Booth v Biber

NICHOLAS J: 1 Before me is an application for an interim control order under the provisions of Div 104 of the schedule to the Criminal Code Act 1995 (Cth) ("the Code"). The applicant and the respondent were both represented by counsel who have agreed upon the terms of an interim control order. Any such order will operate for a period up to a maximum of 12 months unless it is varied, declared void or revoked in accordance with s 104.5 of the Code. 2 Even though the parties have agreed on the terms of the interim control order, and no grounds have been raised by the respondent in opposition to the making of such an order at this time, it is necessary under the relevant provisions of the Code that the Court satisfy itself in relation to certain matters. These reasons for judgment explain why I am satisfied that the interim control order in the form agreed by the parties should be made. 3 The objects of Div 104 are set out in s 104.1. These allow obligations, prohibitions and restrictions to be imposed on a person by a control order for various purposes, relevantly, protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act, and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 4 Section 104.2 provides that a senior AFP member must not request an interim control order without the consent of the AFP Minister and may only seek such consent if the AFP member (inter alia) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country. 5 Section 104.3 specifies the information and material that must be provided to an issuing court in support of a request for an interim control order. This information includes an explanation as to why each of the proposed obligations, prohibitions or restrictions should be imposed on the person and, if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person, a statement of those facts. The material to be provided to the issuing court must also include a copy of the AFP Minister's consent. 6 Section 104.4 relevantly provides: (1) The issuing court may make an order under this section in relation to the person, but only if: (a) the senior AFP member has requested it in accordance with section 104.3; and (b) the court has received and considered such further information (if any) as the court requires; and (c) the court is satisfied on the balance of probabilities: (i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or (iii) that the person has engaged in a hostile activity in a foreign country; or (iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or (v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or (vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or (vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and (d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of: (i) protecting the public from a terrorist act; or (ii) preventing the provision of support for or the facilitation of a terrorist act; or (iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. (2) For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account: (a) as a paramount consideration in all cases - the objects of this Division (see section 104.1); and (b) as a primary consideration in the case where the person is 14 to 17 years of age - the best interests of the person; and (c) as an additional consideration in all cases - the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). (2A) In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following: (a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person; (b) the physical and mental health of the person; (c) the benefit to the person of having a meaningful relationship with his or her family and friends; (d) the right of the person to receive an education; (e) the right of the person to practise his or her religion; (f) any other matter the court considers relevant. (3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction. … 7 The expression" engaged in a hostile activity" is defined in s 117.1 as follows: engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved): (a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country); (b) the engagement, by that or any other person, in action that: (i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and (ii) if engaged in in Australia, would constitute a serious offence; (c) intimidating the public or a section of the public of that or any other foreign country; (d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country); (e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country). 8 Section 104.5 imposes various requirements in relation to the terms of an interim control order. These include that the order state that the issuing court is satisfied that the requirements referred to in s 104.4(1)(c) and (d) are met and the day on which the person may attend the court for the court to (inter alia) confirm or revoke the interim control order ("the confirmation hearing"). That date cannot be more than 12 months after the date on which the interim control order is made and, in any event, must be as soon as practicable. 9 The applicant, Sandra Booth, is a Commander of the AFP, and a "senior AFP member" for the purposes of the Code swore an affidavit in support of the application. She is a highly experienced officer who is responsible for the AFP's High Risk Terrorist Offender teams operating across various states. She has extensive experience and expertise in policing and, in particular, counter-terrorism investigations. Ms Booth's affidavit contains the material relied upon in support of the application for an interim control order. 