such considerations do not guarantee the correctness of the tool's output, and are irrelevant to the court's risk assessment task under s 105A.7A of the Code'; 'if the tool being applied consistently is bad, then the results will be consistently bad'.[59]

70 The expert called by the Attorney-General in Benbrika v A-G who had utilised VERA-2R in their report 'agreed with many of the criticisms in the Corner report' and 'tried to distance herself to some extent from the problems, by minimising the significance of VERA-2R to her assessment, and stressing the "professional judgment" part of her opinion'.[60] Hollingworth J rejected this approach stating:[61]

When a practitioner uses the VERA-2R tool, they turn their mind to each of the 34 core factors and 11 additional risk indicators in the VERA-2R checklist, forming a view about how they apply, and then using those factors and any other relevant information to form a final judgment about risk. A checklist of factors in an SPJ [structured professional judgment] tool tells the practitioner to think about particular things. An empirically-sound SPJ tool should direct the practitioner to think about the things that are most relevant to risk, and not direct them to think about things that are not relevant to risk. The Corner report noted that assessors who used VERA-2R only found 9 out of the 45 indicators to be frequently useful. Further, the Corner report found that VERA-2R covered less than 15% of the variables found in the empirical evidence to be statistically associated with movements towards radicalisation and violent extremism.

71 It is apparent that Hollingworth J has in substance vindicated the fulsome critique of VERA-2R advanced by Dr Davis in this proceeding. However, as her Honour noted, it is not the task of the Court to undertake an abstract consideration of the relative strengths and weaknesses of the different possible risk assessment approaches and to decide which should be preferred in the case of violent extremists.[62] Rather, insofar as it may be necessary, the task is to evaluate the experts' evidence to resolve any differences between them and to determine the weight to be given to their respective opinions. Nevertheless, Dr Ellis' reliance on VERA-2R and Hollingworth J's strong criticisms of the tool in Benbrika v A-G means that that task in relation to Dr Ellis' evidence calls for a careful examination of the manner in which VERA-2R informed his conclusions on risk_._

72 VERA-2R was one of two tools used by Dr Ellis to assess the risk of Mr Temssah engaging in acts of extremist-terrorist related violence. Dr Ellis readily acknowledged that tools such as VERA-2R cannot predict individual events, or meaningfully translate group statistics to an individual case. Although he generally considered the factors identified in VERA-2R in preparing his reports, he did not use it to determine his opinions, or to categorise or numericise the issue of risk. His evidence was, and I accept, that he was careful not to let the tools override his decisions. Dr Ellis' evidence indicates that he was well aware of the various critiques of risk assessment tools including VERA-2R.

73 Dr Ellis described VERA-2R as 'an investigative template' which was useful in identifying relevant risk factors for an individual; it was not a 'group level predictive tool as the outcome of interest is too rare to prognosticate'. This informed the 'clinical approach' he undertook in preparing his reports, 'founded on clinical experience' and 'general principles of risk assessment'. This can be contrasted with the relevant expert in Benbrika v A-G who used VERA-2R as part of a 'structured professional judgment' as to Mr Benbrika's risk. Justice Hollingworth's rejection of the relevant expert's emphasis on the 'professional judgment' aspect of her opinion (to minimise the significance of VERA-2R in her assessment) was expressed to be in connection with the use of VERA-2R as an 'empirically-sound [structured professional judgment] tool'.[63] Dr Ellis did not use VERA-2R in this way.

74 The fact that Dr Ellis did not use VERA-2R impermissibly to numericise and categorise risk, together with the important differences in the manner in which he used the tool as compared to the manner in which it was utilised in Benbrika v A-G, means that it would be erroneous to disregard or diminish the weight of his evidence merely because it has been informed in part by his consideration of factors to which it refers. To do so would be to ignore the considered professional judgment which he has applied to the assessment of risk. Significantly, notwithstanding his critique of VERA-2R, this is entirely consistent with Dr Davis' evidence who stated that:

Dr Ellis' nuanced opinion comes down to how good he is as a clinician ... and ... is an admirable opinion in spite of the fact that he's used a tool that's inappropriate.

75 I agree with Dr Davis' candid reference to Dr Ellis' 'nuanced opinion'. Overall, Dr Ellis' evidence was a carefully calibrated assessment of risk applied dispassionately to Mr Temssah by reference to a broad range of relevant information sources, including an interview with Mr Temssah. I take into account the fact that the interview occurred some four months before Mr Temssah's release from custody, but do not consider that to be a consideration of any particular significance.

76 I was also generally impressed with the expert evidence given by Dr Davis. However, I was not convinced by Dr Davis' analysis[64] for two reasons. First, as Dr Ellis explained in his evidence, Dr Davis' focus on the 97.1%-98.4% of extremist offenders who do not reoffend is apt to mislead because the risk of offending, with which the Court is presently concerned, is not the same numerically as the number of persons in a group who do subsequently commit a serious Part 5.3 offence. The Court's task is to assess the former rather than the latter, and it can reasonably be expected that there will be some individuals who will be at risk of offending, even if they do not do so. Secondly, the next stage of Dr Davis' analysis which involves asking whether there was anything 'blatant' to suggest that Mr Temssah was not one of the 97.1%-98.4% of extremist offenders who do not reoffend, appeared to me to be an improvised step drawn from a different group of offenders[65] which was then applied to extremist offenders without any sufficient basis in the research and scholarship dealing with extremist offenders.

77 For these reasons, insofar as they diverged in their opinions, I have preferred the evidence of Dr Ellis to the evidence of Dr Davis. However, as is apparent from the summaries of their evidence, Dr Ellis and Dr Davis were in substantial agreement about many matters. This reflects their professionalism and the fact that the different methodologies which they used were in substance variations on what was variously described as an 'individual case formulation' or 'person-centred' approach to the assessment of risk. They were wholly or substantially in agreement about the following propositions which are of assistance in assessing the risk posed by Mr Temssah:

(a) It was common-ground that, although the behavioural manifestations of personality may fluctuate and change over time, underlying personality characteristics tend to be enduring. Depending upon context, they also generally improve over time, albeit slowly.

(b) Although Mr Temssah does not have any diagnosable personality disorder, he does have some maladaptive personality features including: a poor sense of identity; emotional lability; anxiousness; suspiciousness; grandiosity; impulsivity and tendency for risk taking; and some narcissistic personality features.

(c) A sense of self is a core feature of personality. It was agreed that Mr Temssah's unstable or fragmented sense of self played a role in his offending. His susceptibility to the influence of others was a particular vulnerability and an aspect of his personality which played a significant role at the time of his offending.

(d) However, it was also agreed that Mr Temssah's personality characteristics have improved over his time in custody as a result of his maturation, self-reflection and self-improvement, and as a result of clinical interventions, in particular his engagement with CISP. Mr Temssah has now adopted more moderate Islamic beliefs and does not presently have any wish to engage in jihad.

(e) Although based on a relatively short period of only six weeks, Mr Temssah had demonstrated behavioural stability since his release from custody. His strong personal connections and support with family is an important protective factor in terms of the risk he poses to the community.

(f) As already noted, it was agreed that numerical or categorical assessment is not possible in assessing the risk of serious Part 5.3 offences.

(g) It is however clear that the available information and research indicates that the recidivism rate for extremist offending is extremely low: according to Dr Davis, the recidivism rate was in the range 1.6%-2.9% ('vanishingly low' as he described it). Dr Ellis described the recidivism for such offences as 'rare'.[66]

78 In considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, the Court is required to have regard to any report relating to the extent to which Mr Temssah can reasonably and practicably be managed in the community.

79 The principal evidence upon which the Attorney-General relied in relation to this consideration was that given by Commander Read. His evidence was that, if Mr Temssah was released into the community without an ESO, it would be difficult to monitor him because of the covert nature of his offending, the fact that he was radicalised over a relatively short period of time and because of his notoriety following his arrest and incarceration. As to the last point, Commander Read expressed the view that Mr Temssah's notoriety could be expected to make him more likely to be targeted by other extremists and it would also make it easier for him to influence others.

80 Commander Read gave evidence that, if Mr Temssah was unable to be monitored, police would have no oversight over critical matters including: whether he was exhibiting matters relating to his interpersonal function, emotional regulation, impulse control or self-identity; whether he was associating with violent extremists and/or sympathisers; whether he was engaged with others who may be vulnerable to extremist views; whether he was supporting or assisting others to engage in violent acts; or whether he is being led to carry out a lone attack.

81 Counsel for Mr Temssah criticised this evidence on several grounds. First, it was submitted that the concerns in relation to the covert nature of Mr Temssah's offending were misplaced given that Mr Temssah's conduct was not so covert so as to avoid detection. That submission may readily be disregarded as merely highlighting the ineffectiveness of what nonetheless remained covert acts by Mr Temssah.

82 Secondly, it was submitted that the claimed inability to monitor Mr Temssah and associated difficulties absent an ISO were inconsistent with the fact, established on the evidence, that Mr Temssah had been the subject of covert physical and electronic surveillance since his release from prison, including the four days when he was not subject to an ISO. There is, I consider, some force in this submission. The surveillance undertaken of Mr Temssah, even before an ISO was made, highlights the risk of wrongly assuming that the making of an ESO is the only means by which the activities in the community of a terrorist offender may be monitored. To that extent, it may be said that the Attorney-General's case based on Commissioner Read's evidence involves an overstatement of the need for an ESO, as it does not allow for the monitoring which might otherwise be able to be undertaken of Mr Temssah's activities. Nevertheless, it would be wrong to equate the capacity to monitor an offender with the broad range of means by which the risk to the community of an offender committing a serious Part 5.3 offence may be managed through the making of an ESO.

83 Thirdly, it was also submitted on behalf of Mr Temssah that Commander Read's evidence about Mr Temssah's notoriety and the speed of his radicalisation paid insufficient regard to, or ignored, his public renunciation of adherence to Islamic State, and the considerable progress he has made with CISP since December 2021. Mr Temssah has made clear his intention to continue to engage with CISP voluntarily, whether or not a supervision order is made. Counsel for Mr Temssah also emphasised a number of protective factors which ameliorate the risk associated with his release from prison: he has a stable routine designed to address his stress management and self-esteem; his views of Islam have changed; his family are aware of his offending and are entirely supportive of him; and he has spent a relatively long time in prison and thereby had extensive opportunity to reflect on his actions. I agree with these submissions. These are all important considerations, established by the evidence, which should inform a fulsome assessment of the extent to which Mr Temssah can reasonably and practicably be managed in the community. To the limited extent that they were mentioned in Commander Read's evidence in chief, it would appear that they were given cursory consideration.

84 The Attorney-General also relied upon some aspects of the evidence given by Dr Ellis. The relevance of much of this evidence to the consideration identified in paragraph (d) of s 105A.6B(1) of the Code was neither apparent nor explained. The exception was Dr Ellis' evidence that Mr Temssah's management in the community 'could pose challenges', and that '[m]onitoring of compliance will be required to assist'. Although these views were measured and expressed in general terms, it is inaccurate to say that Dr Ellis was equivocal in his opinion. Nor do I consider that much significance attaches to the fact that the opinions were formed approximately six months before Mr Temssah's release from prison. Dr Davis did not specifically address the question of Mr Temssah's management in the community in the absence of an ESO.

85 Overall, in considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, I am unconvinced on the basis of Commander Read's evidence that there are substantial impediments to Mr Temssah being reasonably and practicably managed in the community in the absence of an ESO being made.

Treatment and rehabilitation programs: s 105A.6B(1)(e)

86 In considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, the Court is required to take into account any treatment or rehabilitation programs in which he has had an opportunity to participate, and the level of his participation in any such programs. In addressing these matters, I will firstly consider Mr Temssah's engagement with CISP and then separately consider other treatment and rehabilitation programs with which Mr Temssah engaged while he was in custody.

87 In October 2021, Mr Temssah was referred to the Community Integration Support Program. CISP is the primary intervention program delivered by the Countering Violent Extremism Unit of Victoria Police and was specifically designed to address Islamic violent extremism. Participation in CISP is voluntary and it is delivered in the community and in prisons with the involvement of religious leaders from the Board of Imans Victoria.

88 After referral to CISP, a tailored intervention plan is developed for each participant. [redacted]

89 CISP adopts what is described as a 'holistic approach to disengagement and reintegration' by the provision of a combination of the following services:

(a) Spiritual support with regular one-on-one mentoring sessions with an Imam to provide participants with an opportunity to expand religious knowledge and explore their faith in a safe and controlled environment. Mentoring sessions are designed to include discussions about topics including the participant's offending, their level of Islamic knowledge and their mentor's judgment on relevant matters and current world events.

(b) Social support involving the development of job skills and vocational training, as well as post-release reintegration planning for participants nearing the end of their sentence.

(c) Clinical support to address underlining psychological issues and needs.

(d) Family support involving engagement with the participant's family to provide support and encourage the participant's continued engagement with the program.

90 Individuals can participate in CISP while in prison and after their release; participation does not necessarily cease when a person is released into the community. When a participant meets the goals set out in their intervention plan, consideration is given to their exit or transition from CISP. As part of any transition from CISP, a participant may be referred to community service providers who are able to provide assistance with particular needs (other than ideology).

91 [redacted] Now that he is in the community, as part of CISP, Mr Temssah will be offered the same support and mentoring services that were provided to him in prison. Mr Temssah is very keen to continue to participate in the program now that he is in the community.

93 Mr Temssah's own account of the positive effects of CISP is also consistent with the reports prepared about his progress in the program. [redacted] Dr Davis also confirmed that Mr Temssah's involvement in CISP has had a positive effect on him. He gave the following evidence:

He speaks very highly of his Sheikh Mentor and would appear to have gone through a process of deradicalisation that commenced in its embryonic stages prior to the program when he renounced his belief in extremist ideology at his sentencing hearing. However, as noted above, it is testament to the CISP that Mr Temssah's views regarding Islam have changed considerably under the tutelage of his Sheikh Mentor. While he may not be quite as knowledgeable about the Quran as he believes he is, the important aspect is that he no longer views Islamic rules in the strict dichotomous ways that he did in the past, is very open to asking for advice from his Sheikh mentor, and views many rules and teachings as being products of their time that have been abrogated by other knowledge. Furthermore, Mr Temssah is openly and vocally negative about ISIS and the radical speakers he previously followed. Indeed, he described the belief that martyrdom would help him save his children and family from hellfire as "bullshit" and has verbalised no plans to re-engage with extremist ideologies.

94 I accept the submission made by Mr Temssah that he has engaged positively with CISP and made significant progress whilst engaged with the program. Senior counsel for the Attorney-General accepted that Mr Temssah had engaged well with CISP during his time in custody, that there had been some positive changes and that there was no basis to doubt the quality and substance of Mr Temssah's engagement with the program. Given the focus of CISP on addressing violent extremism, these are significant matters which I take into account in evaluating whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence.

95 The evidence relating to Mr Temssah's engagement with CISP, as well as the evidence given by Dr Ellis, Dr Davis and Dr Gully, indicates that Mr Temssah's ideological framework has significantly changed since his offending. He has publicly renounced Islamic State and its extremist ideology and he has adopted more moderate Islamic beliefs. This change has been evident in the adoption by Mr Temssah of more questioning, and less dichotomous, attitudes towards Islamic tenets, aided by his CISP mentor, and by his apparent preparedness to depart from more traditional and rigid social and familial practices.[67]

96 Although these are important positive developments in Mr Temssah's ideology and approach to his religious convictions which operate to mitigate the risk of him committing a serious Part 5.3 offence, as Dr Davis stated in his evidence, Mr Temssah's religious transformation is going to be a necessarily lengthy one. Moreover, the process of deradicalisation has been underway for a modest period of some two and a half years, and there is evidence which I will address in due course[68] which suggests that Mr Temssah has not wholly abandoned his interest in religious extremism and sympathies and connections with religious extremists. This is perhaps unsurprising given that the process of deradicalization is a gradual one which takes time.[69]

97 It is also an open question about how the process of radicalisation will proceed in the community given that to date, except for the last three months, the process has occurred while he has been in custody. While Mr Temssah's progress to date gives reason for confidence, as do his strong ties with family, his vulnerabilities associated with key features of his personality mean that the durability of his ideological changes to date in the community are uncertain.

98 While he was in custody, Mr Temssah worked with a case manager from Corrections Victoria in setting goals and creating what is known as 'Local Plan'. [redacted]

101 Mr Temssah undertook various programs and activities aimed at furthering these goals and those contained in his Local Plan.

(a) [redacted]

(b) [redacted][70]

(c) [redacted]

(d) [redacted]

(e) [redacted][71]

(f) [redacted]

(g) [redacted][72]

103 [redacted] I am satisfied that while he was in custody, Mr Temssah consistently and genuinely engaged in a positive way with a range of programs and services directed at the 'pro-social' goals which served the object of rehabilitation.

104 Mr Temssah's positive attitude towards and engagement with the various programs and other activities referred above was reflected in his behaviour generally in custody. [redacted] They do not materially detract from his otherwise commendable standard of good behaviour which he maintained over the period of his imprisonment. This is exemplified in the following extract from a note prepared by Mr Temssah's case manager on 13 June 2023 as part of the final annual review undertaken by the Case Management Review Committee:

106 I accept the submission advanced on behalf of Mr Temssah that during his time in custody, he voluntarily engaged in a substantial number of 'pro-social' activities and treatment programs. That engagement has been meaningful and genuine and has improved over the period of his imprisonment. It will likely have fostered Mr Temssah's rehabilitation and reintegration with the community. These are clearly matters which militate against a conclusion that he poses an unacceptable risk of committing a serious Part 5.3 offence.

107 In considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, the Court is required to take into account the 'level' of his compliance with the obligations imposed upon him by the ISO.

108 Mr Temssah has maintained a high level of compliance with the obligations imposed on him by the ISO. On 11 April 2024, at which time the ISO had been in force for about 21 days, the AFP described Mr Temssah's initial response to the ISO as being 'largely positive', noting that he presented as being eager to comply with the conditions, [redacted]. On the same date, Mr Temssah's case manager recorded that [redacted].

109 The position appeared to be unchanged on 22 April 2024 when the AFP assessed that, throughout the period that the ISO has been in force, Mr Temssah's communications (in person, via text message and via telephone) with family members had been generally positive.

110 Mr Temssah's high level of compliance with the ISO, as well as the absence of any issue of concern in relation to his behaviour and actions in the four days after his release from prison before the ISO commenced operation, are matters which weigh against a finding that he is an unacceptable risk of committing a serious Part 5.3 offence.

Prior convictions and the views of the sentencing court: s 105A.6B(1)(g)-(h)

111 Another matter which weighs against a finding that Mr Temssah is an unacceptable risk of committing a serious Part 5.3 offence is the fact that he has no convictions, except for the offence.

112 In weighing the issue of unacceptable risk, I also take into account the views of the sentencing court and in particular the observations of the sentencing Judge referred to in [16]-[17] above.

Any other information as to risk: s 105A.6B(1)(i)

113 The parties referred to five other matters said to be relevant to the assessment of the risk of Mr Temssah committing a serious Part 5.3 offence. I consider each of these matters separately below.

114 An important protective matter which militates against the risk of Mr Temssah committing a serious Part 5.3 offence is the fact that Mr Temssah has a family around which he is in the process of reintegrating into the community and which, critically, provides a key motivation for his aspirations about the future, the pursuit of which is likely to have a prophylactic effect on his risk of reoffending.

115 Mr Temssah had the support of his family while he was in custody, in particular his wife and two children. They remained close supports throughout the legal proceedings which led to his imprisonment, despite the fact that his offending was unknown to them when it occurred. While he was in custody, Mr Temssah regarded his family as his main motivational factor and, after the restrictions associated with the COVID-19 pandemic were lifted, he received weekly visits from his wife and children, as well as his parents and a brother.

116 While he was in custody, Mr Temssah critically reflected on the impact of his offending behaviour on his family. It would appear that a substantial part of his motivation to deradicalise and to reform has been the guilt he feels about what he has subjected his family to as a result of his offending, together with an appreciation of the ongoing support he has received from his family, and his desire to return to his family and to be a better and more effective member of it. As to the last point, there is evidence that Mr Temssah has sought to undertake parenting programs and that part of his motivation in pursuing a fitness regime has been to lose weight so that he can be more active with his children. Maintaining a healthy weight has been a personal struggle for Mr Temssah for many years. The evidence also indicates that, Mr Temssah now views his arrest and term of imprisonment as enabling him to spend his life with his family, something which he may not have been able to pursue if he had not been arrested and had travelled overseas.

117 Overall, I accept that Mr Temssah is highly motivated to be a committed member of his family. His pursuit of that goal, combined with the punishment to which he has been subject, is likely a very significant factor in ameliorating the risk that he may commit a serious Part 5.3 offence.

118 It was submitted on behalf of Mr Temssah that he has found the conditions imposed by the ISO to be onerous in various ways and that this has in turn caused him stress and frustration. Further, it was submitted that Mr Temssah is anxious about breaching the ISO and that, as a consequence, he has avoided activities which he would otherwise like to do (such as working with his brother). On the basis of these propositions, which I generally accept are established on the evidence, it was submitted that an ESO would likely have a counterproductive effect on Mr Temssah.

119 Without more, this contention did not rise above assertion and lacked any sufficient particularity. Those limitations were sought to be addressed by anchoring the submission in the contents of a report entitled 'Facilitating Engagement from Violent Extremism: Evidence from the Community Integration Support Program (CISP) Snapshot Report' (the CISP report). The CISP report, which was published in 2024, was commissioned by Victoria Police and prepared by the Applied Security Science Partnership at Victoria University in partnership with the Board of Imans Victoria. The object of the research project the subject of the report was to identity factors that affect meaningful engagement with CISP and enhance the likelihood of successful disengagement from violent extremism. It is said to be based upon information representing the most comprehensive analysis of any countering violent extremism program in Australia. Some 20 people convicted and sentenced to prison for terrorism related offences in Victoria participated in the research.