10 On 9 February 2018, the respondent pleaded guilty to a charge that, contrary to s 6(1)(a) of the (now repealed) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Foreign Incursions Act"), he did between 1 July 2013 and 9 February 2014 enter a foreign state, namely the Syrian Arab Republic, with the intent to engage in a hostile activity in that foreign state, namely, engaging in armed hostilities. On 27 April 2018 in the Supreme Court of NSW the respondent was convicted of an offence against s 6(1)(a). 11 On the same date the respondent was sentenced to a term of imprisonment of four years and nine months, commencing on 3 November 2016 and expiring on 2 August 2021, with a non-parole period of two years and six months. 12 In early July 2013 the respondent travelled with a small group of like-minded men from Sydney to Turkey and then into Syria. Two members of that group ultimately died while fighting in the Syrian conflict. The evidence shows that the respondent provided support for, and otherwise facilitated, other members of the group engaging in hostile activity in Syria. In particular, the respondent assisted with the purchase of airline tickets for other members of the group and provided information about travel arrangements to them. He also provided other assistance and support to the group as they travelled from Turkey to Syria. Between September and December 2013, the respondent was in communication with an associate in Sydney to whom he provided advice as to the availability and cost of AK47 and M16 assault weapons, and the arrival and activities of foreign fighters in Syria. 13 On 3 December 2013, mobile phones were located and seized by police which contained various images one of which featured nine men, including the respondent, holding assault weapons posing around the rear of a utility vehicle displaying a flag used by insurgent Islamic forces in Syria in 2013. 14 Despite his intentions and his apparent willingness to engage in hostilities, the respondent did not fight and instead returned to Turkey after approximately three and a half months. In Turkey he met up with some of his family members, including his wife who had apparently travelled to Turkey to give birth to his child. He was subsequently apprehended by local authorities and deported to Australia involuntarily. He arrived in Australia on 9 February 2014. It was not until 3 November 2016, the respondent was arrested and charged. He has been in custody since his arrest. Various applications by the respondent to be released on parole were refused by the Commonwealth Attorney-General. The respondent's sentence expires on 2 August 2021. 15 The respondent gave oral evidence at his sentencing hearing including evidence that his intention to travel to Syria grew from news and other reporting relating to the Syrian civil war, and the activities of Syrian President Bashar Al-Assad's army. He said his particular interest stemmed from connections to his ancestors from north-western Syria, and from "seeing images of women and children being pulled out of rubble, being killed, and … some of the videos were very, very horrific and that particularly hit me in the heart because I had a wife and she was pregnant at the time". The respondent said that he wanted to see the end of the Assad regime and that he became "passionate and emotional about it". 16 In addition to the material regarding his activities in Syria, there is a considerable amount of evidence concerning the respondent's activities in Australia following his return. 17 Following his return to Australia the respondent received from his cousin a hyperlink to an uncensored video of the beheading of Canadian businessman John Ridsdel by the terrorist organisation Abu Sayyaf in the Philippines on 25 April 2016. In response the respondent said "lol theyr (sic) amateur beheaders". The respondent also described to another cousin a conversation he had had with another male about "Hijrah" (the movement of Muslims from a land of unbelievers to a land of Islam). During the course of this conversation the respondent expressed his agreement with "d" which is an apparent reference to "dawla" which is an Arabic name for Islamic State. 18 The respondent also accessed the following material over the internet: (a) 7 February 2016: a post titled "Multaqa Ahl al-Hadith" and a post titled "14 Evidences: What makes You a Kafir" describing that the killing of a kafir (non-believer) is permitted, however a person cannot just be deemed a kafir if they appear to be one; (b) 7 February 2016: a post titled "Judging by what is Apparent: A trait of the takfeeri?" describing that a person can be deemed a kafir if apparent; (c) 20 February 2016: a web article titled "The world Includes Only Two Camps - That Of ISIS And That of Its Enemies"; (d) 10 June 2016: an image of Islamic State representative with a microphone, armed Islamic State fighters and four prisoners in cages; (e) 10 June 2016: an image of armed Islamic State fighters standing over two prisoners; (f) 11 June 2016: an image of incomplete Islamic text "The life enjoyed by martyrs"; (g) 12 June 2016: an image depicting armed Islamic State soldiers with two prisoners; (h) 17 June 2016: an image of Islamic State fighters in the process of beheading prisoners; and (i) 17 June 2016: an image of three armed Islamic State fighters standing over three prisoners with heads removed and placed on their back. The male in the middle is holding a head in his hand 19 There is evidence that the respondent continued to associate with people who belonged to online chat groups that openly discussed Islamic State propaganda and that his associates, prior to his arrest, included various individuals who were members of overseas organised crime groups, who had been convicted of various weapons and other offences, or who were the subject of prohibition orders under the Weapons Prohibition Act 1998 (NSW) and under the Firearms Act 1996 (NSW). At least some of these individuals are identified by name in the proposed interim control order. 