120 As is presently relevant, the CISP report identified factors, drawn from interviews with participants, said to inhibit successful disengagement from terrorism or violent extremism. One such factor was 'post-sentence restriction orders that act as a barrier to reintegration and building a meaningful life away from violent extremism'. 'Highly restrictive control orders' were a 'blocker' to the reintegration of terrorist offenders following their release from prison. Post-sentence restrictions, especially control orders 'appeared to provoke considerable anxiety in CISP participants' and are 'viewed as complex and bewildering measures that would make a return to normal life impossible'. The authors of the report state that:

While there can be valid security reasons for some restrictions, there is a risk that excessive use of such restrictions undermines rehabilitation and in the longer term undermines security. Given the importance of rehabilitation and reintegration to successful disengagement, such restrictions may prove counterproductive. Offenders were seeking post-sentence restrictions that facilitate rehabilitation and reintegration.

121 In relation to this issue, the CISP report concludes that:

A focus on security needs to be balanced with an understanding that enduring risk is most effectively mitigated through enabling a participant to build a pathway out of extremism that provides them with a meaningful life. If the rehabilitation process becomes too hindered by attempts to contain a participant, it may ultimately jeopardise the security it is seeking to enhance.

122 While the purpose of the research reported in the CISP report is laudable and its results are clearly of interest to the formation of policies directed at addressing violent extremism, as with all research, it has clear limitations and it should not be deployed in support of propositions too remote from the specific subject matters with which it is concerned. Those principles have been overlooked in the attempt to rely upon the CISP report as providing information relevant to the assessment of the risk of Mr Temssah committing a serious Part 5.3 offence.

123 One important limitation evident in the CISP report is that, in addressing 'post-sentence restrictions' imposed by control orders, it is apparent that the authors are referring to an instrument which has a materially different provenance to an ESO. The report states that the control orders with which it is concerned, 'are made when a person is believed to pose a risk of committing a terrorist offence in the future'. As I have explained, that does not reflect the relevant legal test under the Code which concerns whether there is an unacceptable risk of an offender committing a particular class of terrorist offence. In the context of a report which is drawn from the responses of CISP participants, it is unclear to me how the authors' use of this particular notion of a 'control order' affects the utility of the conclusions which might otherwise be drawn from it.

124 The focus of the conclusions of the CISP report are on the claimed adverse effects of 'highly restrictive' and 'excessive' conditions imposed by control orders. It is not apparent how the Court might properly assimilate such concerns in undertaking its current function given that, if the Court determines that Mr Temssah is an unacceptable risk of committing a serious Part 5.3 offence, before making an ESO, the Court must be satisfied that its conditions are reasonably necessary, and reasonably appropriate and adapted.

125 Finally, it must not be overlooked that the parts of the CISP report that are of present relevance are concerned with the risk or possibility that the excessive use of restrictions might undermine an offender's rehabilitation and, in the longer term, security interests. There can be no serious suggestion that the conditions imposed on Mr Temssah by the ISO, which in substance are proposed to be continued by an ESO, are 'highly restrictive' or 'excessive', in light of the evidence given by the clinical psychologist called by Mr Temssah that the conditions were 'quite appropriate'.

126 For these reasons, contrary to the submissions made on behalf of Mr Temssah, I do not consider that any issue of substance arises in relation to the alleged counterproductive effects of an ESO on him which might constitute further information about the risk of him committing a serious Part 5.3 offence.

127 It was submitted on behalf of Mr Temssah that the fact he has not demonstrated or acted out on any perceived grievances and continued his rehabilitation, including while in the community, was relevant to his question of risk.

128 In relation to perceived grievances, counsel for Mr Temssah drew attention to set-backs which it was said he had suffered while in custody, including being denied permission to be a 'peer support educator'[74] and being refused parole. In respect of a second parole application made by Mr Temssah, the decision to refuse parole was made by the Attorney-General in February 2023, but was not communicated to him until he was denied parole on 12 March 2024.[75] Further, as has been noted, the ISO had caused Mr Temssah considerable stress and anxiety. Aspects of the ISO conditions were regarded as unfair; reference was made to Mr Temssah's inability to attend two of three days of his uncle's funeral as they took place at an address where firearms were lawfully stored.

129 While these matters generally stand to Mr Temssah's credit in the assessment of risk, they do not in substance add anything material beyond the matters already considered relating to the good progress of his rehabilitation and his compliance with the ISO since his release from custody.

Mr Temssah's communication and relationships with other prisoners

130 The Attorney-General submits that, in assessing the issue of risk, it is significant that, while in custody, Mr Temssah chose to correspond with at least eight convicted terrorist offenders with whom he had never been accommodated, including after December 2021 when he commenced CISP. This contention developed some prominence in the parties' closing submissions; as a consequence leave was given for them to file further submissions in relation to further evidence relevant to this issue which was tendered late in the hearing.

131 An evaluation of the Attorney-General's contention requires a careful consideration of the evidence[76] and the parties' submissions. Two matters of importance can be noted at the outset.

132 First, given the way in which Mr Temssah's case in opposition to the making of an ESO was put, a critical disjuncture in the chronology of events is the point of time when he commenced the process of deradicalisation. On Mr Temssah's case, this occurred when he renounced his adherence to Islamic State in June 2021. However, in terms of the practical manifestations of that change, and mindful of the inherently gradual process of deradicalisation, a more appropriate point of reference is when Mr Temssah commenced [redacted]. The fact and content of communications between Mr Temssah and other convicted terrorists before this date is information which is unlikely to provide meaningful assistance in assessing the risk now posed by Mr Temssah. These are communications which are not contemporaneous with the Court's present task and are from a time when Mr Temssah had not, or not meaningfully, commenced the process of deradicalisation. The corollary is also true; to the extent that Mr Temssah chose to correspond with any convicted terrorist after December 2021, inferences relevant to risk may be able to be drawn. Of course, consideration of any inferences which might ultimately be drawn will depend on all the relevant facts and circumstances.

133 Secondly, in analysing the evidence, an important matter to consider is whether any correspondence between Mr Temssah and another convicted terrorist occurred after they were housed or co-located together. The fact that there had previously been shared or close living arrangements between two people may, unsurprisingly, allow for the formation of personal relationships and friendships which might later find expression in the exchange of correspondence and which may have little or any bearing on the issue of risk. All will depend on the content and context of the communication.

134 Mindful of these matters, my findings relevant to assessing the Attorney's General's submissions are as follows.

(a) [redacted][78]

(b) [redacted]

(c) [redacted]

139 [redacted] On its face this raises issues of concern about the network of social relationships Mr Temssah is seeking to maintain and foster. It would however be inappropriate to merely focus on the total number terrorist offenders Mr Temssah has maintained some degree of contact with. To do so would, amongst other things, ignore the very confined number of social relationships open to a prisoner while incarcerated, the fact that deradicalisation is a gradual process which occurs over time and the fact that some of these relationships will likely reflect to some degree genuine personal bonds of friendship and connection forged by close living arrangements in prison.

140 However, beyond the total number of convicted terrorist offenders with whom Mr Temssah has elected to communicate since December 2021, there are some features or qualities of those communications which are of concern. Since December 2021, Mr Temssah has chosen to correspond with [redacted] offenders with whom, at the time of the communications, he had never been co-located.[79] There can be no suggestion that by corresponding with these individuals, Mr Temssah was simply giving effect to personal connections and friendships formed through past close living arrangements. And there is otherwise no evidence to suggest that these communications reflected other personal connections untainted by extremism. [redacted]

141 Mr Temssah's conduct in seeking to remain in contact with a number of convicted terrorist offenders after his release from custody, particularly those with whom he was not previously co-located in prison, raises a number of issues of concern which bear upon my assessment of risk. It raises doubt about the extent of his progress along the path of deradicalisation. It raises questions about the soundness of his judgment in considering his reintegration into the community. It also raises questions about his insight into the factors which influenced his offending, in particular, his susceptibility to influence. Although the content of these letters does not otherwise raise specific issues of concern, Mr Temssah's desire to remain in contact with convicted terrorists after his release from prison, in conjunction with his maladaptive personality traits including his susceptibility to the influence of others, is a significant matter which suggests that he poses an unacceptable risk of committing serious Part 5.3 offence.

142 This conclusion finds some support in the evidence given by Dr Davis and Dr Ellis. Their evidence, which was generally consistent, was that the community established in prison meant that it was not necessarily alarming, nor completely unexpected, for Mr Temssah to have sought to stay in contact with persons convicted of serious terrorism offences by exchanging correspondence with them. However, significantly, they both considered that these communications were a concern as indicating that Mr Temssah may not have fully considered his behaviours, and they justified the monitoring of the communications so as to know their subject matter and how they occurred.

Content, tone and attitudes expressed by Mr Temssah in prison

143 The Attorney-General submitted that the content, tone and attitudes expressed in Mr Temssah's communications while he was in prison are relevant to assessing his risk. Reference was made to the following communications.

(a) [redacted]

(b) [redacted]

(c) [redacted]

(d) [redacted][80]

(e) [redacted]

(f) [redacted]

(g) [redacted]

(h) [redacted]

144 I have already noted those statements made by Temssah and relied on by the Attorney General which I propose to either disregard or attribute with little weight. [redacted] This communication, sent more than 4 years ago, does not provide any meaningful assessment of the risk now posed by Mr Temssah, particularly given that it occurred sometime before Mr Temssah renounced his adherence to Islamic State in June 2021 and well before he commenced the process of deradicalisation in December 2021. Further, the content of the phone call referred to in [Error! Reference source not found.] above is also lacking context to give it any clear relevance to the assessment of risk. Moreover, there is no evidence to suggest that Mr Temssah was later involved in a beating or an attack.

145 However, the remaining communications do, on their face, raise issues of concern which are capable of informing, in a broad way, the assessment of risk. [redacted] It also undermines the claim that Mr Temssah has developed real insight and responsibility for his offending.

146 [redacted] The picture which emerges from this statement is at odds with the one advanced by counsel of a reformed offender who, through careful reflection, has come to take responsibility for his actions and to understand that they were profoundly misguided.

147 It would be unsound to give undue weight to these communications by Mr Temssah as they are only contextualised in a limited way. I also do not overlook the fact that, notwithstanding the disturbing aspects of these communications, there is no evidence that, during his period of imprisonment, Mr Temssah has exhibited any actual behaviours indicative of an extremist ideology. Nevertheless, the apparent candour of Mr Temssah's statements, in circumstances where he may be taken to be well aware that his communications in prison were not private and able to be surveilled, gives them an inherent weight which cannot readily be ignored.

148 This is generally consistent with the evidence of Dr Ellis who was provided with various audio recordings, including the four referred to in [145]-[146] above (although he did not have the benefit of knowing when they were made). In his report dated 12 April 2024 commented that:

They indicate that Mr Temssah interacts differently to how he does in a clinical interview. He is more impulsive and exasperated in his interactions than in a clinical setting. He is more disparaging of authority. ... Overall the content of these calls do not alter my opinions, but are consistent the concern that personality factors (evidenced by emotionally labile interactions in them) remain a concern, and that areas of uncertain risk (such as attitudes to authority) require further monitoring.

149 Dr Davis stated that he was not as 'emphatic' as Dr Ellis in this view, but agreed with the desirability of monitoring. Although Dr Davis did not have any particular concerns about the audio recordings he was provided for review, the evidence does not establish that he was provided with the specific audio recordings referred to in [143(b)], [Error! Reference source not found.] or [143(d)] above.

150 Collectively, for the reasons I have explained, Mr Temssah's communications referred to in [145]-[146] above comprise information which I take into account as tending to support the conclusion that he is an unacceptable risk of committing a serious Part 5.3 offence.

151 In considering all of the evidence relating to the matters referred to above, the assessment of whether the risk of Mr Temssah committing a serious Part 5.3 offence is unacceptable is finely balanced and falls to be determined by reference to the following key considerations.

152 At a general level, although there remains a heightened level of risk of a terrorist attack occurring in Australia, which ASIO assesses to be a 50/50 chance, and Islamic State continues to pose a very real threat, there are important factors particular to Mr Temssah which moderate that general assessment. He has genuinely and publicly renounced Islamic State and its extremist ideology. While in prison he engaged extensively with various rehabilitation programs, including CISP, which have positively shaped the process of deradicalisation by aiding the development of a more positive ideological framework. Mr Temssah remains committed to continuing his work with his CISP mentor in the community. No issues of concern have been raised about his activities since his release from custody and he has complied with the ISO. And, importantly, he is highly motivated to re-establish positive and meaningful relations with his family.

153 These are all encouraging signs. However, Mr Temssah's religious transformation away from extremism is, as Dr Davis identified, a work-in-progress which will require a lengthy period of time before it is secured. Further, it is a process which to date has been forged in institutional confines; its durability in the face of the vicissitudes of life in the community is largely untested. It must also proceed from the footing of the various vulnerabilities in Mr Temssah's personality identified by Dr Ellis and Dr Davis, which characteristics tend to be enduring and which only improve slowly over time. Some of these traits, in particular Mr Temssah's impulsivity and poor sense of identity, were directly implicated in his offending through, in particular, his susceptibility to influence, as Dr Ellis explained in his evidence. In terms of the seriousness of the consequences of the risk posed by Mr Temssah if it eventuates, it must not be overlooked that he was radicalised within a period of only six months, by which time he was willing to secretly leave his family to travel overseas where he was intending to arm himself in service of a religious ideology for which he was willing to pay with his life.

154 The evidence about Mr Temssah's correspondence with other convicted terrorists and the content and tone of some of his other communications expressed while in prison, both of which I have considered in detail below, underline the concerns I have described above. I consider that he poses an unacceptable risk of committing a serious Part 5.3 offence.

Proposed conditions: reasonably necessary, and reasonably appropriate and adapted

155 Having determined that Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, if it is to make an ESO with application to him, the Court must also be satisfied on the balance of probabilities that the conditions proposed to be imposed on him by the order are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.[81] The essence of this evaluation is proportionality: 'A condition will not be reasonably necessary if the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires'. [82]

156 In undertaking this assessment, the Court must take into account, as a 'paramount consideration', the object of Division 105A: '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 CDO or an ESO'.[83] The statutory object must accordingly to be given the highest level of importance in the assessment to be made by the Court.[84]

157 The extent to which an order will intrude upon a defendant's liberty is also an important consideration.[85]

158 Subject to the forgoing, the general approach to be adopted in considering whether proposed conditions are reasonably necessary, and reasonably appropriate and adapted, was explained by John Dixon J in Attorney-General v Khan[86] in the context of an application for an ISO and which applies equally to the proposed making of an ESO. I addressed this in the ISO reasons as follows:[87]

Whether there are reasonable grounds for considering that each condition sought to be imposed is 'reasonably necessary' requires 'an evaluation of whether the condition needs to be imposed, whether it is essential for achieving the relevant purpose'. As to whether there are reasonable grounds to consider each condition is 'reasonably appropriate and adapted' for achieving the statutory purpose, [John Dixon J] stated as follows:

This requires that each condition is, objectively assessed, suitable or proper in the circumstance to achieve the statutory purpose. The requirement that each condition be 'adapted' requires that I assess the specific mechanism by which the proposed condition is best fashioned or moulded to achieve the statutory purpose. The statutory assessment involves the synthesis of various incommensurable considerations in order to reach the required conclusion.

Although there is no judicial guidance on the application of this particular test, in Thomas v Mowbray , the High Court considered a test framed in materially identical language in the context of assessing the constitutional validity of interim control orders under s 104.4 of the Code. Gleeson CJ stated that:

The court has to consider whether the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires.

In the case of an ISO, the issue of reasonable protection of the public is framed in terms of the paramount consideration, the objective of protecting the community from an unacceptable risk that terrorist offenders may commit further serious Part 5.3 offences.

Judicial techniques must then be applied to each proposed obligation, prohibition and restriction. Section 104.4(1) requires in para (d) that each of these be measured against what is 'reasonably necessary' and also against what is 'reasonably appropriate and adapted' for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a 'balancing exercise' (s 104.4(2)).

The High Court in Vella v Cmr of Police (NSW) , described a similar requirement for balancing incommensurables when considering a serious crime prevention order in these terms:

The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there was a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate.

The High Court added that no relevant distinction could be drawn between the New South Wales legislation there being considered and the regime upheld in Thomas v Mowbray.

In considering the application of s 105A.9A of the Code, John Dixon J also stated that he was considerably assisted by the following three factors identified by Wright J in New South Wales v BP (No 2) which would establish a sufficient connection between a proposed particular condition and the risk of future offending:

1. the condition addresses a means of controlling possible risk factors related to the type of offending in question;
2. the condition is designed to avoid situations where the offender's rehabilitation or reintegration into the community might be compromised; or
3. the condition does not directly relate to the offender's risk but promotes the efficacy of the order containing other conditions which do

159 The conditions to be imposed by an ESO as ultimately advanced by the Attorney-General were in substance the same as those which currently apply to Mr Temssah by operation of the ISO. To the extent they differ, the proposed conditions for an ESO involve specific diminutions in the restrictions and obligations imposed on Mr Temssah by the ISO; they are no more burdensome on him than those currently operating as a result of the ISO.

160 In the ISO reasons I found that each of the conditions now imposed by the ISO, and which are sought to be imposed by an ESO, were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of a serious Part 5.3 offence being committed and that each of them was within one or more of the categories referred to by Wright J in New South Wales v BP (No 2).[88]

161 In the present application, the Attorney-General relied on the same evidence it relied on in support of the appropriateness (in the relevant statutory sense discussed above) of the conditions to be imposed by an ESO, as well as the reports prepared by Dr Ellis. Dr Ellis gave evidence as to how the imposition on Mr Temssah of various conditions was appropriate for the purposes of managing risk.

162 Significantly, Dr Davis also gave evidence that, if the Court determined to impose an ESO on Mr Temssah, he considered that many of the conditions in the ISO were 'appropriate and well considered' and that some were therapeutic.

163 The above evidence formed the basis of detailed written submissions by the Attorney-General as to why each of the proposed conditions were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of a serious Part 5.3 offence being committed.[89] Except for the specific conditions referred to in the paragraphs below, Mr Temssah did not make any submissions that particular conditions proposed by the Attorney-General were not reasonably necessary, or reasonably appropriate and adapted, for the statutory purpose. Subject to my consideration of those specific conditions discussed below, I accept the submissions advanced by the Attorney-General; each of the proposed conditions are within one or more of the categories referred to by Wright J in New South Wales v BP (No 2).[90] I am also satisfied that their combined effect is reasonably necessary, and reasonably appropriate and adapted, for the identified statutory purpose.

164 The terms of the proposed conditions which were contested by Mr Temssah are considered separately below. I have addressed the substance of each controversy and stated my determination which is then reflected in the terms of the ESO and its conditions which are annexed to these reasons. In addition to the specific reasons to which I will refer, in support of these submissions, counsel for Mr Temssah generally emphasized the following propositions:

(a) Any conditions imposed should foster Mr Temssah's rehabilitation by allowing him to access and utilise 'mainstream' devices, programs and utilities as he might do when not subject to an order, without the delay of having to seek prior approval.

(b) Any conditions should be limited to what is strictly necessary in relation to any finding of unacceptable risk and should be abundantly clear as to what is expected of Mr Temssah. The basis of this submission was the proposition that the conditions imposed on Mr Temssah by the ISO are causing him significant stress. Dr Davis gave evidence that Mr Temssah had reported that the conditions under the ISO were causing him anxiety because he feared inadvertently breaching them.

(c) The need for any conditions to be readily understandable.

165 Condition 6.1 prohibits Mr Temssah from communicating or associating with certain persons. Mr Temssah seeks that the categories of persons he is prohibited from associating with pursuant to the ISO be altered in two respects.

(a) First, paragraph (d) prohibits Mr Temssah from knowingly communicating or associating with any person located in any 21 identified countries or areas, one of which is Lebanon. The prohibition is subject to an exception relating to close family members (as defined). Mr Temssah seeks the removal of the reference to Lebanon because he has extended family who live there, including an elderly aunt who is ill. I consider that the reference to Lebanon is reasonably necessary because there is some evidence before the Court linking Islamic State's activities with Lebanon. Further, the current provision is reasonably appropriate and adapted because, by reason of condition 22.1, Mr Temssah is at liberty to seek an exemption from the requirements of condition 6.1(d) to contact specific persons including extended family members.

(b) The effect of paragraph (b)(iv) is that Mr Temssah is prohibited from knowingly communicating or associating with any person who is subject to parole or bail in relation to a serious offence (as defined). Mr Temssah seeks that this provision be excluded from applying to his brother-in-law, [redacted] who is currently subject to parole. As the offending by Mr Temssah's brother-in-law is unrelated to terrorism, I do not consider that the condition as proposed by the Attorney-General is reasonably necessary to achieve its relevant purpose. Furthermore, the operation of the prohibition in relation to communications with Mr Temssah's brother-in-law may be expected to have the negative effect of interfering with Mr Temssah's capacity to interact with his family, such as at family functions where his brother-in-law is present. I have noted that Mr Temssah's family connections and relationships are an important protective factor in relation to his ongoing rehabilitation and deradicalisation. Condition 6.1 will accordingly be amended to make clear that condition 6.1(b)(iv) does not apply to [redacted].

166 Condition 7 prohibits Mr Temssah from engaging in certain activities without giving prior written notification to the AFP Superintendent and condition 8 prohibits him from engaging in certain activities without the written approval of the AFP Superintendent. The parties are in agreement that activity by Mr Temssah in the nature of forming, joining or affiliating with groups, clubs or organisations, which activities are presently subject to approval, be made subject to notice only. Mr Temssah has also proposed that his participation in volunteering, presently subject only to a notice requirement, be made subject to approval (except in association with his children's school). The Court will make orders reflecting these matters. The Court will also alter the requirement related to notice to specify that notice be given within 24 hours as proposed by Mr Temssah; such a condition has the merit of being precise and clear.