20 In his evidence at his sentencing hearing, the respondent accepted that, following his return to Australia, he had "admired ISIS … on occasions" because "they were intending to … cause Sharia Law to be imposed in Syria" and that he had "sympathy" for them. He claimed this stemmed from his "emotional association" with Islamic State, which had formed because an associate of his, whom he had "loved … like a brother" had been killed by the Free Syrian Army whilst fighting for Islamic State. He accepted that he had, in a WhatsApp message, "expressed support for Islamic State". 21 The sentencing judge noted that it was difficult to assess prospects of the respondent's rehabilitation particularly in circumstances where she was not satisfied that the respondent felt any remorse or contrition for his offending. She nevertheless concluded that the prospects of his rehabilitation were reasonable particularly having regard to the support provided by his family and his desire to be part of his daughter's life. 22 In determining whether I am satisfied of the matters specified in s 104(4)(c) and (d) of the Code on the balance of probabilities I have had regard to the material contained in the statements of facts relating to why the control order should be made filed by the applicant, some of which I have referred to in preceding paragraphs. Against this I have also had regard to the material contained in the statement of facts relating to why the order should not be made some of which material may suggest that the respondent will not pose a significant risk to the public upon release from prison. 23 The various communications and internet activity in which the respondent engaged after his return to Australia appears to reflect an interest in the killing of "non-believers" (including by beheading) and the activities of Islamic State fighters (including the killing of their prisoners). In evidence given before the sentencing judge the respondent acknowledged that he had an interest in ISIS and other groups that were involved in the Syrian conflict. There is also evidence from which it can be inferred that the respondent was a supporter of ISIS, although this is something he denied in his evidence to the sentencing judge. 24 One matter that I have had regard to is the fact that there has been no evidence given by the respondent himself on the hearing of this application. That is not a criticism of the respondent or his legal representatives because, as was made clear to me, they have decided that the preferable course is to not resist the present application and instead take time to prepare more detailed submissions and evidence that the respondent will rely on at the confirmation hearing which (on the orders jointly proposed by the parties) will take place in several months' time after the respondent has been released. But it does mean that there is no sworn evidence before me from the respondent from which I might conclude that he no longer has any interest in supporting insurgent groups engaged in armed conflict with a foreign government or an extremist religious ideology that countenances the killing of "non-believers". 25 As to the requirements of s 104.4(1), I am satisfied that the respondent has provided support for, or otherwise facilitated, the engagement in a hostile activity in a foreign country, namely, Syria, and that the requirement of s 104.1(c)(vii) is therefore satisfied. 26 I am also satisfied that each of the obligations, prohibitions and restrictions to be imposed on the respondent by the proposed interim control order are reasonably necessary and reasonably appropriate and adapted for the purposes of each of the matters referred to in s 104.1(d)(i), (ii) and (iii). In coming to that position I have taken into account the fact that the terms of the proposed interim control order were the subject of negotiations between the parties' legal representatives that culminated in some agreed changes modifying the proposed restrictions that the applicant sought to have imposed on the respondent's contact with certain individuals (control 11.2) and his freedom of movement more generally (control 1.1). No submission was put to me on the respondent's behalf as to why I should not be satisfied that the obligations, prohibitions and restrictions to be imposed were not necessary or appropriate. 27 It was submitted on behalf of the applicant that the offence for which the respondent was convicted is an "offence" relating to terrorism within the meaning of s 104.1(1)(c)(v). Neither the expression "offence relating to terrorism" nor the word "terrorism" is defined in the Code. For the purposes of determining this application it is not necessary to express a view in relation to that question. However, I note that Snadden J recently expressed the view that a person convicted of a related offence against s 7(1)(e) of the Foreign Incursions Act had been convicted in Australia of an offence relating to terrorism: Booth v Brookman [2021] FCA 767. 28 I will make the interim control order sought by the applicant and fix a confirmation hearing for 27 October 2021. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.