167 The controversy between the parties in relation to condition 7 concerns Mr Temssah's activities associated with any internet-based social networking service. Any such activities are currently subject to approval as per condition 8; Mr Temssah proposes that that condition be subject to notice only. I consider that, because Mr Temssah's use of online platforms was part of the context in which the offending occurred, it remains reasonably necessary for his use of internet-based social networking services to be limited by way of approval rather than by notification. This will allow for a proper evaluation of risk in respect of any specific uses proposed by Mr Temssah.

168 Condition 9.1 in substance requires Mr Temssah to notify the AFP Superintendent within 24 hours if he transfers money or money's worth in excess of a specified amount within any 24 hour period. As originally made, the ISO specified this daily limit as $200; in the ISO made on 14 May 2024 that amount was increased to $500 reflecting the position of the Attorney-General advanced at the hearing of the ESO application. Mr Temssah seeks that this amount be fixed at $800 in order to avoid having to remain constantly vigilant as to the amount of money transacted within 24 hours and the need to make multiple disclosures to the AFP. I agree with the submissions made on behalf of the Attorney-General that the condition is reasonably necessary given that Mr Temssah's offending included payment of $880 to an undercover operative. Further, I consider the notice obligation in respect of transfers of more than $500 in any one day is reasonably appropriate and adapted for the statutory purpose.

169 Condition 10 prohibits Mr Temssah from being knowingly present at certain locations, including any premises knowing that firearms or ammunition are likely to be located (condition 10.1(c)). Mr Temssah seeks that this specific condition be removed because he is subject to a Firearm Prohibition Order (the firearms order) which prohibits his attendance at any property where firearms are kept. The condition is accordingly said to be unnecessary. Notwithstanding the existence of the firearms order, I consider that condition 10.1(c) remains reasonably necessary given the nature of Mr Temssah's offending and in circumstances where the firearm order only applies to conduct engaged in inside Victoria, and where the Attorney-General would not appear to have any power in relation to that order.

170 Condition 12 prohibits Mr Temssah from, amongst other things, accessing or viewing documents, including in electronic form and whether by animation or computer generation, which relate to or depict those matters listed in clause 12.3, including explosives and bombing. This condition is subject to the exemptions in clause 12.4. Mr Temssah seeks to add to those exemptions the circumstance where a prohibited matter is depicted in any PlayStation or computer game. It was submitted that playing computer games does not form part of the background to Mr Temssah's offending and that he wants to engage with his children who enjoy playing these games which often subtly and innocuously include prohibited matters such as explosives and the like. The Attorney-General opposes this proposed change on the basis that there is a wide array of computer games with violent and terror-related content and because Mr Temssah can apply for an exemption under clause 12.1.

171 The Attorney-General's opposition to the change proposed on behalf of Mr Temssah was unreasonable. Under the other provisions of condition 12, Mr Temssah is permitted to watch and read materials that contain prohibited matters, provided that they are published and broadcast in any of the various ways set out in clause 12.4. In those circumstances, it is reasonably necessary for a similar exemption to be provided for in relation to computer games, particularly as it will allow him to engage with his children and to thereby foster familial relationships.

172 Condition 16.1 prohibits Mr Temssah from using any internet service other than that provided by the AFP Superintendent. Mr Temssah seeks to extend that permission to include 'any approved workplace'. It was submitted on his behalf that this proposed change reflects the likelihood that any employment Mr Temssah might obtain will almost certainly necessitate the use of an internet service, and that his rehabilitation and reintegration into the community is best facilitated through his engagement in activities such as employment. These are valid points to be weighed against the fact that Mr Temssah used his work computers and work email account as part of his offending. And it was through online means that Mr Temssah was rapidly radicalised. In those circumstances, I consider that it remains reasonably necessary and reasonably appropriate and adapted for Mr Temssah's access to internet services to be constrained to that provided by the AFP, save for the specific exceptions set out in clause 16.3. I also consider that that provision is reasonably appropriate and adapted having regard to the fact that the provision may be the subject of a request for an exemption as per clause 22; that is the appropriate means to address the concerns raised on behalf of Mr Temssah in relation to employment.

173 Condition 18.1 in substance prohibits Mr Temssah from accessing or using any computer or like device that is capable of accessing the internet, other than the devices provided to him by the AFP Superintendent. A number of exceptions to this prohibition are contained in condition 18.4 which Mr Temssah seeks to expand by including reference to a PlayStation and to a computer or like device used at home which is connected to the internet service provided by the AFP and which is used for the purpose of assisting his children with their homework or school related activities.

(a) The proposed inclusion of a reference to a PlayStation, in the context of condition 18 and the conditions as a whole, is not reasonably appropriate and adapted for achieving the statutory purpose because it is in substance already permitted by condition 18.4(e), except in relation to applications that connect with other users or servers by the internet or are local area network. There is no evidence to support the claim made on behalf of Mr Temssah, which is contested by the Attorney-General, that a PlayStation requires access to the internet to function. Given the nature of Mr Temssah's offending and his susceptibility to influence, I accept that the condition prohibiting him from in effect using gaming devices online is reasonably necessary because many such devices and applications allow for online communications.

(b) I do not, however, consider that it is essential for achieving the relevant purpose that condition 18 operate so as to prohibit Mr Temssah from using a computer, tablet or other device at home for the purpose of assisting his children with their homework or school related activities and where that device is connected to the internet service provided by the AFP Superintendent. A further exception to this effect will be added to condition 18.4.

174 Condition 19.1 prohibits Mr Temssah from using, downloading or accessing applications or computer programs unless they were installed on his mobile phone, computer or permitted device which was provided to him by the AFP. Mr Temssah seeks that this restriction be removed because other conditions already limit Mr Temssah to the devices and internet services provided or authorised by the AFP, and because the removal of the condition would allow him to freely use applications without having to go through a drawn-out approval process; the point is made that there are a wide range of everyday applications which are commonly and routinely used.

175 Given the nature of Mr Temssah's offending which involved online communications and activities, together with his susceptibility to influence, I consider that the condition 19.1 remains reasonably necessary for the statutory purpose. I also consider that it is reasonably appropriate and adapted having regard to the capacity for Mr Temssah to obtain prior written approval from the AFP Superintendent to use other platforms and programs.

176 The effect of condition 19.2 is to provide that, other than the platforms referred to in condition 19.1, Mr Temssah is prohibited from downloading, accessing or using various messaging services and electronic means of communication. Mr Temssah seeks that the list of services and applications be removed so that reference is made only to the applications Telegram and Wickr on the basis that he is already restricted to the use of particular devices provided to him, real time oversight is available over his phone and because the two applications referred to above were those that Mr Temssah used in the period of the offending.

177 Given the nature of Mr Temssah's offending which occurred in the context of online activities and communications and his susceptibility to influence, the broad proscription made by condition 19.2 remains reasonably necessary. Further, it would be inappropriate to limit the conditions to the two applications which Mr Temssah used in the offending given that it is apparent that there are many other applications available which have a similar functionality or capability.

178 Condition 20 prohibits Mr Temssah from purchasing, possessing or using certain items including firearms, prohibited weapons and a knife in a public place without reasonable excuse. He is also prohibited from obtaining, or applying to obtain, a licence to possess or use a weapon and he must not use, store or permit the storage of firearms or ammunitions at his place of residence. The primary submission made on behalf of Mr Temssah is that these prohibitions in relation to firearms and cartridge ammunition are unnecessary because they are already the subject of a firearms order. I do not accept this submission for the reasons dealt with in [169] above. In my assessment these conditions remain reasonably necessary and are reasonably appropriate and adapted for the statutory purpose.

179 The Attorney-General submitted that the ESO to be imposed on Mr Temssah should operate for two years. The principal foundation for this submission was Dr Ellis' evidence, including his opinions that:

(a) 'From a psychiatric risk management perspective two years would be reasonable to refine the appraisal of risk in this case. Abnormal personality traits are relapsing states and resistant to treatment and rehabilitative efforts. ... His adjustment to community living after a lengthy time in custody may take time, and could lead to changes in how he sees himself and the world'.

(b) 'In general, the highest risk time in the community for re-offending is the first two years. The main modifiable risk factor present is personality traits, which could be expected to improve within two years of psychotherapy. Other risk factors, such as stable employment, accommodation, attitudes and personal supports could be better assessed as stable and sustained after two years'.

(c) 'If compliant for less than two years there would be less certainty that risk factors were mitigated in a sustained fashion, than if compliant and offence free for two years'.

180 In referring to Dr Ellis' evidence, Commander Read's evidence was that an order of two years would allow the AFP to appropriately monitor compliance and ensure Mr Temssah is receiving structured support to facilitate community integration.

181 The Attorney-General also relied upon Dr Davis' evidence that a period of two years would 'certainly' be enough for him to demonstrate stability in the community and to allay any fears about a return to online extremist material or engagement with 'less than ideal' individuals. Dr Davis opined that, 'One could even argue that 12 months may be enough time to demonstrate stability'. Reference was also made to Dr Davis' evidence that personality features do not change very rapidly and his observation that 'Mr Temssah's religious transformation is going to be a necessarily lengthy one, as is the case with many people who embrace religion and spirituality in their lives'.

182 It was submitted on behalf of Mr Temssah that, consistent with the evidence of Dr Davis, a period of two years for the operation of the ESO was too long and that, if an order was to be made, it should operate for as short a time as possible, in the range of 6-12 months. Reliance was placed on the following observations by John Dixon J in Attorney-General v Khan (No 2) which were submitted to be apposite to Mr Temssah:[91]

Both of the experts recognise that in the context of the defendant's increasing maturity the targeted interventions achieved by the conditions of the order are designed to enable the defendant to transition to a state where it can confidently be accepted that she no longer presents an unacceptable risk of further offending. In this context it may be accepted that substantial improvements in the management of her mental health, counselling to address her past experiences, family therapy, religious support and education, vocational training and further general education and the development of skills and experience in relationships and social interactions are likely to achieve this goal. In this context, the continuation of unduly restrictive conditions into the future may be counterproductive, which is a risk that was identified by each of the experts in setting conditions of the ESO.

183 It was also submitted that Mr Temssah had already had what is now a period of about three months since he was released from custody, and it has now been some nine months since Dr Ellis assessed him.

184 The central issue in determining the duration of an ESO is the requirement that an order be for a period, of no more than three years, that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.[92] The corollary is that the Court is not empowered to make an order to operate for any period beyond that which is reasonably necessary to prevent the unacceptable risk posed by an offender.

185 In directing myself to this issue, it is necessary to first note that, contrary to the submissions made on behalf of Mr Temssah, Dr Davis' evidence does not provide any support for an ESO to have a duration of less than 12 months. The oral evidence given by Dr Davis about the duration of an ESO was consistent with the evidence contained in his expert report referred to above.

186 Dr Ellis gave oral evidence that, although it was possible that a period of 12 months may be sufficient for Mr Temssah to demonstrate sufficient stability in the various features which bear upon an assessment of risk, in his professional judgment, the coalescence of a number of factors meant that it was more likely to be in the order of two years. The nature of the considerations relevant to Dr Ellis' assessment was revealed in the following extract of his evidence, which also highlights that, to some degree, that assessment is inherently speculative:

... it's largely ... a professional opinion rather than one based on empirical data looking at ... rates and times but ... I think it ... could be ... much better in a shorter time.

That if you were able to demonstrate for example ... productive employment, ... good relationships with family members that are sustained, good relationships with supervisors, progressing in psychotherapy with his psychologist ... it might be shorter and I would accept that. I think it's more likely to be in the order of two years but I, I would accept it could be shorter.

187 The Court may not make an ESO which operates for any period beyond that which is reasonably necessary to prevent the unacceptable risk posed by an offender. The evidence of both experts supports a finding that that period is at least 12 months. Dr Ellis has identified a number of general considerations which might reasonably suggest that the period is two years. However, those considerations need to be weighed against the possibility that a lesser period may be sufficient as explained by Dr Ellis in his evidence referred to above. In my view, this is a probability, rather than a mere possibility, given the progress Mr Temssah has made to date pursuing a path of deradicalisation and the factors which provide a degree of confidence that that process will eventually be successful. On all the evidence, I consider that the likelihood is that an ESO with a duration of two years would be beyond that which is reasonably necessary to prevent the unacceptable risk posed by Mr Temssah. The Court accordingly ordered that the ESO imposing the conditions and exemptions set out in Annexure A operate for a period of 18 months, being the period which I consider is reasonably necessary for the order to operate to prevent the unacceptable risk Mr Temssah presents of committing a serious Part 5.3 offence.

1. Supervision, treatment and intervention programs

Condition 3 - Psychological assessment and treatment

1. Accessing or possessing prohibited documents

Condition 12 - Producing, distributing, accessing or possessing prohibited documents

1. Communication, internet use and electronic devices

Condition 15 - Fixed or landline telephone services and public telephones and other communication devices

Condition 18 - Computers, tablets and other devices

Condition 23 - Exemption granted by the AFP without a request from you

Condition 24 - Approval from the AFP Superintendent

• 1.1 You must reside each night at [redacted] (the specified premises) and must not begin to reside at any premises other than the specified premises without giving prior written notification to the AFP Superintendent (as defined in Interpretation below).

Supervision, Treatment and Intervention Programs

• 2.1 You must report to the Branch Manager (as defined in Interpretation below) as reasonably directed by the Branch Manager:

(a) in person at a specified location (including your residence);

(b) by telephone; or

(c) by audio visual link.

• 2.2 You must participate in the preparation and any assessment and review of your case plan by the Branch Manager.

1. Condition 3 (psychological assessment and treatment)

• 3.1 If directed by the Branch Manager, you must schedule an assessment with a psychologist registered with the Australian Health Practitioner Regulation Agency, to take place as soon as possible to determine whether you would benefit from psychological treatment.
• 3.2 You must:

(a) undergo an assessment scheduled in accordance with Condition 3.1 at the date, time and location that you have booked; and

(b) if assessed as suitable for psychological treatment in accordance with Condition 3.1 (or an equivalent assessment undertaken prior to the commencement of this order), you must undergo any recommended treatment, and attend all psychological appointments at the date, time and location that you have booked,

(i) notify the psychologist in advance if you are unable to attend an appointment and reschedule a replacement appointment at the earliest practicable alternative time, and

(ii) notify the Branch Manager of your non-attendance and provide a reasonable excuse.

Note: Reasonable excuse may include, but is not limited to, illness, carer obligations, conflicts with another scheduled appointment, employment commitments, or unforeseen transportation issues with no viable alternative means of travel.

• 3.3 Any assessment and treatment under Condition 3 is to be paid for by the Commonwealth.

• 4.1 You must undergo an assessment to determine whether you are suitable for participation in a community based violent extremism disengagement and rehabilitation program, at no cost to you.
• 4.2 You must comply with any reasonable direction from the Branch Manager relating to, and for the purpose of, the completion of that assessment.

1. Condition 5 (information sharing requirements)

• 5.1 You must provide any information in relation to your whereabouts, activities or associations, and any information relating to Conditions 1, 7, 9, 11, 14, 15, 18 and 21, that is reasonably requested (as defined in Interpretation below) by the AFP Superintendent.
• 5.2 You must provide any information in relation to your case management that is reasonably requested by the Branch Manager. This includes, but is not limited to, information relating to Conditions 2, 3 and 4. However, you are not required to provide information about the substance of treatment that you undergo under Condition 3.
• 5.3 You must agree:

(a) to any information being shared between any persons and agencies that are involved in your supervision including but not limited to the Attorney-General's Department, the Australian Federal Police and Victoria Police, and any person who has assessed or treated you under Condition 4 (but not any person referred to in Condition 3).

(b) the following information being shared between persons involved in psychological assessment and/or treatment and any persons or agencies that are involved in your supervision including but not limited to the Attorney-General's Department, the Australian Federal Police, Victoria Police and any person who has assessed or treated you in accordance with Condition 3:

(i) information regarding the dates and duration of sessions you have attended, and the general themes and topics of the sessions;

(ii) information regarding your level of engagement with treatment;

(iii) information regarding any deterioration in your mental state that may impede your ability to interact in supervision, participate in offence-specific treatment or comply with the conditions of this ESO; and

(iv) should the treating psychiatrist or psychologist have concerns for your safety or the safety of others, information in relation to those concerns.

• 5.4 You must not provide false or misleading information when providing the information referred to in Condition 5.1 and 5.2 to the AFP Superintendent or the Branch Manager.

• 6.1 You must not knowingly communicate or associate, or cause another person to communicate or associate on your behalf, with any person who:

(a) to your knowledge is incarcerated in a correctional facility;

(i) an interim or confirmed control order made under Division 104 of the Criminal Code (the Code) contained in the Schedule to the Criminal Code Act 1995 (Cth);

(ii) an interim or extended supervision order made under Division 105A of the Code;

(iii) a supervision order made under the law of a State or Territory; or

(iv) an order of parole, or bail in relation to a serious offence (as defined in Interpretation below);

(c) To your knowledge has been convicted of, or is currently charged with:

(i) an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); or

(ii) a "terrorism offence" within the meaning of section 3(1) of the Crimes Act 1914 (Cth) (as in force from time to time);

(d) To your knowledge is located in Afghanistan, Democratic Republic of Congo, Egypt, Gaza and the West Bank, India, Indonesia, Iran, Iraq, Israel, Jordan, Lebanon, Malaysia, Mozambique, Pakistan, the Philippines, Saudi Arabia, Somalia, Sudan, Syria, Turkey or Yemen, other than any person who is a close family member of yours (as defined in Interpretation below) or a close family member of [redacted]; or

Note: Condition 6.1 is an exemption condition. Refer to Condition 22 (Exemptions) to apply for a temporary exemption to these conditions.

(f) Condition 6.1 (b)(iv) does not apply to Ibrahim Baradi.

1. Condition 7 (employment, sporting, volunteering and education)

• 7.1 You must, within 24 hours, give written notification to the AFP Superintendent of any of the following:

(b) participating in vocational training or education programs; or

(c) joining or affiliating with any group, club or organisation, including any sporting or fitness club, organisation or body, such as any gymnasium or fitness centre.

• 8.1 You must not carry out any of the following activities (including in respect of your work or employment) without the prior written approval of the AFP Superintendent:

(a) forming, joining or affiliating with any internet-based social networking service;

(b) volunteering (except in association with your children's school);

(c) forming any corporation, partnership or incorporated association;

Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 8.2 You must not provide counselling, teaching or mentoring services that relate to any of the below matters:

(a) carrying out, authorising or permitting violence;

(b) activities of any terrorist organisation (as defined in Interpretation below);

(c) the ideology of or any material published, produced or endorsed by any terrorist organisation;

(d) use of weapons, firearms, ammunitions or explosives;

(e) Any of the matters listed at Condition 12.3;

(f) Adherence to any fatwa, decree, ruling or statement of the following persons:

(i) Sheikh Abu Mohammad AL-ADNANI AL-SHAMI

(ii) Ayman al-Zawahiri;

(iii) Osama bin Laden;

(iv) Abu Muhammad al Maqdisi;

(v) Abu Bakr Al-Baghdadi;

(vi) Abu Qatada al-Filistini;

(vii) Said Mansour;

(viii) Abu Ibrahim al-Hahimi al-Qurashi, aka Amir Mohammed Abdul Rahman al-Mawli al-Salbi;

(ix) Anwar al-Awlaki;

(x) Ibn Taymiyya;

(xi) Sayyid Qutb;

(xii) Hassan Al Banna; and

(xiii) Ahmad al Hazimi.

Note: Condition 8.2 is an exemption condition. Refer to Condition 22 (Exemptions) to apply for a temporary exemption to this condition.

• 9.1 You must notify the AFP Superintendent within 24 hours if you:

(a) transfer money or money's worth, including cryptocurrency, to another person, organisation, association or entity, however described of an amount equal to or exceeding the value of $500, whether in one or multiple transactions within any 24-hour period (but see Condition 9.3 below);

(b) have received money or money's worth, including cryptocurrency, from another person, organisation, association or entity, however described, of an amount equal to or exceeding the value of $500, whether in one transaction or multiple transactions within any 24-hour period, and provide a receipt of the payment thereafter (but see Condition 9.4 below); or

(c) cause or instruct any other person to undertake the activities outlined in 9.1(a) or 9.1(b) on your behalf.

Note: Transfer money or money's worth includes, but is not limited to, providing money in person, by way of electronic transfer, by way of a transfer of an interest in shares, property or assets and the provision of cheques or money orders of any kind.

• 9.2 You must not knowingly collect money or money's worth, or cause or instruct any other person to do so on your behalf, from any person who falls within Condition 6.1.
• 9.3 Condition 9.1(a) does not apply to the transfer of funds by you for the payment of invoices relating to your own, or your close family members', reasonable personal expenses in the nature of household goods or services or utilities, medical expenses, transport, children's school fees, insurance, housing and the like.
• 9.4 Condition 9.1(b) does not apply to any:

(a) funds received from an Australian Government or State Government department or agency; or

(b) payment of salary or wages received from your employer in respect of employment undertaken in accordance with Condition 7.

Note: Condition 9.2 is an exemption condition. Refer to Condition 23 (Exemptions) to apply for a temporary exemption to this condition.

(a) Inside, or in the grounds of, any prison or correctional facility, unless you are incarcerated or detained there;

(b) At the residence of any person with whom, by reason of Condition 6, you are prohibited from communicating or associating; or

(c) Subject to Condition 10.2, at any premises of any person, organisation, business or entity (not being premises occupied by an Australian police service or a member of an Australian police service, or a place of detention), knowing that firearms or ammunition are, or are likely to be, located at those premises.

• 10.2 Condition 10.1(c) does not apply to any airport at which you are present for the sole purpose of undertaking travel which is approved pursuant to Condition 11.2, or in respect of which notice has been given pursuant to Condition 11.3.

Note: Condition 10.1 is an exemption condition. Refer to Condition 23 (Exemptions) to apply for a temporary exemption to this condition.

• 11.1 You must not apply for any international or interstate travel document without the written approval of the AFP Superintendent. For the purposes of this Condition, a "travel document" includes but is not limited to:

(b) a visa obtained for the purposes of travel outside Australia;

(c) an airline ticket for domestic or international travel; and

(d) any permit required to lawfully leave the State of Victoria or enter any other State or Territory in Australia.

• 11.2 You must not leave Australia without the prior written approval of the AFP Superintendent.

Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 11.3 You must not leave Victoria without giving prior written notification to the AFP Superintendent.

1. Condition 12 (producing, distributing, accessing or possessing prohibited documents)

• 12.1 You must not intentionally carry out any of the following activities (including in respect of any work, volunteering or education), namely:

(a) recording, copying, storing, possessing, collating, editing, producing or distributing documents (including documents in electronic form) or electronic media; > > (b) accessing or viewing documents (including documents in electronic form) or electronic media;

• 12.2 Which relate to or depict in any manner, including by animation or computer generation, the matters listed in Condition 12.3 (the prohibited matters).

Note: Distributing documents (including documents in electronic form) or electronic media includes, but is not limited to, the distribution of documents (including documents in electronic form) or electronic media via an electronic link to that material.

• 12.3 The prohibited matters for the purposes of Condition 12.1 are:

(a) explosives, explosive devices, initiation systems or firing devices;

(n) material that provides instruction, demonstrates, describes, promotes or encourages any of the matters listed above at Condition 12.3 (a) to (m);

(o) propaganda and promotional material relating to any "terrorist organisation"; including the activities of, or associated with, any "terrorist organisation" (as defined in Interpretation below); and

(p) any content from websites created or hosted by a terrorist organisation.

• 12.4 Condition 12.1 does not apply where a prohibited matter is:

(a) published by a "constituent body" of the Australian Press Council;

(b) published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;

(c) broadcast on Australian free to air television;

(f) broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; Binge; ABC iView; 10play, 9Now, 7plus, SBS on Demand, Kayo Sports, Apple TV+, Paramount Plus, Disney+ (or any other streaming service notified to you in writing by the AFP Superintendent);

(g) unless the AFP Superintendent notifies you in writing otherwise in relation to a specific book, material published in a book that you purchase from an Australian retailer of books, provided that you:

(i) notify the AFP Superintendent of the title and author of the book within 24 hours of purchasing the book; and

(ii) include in that notification a reference to any chapters and/or page numbers containing the prohibited matters.

Note: The AFP Superintendent may notify you in writing that a specific book is no longer excepted from the prohibition in 12.1.

(h) contained in the Bible, the Qur'an, the Gita, the Torah, the Guru Granth Sahib and the Tripitaka.

(i) contained in material that is served on you or your legal representatives in any

(ii) any legal proceedings, including in respect of Division 104 or Division 105A of the Code, to which you are party, including any appeal from, or application for leave or special leave to appeal from, such proceedings.

(j) contained in any material provided to you by CISP or Corrections Victoria, or in material approved by CISP or Corrections Victoria;

(k) contained in any material taught at an Australian primary or secondary school; or

(l) depicted in any PlayStation or computer game.

Note: Condition 12 is an exemption condition. Refer to Condition 22,(Exemptions) to apply for a temporary exemption to this condition.

Communication, Internet Use & Electronic Devices

(a) send mail, parcels or any other form of package to any person except by registered or express post, via Australia Post; or > > (b) send mail, parcels or any other form of package under any other name other than your own name.

• 13.2 Condition 13.1 does not prohibit you from ordering, or receiving delivery of, ordinary consumer or household items, including food and groceries.

2. Condition 14 (mobile phone)

(a) access or use any mobile phone other than the mobile phone and SIM card provided to you by the AFP Superintendent (the permitted mobile phone); or > > (b) cause or permit any other person to access or use any mobile phone on your behalf

(c) in the case of an emergency; or

(d) to notify the AFP Superintendent of a fault or damage to the permitted mobile phone.

• 14.2 Your use of the permitted mobile phone is subject to the following conditions:

(a) you must carry at all times the permitted mobile phone.

(b) you must be available to answer any call from the AFP Superintendent or the Branch Manager on the permitted mobile phone, or return such a call that you were unable to answer as soon as reasonably practicable.

(c) you must not tamper with, damage or destroy any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone.

(d) you must not alter, tamper with or change the appearance of the permitted mobile phone.

(e) you must not change, remove, modify or disconnect the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone.

(f) you must present the permitted mobile phone for inspection, repair, service or replacement at any time reasonably requested by the AFP Superintendent.

(g) you must notify the AFP Superintendent as soon as possible if:

(i) you become aware that a permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order; or

(ii) you have used another mobile device (including using another mobile device in an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone).

15. Condition 15 (fixed or landline telephone services and public telephones and other communication devices)

• 15.1 You must not access or use any fixed or landline telephone service, including any public telephone, or facsimile service, other than a service that has been approved in writing by the AFP Superintendent, except in the case of an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone.

Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 15.2 You must notify the AFP Superintendent as soon as possible if you have used a fixed or landline telephone service, including a public telephone, or facsimile service.
• 15.3 You must not access or use any satellite telephone service or UHF/VHF radio.

• 16.1 You must not access or use any internet service, including any wireless (Wi-Fi) network or connection, other than the internet service provided to you by the AFP Superintendent.
  • 16.2 You must not cause or permit another person to access or use any internet service on your behalf (including the permitted internet service), unless the person using or accessing the internet service (including the permitted internet service) is the AFP Superintendent.
  • 16.3 Conditions 16.1 and 16.2 do not prohibit the access to or use of:

(a) an Automated Teller Machine; > > (b) a computer or tablet device (as defined in Interpretation below), connected to an internet service, owned by a business or government agency which is made available for your use to facilitate contact tracing, the ordering or sale of food or consumer products or the provision of a service; or > > (c) a smart TV, which is used by you only for the purposes of watching the services set out in Conditions 12.4.

Note: Condition 16 is an exemption condition. Refer to Condition 22 (Exemption) to apply for a temporary exemption to this condition.

1. Condition 17 (email)
   • 17.1 You must not access or use any electronic mail (email) account other than the Gmail account that has been approved by the AFP Superintendent for you to access or use (the permitted email account).

Note_: Refer to Condition_ 24 (Approval from the AFP Superintendent) for the process for seeking approval.

Note: Condition 17 is an exemption condition. Refer to Condition 22 (Exemption) to apply for a temporary exemption to this condition.

1. Condition 18 (computers, tablets and other devices)
   • 18.1 You must not access or use any computer, tablet or other device that is capable of accessing the internet other than the device that has been provided to you by the AFP Superintendent, or has otherwise been approved in writing for you to access and use by the AFP Superintendent (the permitted computer, tablet or other permitted device), except in the case of an emergency.

Note_: Refer to Condition_ 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 18.2 You must not cause or permit any other person to access or use on your behalf any computer, tablet or any other device (including the permitted computer tablet or other permitted device), except in the case of an emergency.
• 18.3 You must notify the AFP Superintendent if you have, or any other person on your behalf has, used or accessed any computer, tablet or other device in an emergency, as soon as possible after the emergency.
• 18.4 Condition 18.1 does not prohibit access to or the use of:

(a) an Automated Teller Machine;

(b) an EFTPOS terminal;

(c) a computer or tablet device, or smart TV owned by a business or government agency, which is made for your use to facilitate contact tracing, telehealth services, the ordering or sale of food or consumer products or the provision of a service;

(d) a Smart TV, which is used by you only for the purposes of watching the services set out in Condition 12.4;

(e) a gaming device or application (subject to Condition 19.2(e)); or

(f) a computer, tablet or other device used at home and solely used for the purpose of assisting your children with their homework or school related activities, and subject to the device being connected to the internet service provided to you by the AFP Superintendent.

• 18.5 You must not tamper with, damage or destroy any component of the permitted computer, tablet or other device or any equipment necessary for the operation of permitted devices, or direct, cause or permit another person to do any of those things.
• 18.6 You must not alter, tamper with or change the appearance of the permitted computer, tablet or other device.

1. Condition 19 (computer programs and platforms)

• 19.1 You must not use, download, or access applications or computer programs (collectively, platforms), unless:

(a) the platform was installed on your permitted mobile phone, or your permitted computer, tablet or any other permitted device, at the time it is first provided to you; and you use the platform on the permitted mobile phone, permitted computer, tablet or other permitted device; or > > (b) you obtain prior written approval from the AFP Superintendent.

Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 19.2 Other than the platforms referred to in Condition 19.1, you must not access, download or use:

(a) any Voice Over Internet Protocol (VOIP) service;

(b) any internet-based messaging service;

(c) any applications, programs or websites that can be used for communication, including social media services, applications and email services (other than the service permitted by Condition 17.1);

(d) any internet-based messaging service, including any software, mobile application, or hardware;

(e) any gaming applications or software that connects to other users or servers, via the internet or Local Area Network; or

(f) any cloud or remote storage service, removable data storage device (e.g. a USB or SD Card), file sharing service, virtualisation software or encrypted storage service.

Note: For the purposes of condition 19.2(c) applications, programs or websites that can be used for communication include (by way of example), but are not limited to, the following: AIM, Beejive, Discord, Facebook, Facebook Messenger, FaceTime, Fring, Google Duo, Google Hangouts, Google Talk, iCall, ICQ, Instagram, Jajah, KIK, Line 2, Lync 2013, MagicApp, MSN Messenger, Nimbuzz Messenger, Packet8, Signal Private Messenger, Skype, Slack, Snapchat, Talkatone, Telegram, Tik Tok, Truphone, Twitter, Viber, Wechat, WeTalk, WhatsApp, Whistle Phone, Wickr, Yahoo Messenger, YouTube, Zoiper IAX SIP VOIP Softphone.

• 19.3 You must not use any applications, programs, services or software, or any settings or modes of any applications, programs, services or software, that are designed to, or which purport to, disguise or conceal any function or use of the application, program, service or software. This includes, but is not limited to, the use of a private browser or incognito or hidden mode, and the use of a Virtual Private Network.
• 19.4 Conditions 19.2 and 19.3 do not prohibit:

(a) access to or the use of a website which includes an "instant chat" function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service;

(b) access to or the use of any platform, VOIP or website for the purpose of participating in any proceeding in an Australian Court to which you are a party or witness;

(c) ordering ordinary consumer or household items, including food and groceries;

(d) accessing or using telehealth services; or

(e) accessing, using and possessing a USB or hard drive provided by your legal representatives containing material in relation to proceeding S ECI 2024 00807 as well as notes made by you in relation to those materials, where prior written notification of the serial number of the USB or hard drive has been provided to the Branch Manager.

• 20.1 You must not purchase, possess or use any of the following specified articles or substances:

(a) a "firearm" or "cartridge ammunition" within the meaning of s 3(1) of the Firearms Act 1996 (Vic); > > (b) a "prohibited weapon" within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic); > > (c) an article or device, not being a firearm, capable of discharging by any means; > > (d) a knife, in a public place, without reasonable excuse; or > > (e) a digital blueprint for the manufacture of a firearm or prohibited weapon on a 3D printer or electronic milling machine.

• 20.2 You must not obtain, or apply to obtain, any licence to possess or use a weapon.
  • 20.3 You must not use, store or permit the storage of any firearms or ammunition at your place of residence.
  • 20.4 You are prohibited from hunting or trapping any animal or game, or using any weapon in connection with hunting or related activities. This includes spear fishing but does not include fishing with a net or line.

1. Condition 21 (name and identification)
   • 21.1 You must not change your name or use any name other than "Khaled" and "Karl" or "Temssah" (individually or in combination), without the prior written approval of the AFP Superintendent.

Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.

• 21.2 You must not use any electronic account registered in a name other than your own.
• 21.3 If you change the details of any current form of identification or obtain further forms of identification, you must notify the AFP Superintendent.
• 21.4 You must allow the AFP Superintendent to take your photograph and impressions of your fingerprints, and you must attend at times and places specified by the AFP Superintendent for that purpose.

• 22.1 You may request an exemption from the AFP Superintendent from any of Conditions 6.1, 8.2, 9.2, 10.1, 12, 16 and 17 above. To request an exemption, you must submit a written request to the AFP Superintendent which:

(a) identifies the condition in respect of which you seek an exemption; > > (b) explains the extent to which you seek to be exempted from the condition; > > (c) explains your reason(s) for seeking the exemption; and

provide any other information requested by the AFP Superintendent for the purposes of determining whether to approve the exemption.

• 22.2 The AFP Superintendent may grant or refuse an exemption, subject to any reasonable directions specified in writing.
• 22.3 You must comply with all of the reasonable directions specified in writing by the AFP Superintendent. If you do not comply with a reasonable direction in relation to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
• 22.4 You must request an exemption before the material time and date (as defined in Interpretation below). If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.

1. Condition 23 (exemption granted by the AFP without a request from you)
   • 23.1 The AFP Superintendent may grant an exemption to any of Conditions 1-21 above without a request from you. The AFP Superintendent must obtain your consent, if he or she is considering granting an exemption without a request from you.
   • 23.2 The AFP Superintendent may grant an exemption subject to reasonable directions specified in writing provided on reasonable notice to you and to which you consent in writing.
   • 23.3 You must comply with all of the reasonable directions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
2. Condition 24 (approval from the AFP Superintendent)
   • 24.1 You may obtain approval from the AFP Superintendent for the purposes of Conditions 8.1, 11.2, 15.1, 17.1, 18.1, 19.1 and 21.1. To obtain approval you must submit a written request to the AFP Superintendent which identifies the condition in respect of which you seek approval; and provide any information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the request.
   • 24.2 The AFP Superintendent may grant approval subject to conditions specified in writing.
   • 24.3 The AFP Superintendent may revoke approval that has previously been provided.

Section 105A.18A of the Code makes it an offence to contravene the conditions of an extended supervision order.

See also Part 2.4 of the Code, which provides for extensions to criminal responsibility where (for example) you attempt to commit an offence, cause or permit any other person to do any of the actions prohibited by these conditions or conspire with other people to commit an offence.

Account credentials means information that a user of a device or on online account requires in order to access or operate the device or account, and includes, for example, each of the following:

1. A username;
2. A password;
3. A Personal Identification Number (PIN);
4. A security question or answer;
5. A biometric form of identification.

AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism and Special Investigations Command, and whose contact details are provided to you at the time of this Order coming into force, and any other member of the Australian Federal Police acting under the direction of or on behalf of the AFP Superintendent.

Branch Manager means an employee of the Attorney-General's Department performing the duties of Assistant Secretary with responsibility for high risk terrorist offender casework, and whose contact details are provided to you at the time of this Order coming into force, and any other employee of the Attorney-General's Department acting under the direction of or on behalf of the Branch Manager.

Close family member means a close family member within the meaning of s 102.1(1) of the Code (as in force from time to time).

Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a close family member, or threatens to destroy or damage the specified premises.

1. In relation to a condition that requires you to do an act - the time and date that you are required to do that act;
2. In relation to a condition to that prohibits you from doing an act - the time and date that you propose to do that act;
3. In relation to a condition that requires to you be present at an area or place - the time and date that you are required to be present at that area or place; or
4. In relation to a condition that prohibits you from being present at an area or place - the time and date that you propose to be present at that area or place.

Reasonable direction (and reasonably directed) has the meaning given in s 105A.7B(4) of the Code, being a direction that is reasonable in all the circumstances to give effect to:

1. The condition; or
2. The object of Division 105A of the Criminal Code.

Serious offence means an offence against a law of a State or Territory of Australia or the Commonwealth of Australia that is punishable by a maximum penalty of 2 or more years of imprisonment

Tablet device includes but is not limited to an iPad or a Samsung Galaxy Tab.

Terrorist organisation means a terrorist organisation within the meaning of s 102.1(1) of the Code (as in force from time to time).

[1] The offence to which Mr Temssah pleaded guilty was particularised as follows: between about the 3rd day of June 2019 and the 20th day of June 2019 at Melbourne and elsewhere in Victoria, KHALED TEMSSAH, while being an Australian citizen, did intentionally engage in conduct, intending that the conduct was preparatory to the commission of an offence against section 119.4(1) of the Criminal Code (Cth), being the entry into a foreign country, namely India, with the intention of engaging in hostile activity in a foreign country.

[2] See R v Temssah [2021] VCC 1353 ('R v Temssah').

[3] See the reasons for judgment: Attorney-General v Temssah [2024] VSC 172 (the ISO reasons). The conditions imposed on Mr Temssah by the ISO are annexed to the ISO reasons.

[5] The ISO was varied to allow Mr Temssah to have access to certain materials.

[6] In redacted form consistent with the order of the Court.

[7] This summary of Mr Temssah's offending is taken from [49]-[56] of the ISO reasons, augmented by the contents of statement of agreed facts relied upon by the parties in the hearing of the application for an ESO.

[8] R v Temssah (n 2), [49]-[60], citations omitted.

[10] Mr Temssah applied for release on parole in December 2022; the request was refused on 14 March 2023.

[11] Benbrika v A-G (Cth) [2024] VSC 265, [23] ('Benbrika v A-G').

[17] The preconditions for a valid application prescribed by s 105A.5 were met in that: the Attorney-General, as the AFP Minister, had made the application not more than 12 months before the end of Mr Temssah's sentence of imprisonment; the application included the material and contents specified in s 105A.5(3); and Mr Temssah is a 'terrorist offender' within the meaning of s 105A.3(1).

[19] See s 105A.13(1) of the Code which applies to a 'post-sentence order proceeding', defined in s 105A.2 to include a proceeding under subdivision C relating to the making of post-sentence orders such as an ESO.

[21] Minister for Home Affairs v Benbrika (First review) [2022] VSC 169, [54].

[24] [2013] VSCA 213; (2013) 41 VR 359. The legislation under consideration in Nigro was the Serious Sex

Offenders (Detention and Supervision) Act 2009 (Vic).

[27] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 at [47] (Kiefel CJ, Bell, Keane and Steward JJ).

[29] [2018] NSWCA 328.

[31] The legislation under consideration in Nigro was the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

[33] [2022] VSC 507.

[38] From 9 April 2024 Commander Read commenced as Acting Assistant Commissioner of Counter Terrorism and Special Investigations.

[39] Comprised of members of the AFP, those from relevant State or Territory policing bodies and members from other security and law enforcement agencies including ASIO.

[40] On 29 June 2014, Islamic State declared itself a Caliphate with leader Abu Bakr Al-Baghdadi as its Caliph.

[41] See [77(g)] below.

[42] R v Ali [2020] VSC 316 [173], [201] ('R v Ali'). Although an appeal on sentence was successful, the Court of Appeal appeared to endorse the above observations, referring to the defendant's public renunciation of ISIS as an important mitigating factor: see Director of Public Prosecutions (Cth) v Ali [2020] VSCA 330 at [89], [90], [107].

[43] R v Ali (n 42), [171], approving observations of Beale J in R v Abbas, Chaarani & Mohamed [2019] VSC 775.

[44] In relation to the Serious Sex Offenders (Detention and Supervision) Act 2009. See Minister for Home Affairs v Benbrika (n 21), [272].

[45] Nigro (n 24), [124], citations omitted.

[47] The ISO reasons (n 3), [70] - [71].

[48] The report was annexed to Dr Davis's affidavit dated 22 April 2024. Dr Davis swore a further affidavit dated 26 April 2024 in which he exhibited various documents to which he referred in his report dated 22 April 2024.

[49] Franca Cortoni et al, 'The recidivism rates of female sexual offenders are low: A meta-analysis' (2010) 22(4) _Sexual Abuse: A Journal of Research and Treatmen_t 387, 398.

[50] Emily Corner and Helen Taylor, 'Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments' (Centre for Social Research and Methods, The Australian National University, 2020) (the Corner report).

[52] The submissions filed on behalf of Mr Temssah also addressed other matters which were particular to the facts and circumstances of Benbrika v A-G (n 11) and which are of limited relevance to this case.

[63] See in [70] above.

[64] As described in [63]-[64] above.

1. [66] In the sense that it is 'an event for which the base rate of occurrence is too low for the risk of the event to be meaningfully interpreted at a group level with actuarial or structured professional judgement risk assessment tools'.

[67] For example, Mr Temssah's [redacted] and his acceptance since his release of a caregiving role at home with his family.

[68] See the discussion in [130]-[154] below.

[69] See The Queen v Ali Khalif Shire Ali [2020] VSC 316, [171].

[74] See above at [Error! Reference source not found.].

[75] On 22 March 2022, Mr Temssah first applied for release on parole. His request was refused on 14 March 2023 and again on 12 March 2024.

[76] Principally affidavits of Jennifer Hosking sworn 2 May 2024 and 3 May 2024. The names of the convicted terrorist offenders with whom Mr Temssah corresponded in prison have been anonymised and are referred to by numbers.

[81] Section 105A.7A(1)(c) of the Code.

[82] As stated by John Dixon J in Attorney-General v Hadashah Sa'adat Khan (No 2) [2022] VSC 687, [41] ('Attorney-General v Khan (No 2)'), citing Thomas v Mowbray (2007) 233 CLR 307, 330-1 [19], 332 [22] (Gleeson CJ).

[84] See in a different statutory context Kiefel CJ in Stanley v Director of Public Prosecutions (DPP) (NSW) (2023) 407 ALR 222, [41].

[85] See Attorney-General v Khan (No 2) (n 82) at [41], referencing Vella v Commissioner of Police (NSW) [2019] HCA 38; 269 CLR 219 at [51].

[87] The ISO reasons (n 3), [85], citations omitted.

[88] The ISO reasons (n 3), [88]-[91]; New South Wales v BP (No 2) [2019] NSWSC 806 ('New South Wales v BP (No 2)').

[89] Plaintiff's Submissions on Application for Extended Supervision Order (26 April 2024), [90] - [115].

[90] New South Wales v BP (No 2) (n 88).

[91] Attorney-General v Khan (No 2) (n 82), [47].

[92] Section 105A.7A(4)(d) of the Code.