Hardy v State of New South Wales

Hardy v State of New South Wales - [2021] NSWCA 338 - NSWCA 2021 case summary — Zoe

[4]

Statutory scheme

The powers with respect to extended supervision orders are found in Pt 2 of the Terrorism (HRO) Act. The power to make an extended supervision order is conferred by s 20, which provides as follows: 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
The term "eligible offender" used in the chapeau in s 20 is defined in s 7: 7 Eligible offender In this Act, an eligible offender is a person who is: (a) 18 years of age or older, and (b) serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence. It was not in doubt that Mr Hardy satisfied the criteria in s 7.
There was also no dispute that Mr Hardy satisfied the criteria in pars (a) and (b) of s 20. The grounds of appeal challenged the judge's findings that the appellant satisfied par (c) and, further, that the Court should be satisfied to the relevant standard as to the unacceptable risk identified in par (d).
With respect to s 20(c), the State relied upon subpar (iii), namely that Mr Hardy was "a convicted NSW terrorism activity offender". That term is relevantly defined in s 10: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). …
The relevant element relied upon by the State in s 10(1) was par (c)(i). This limb of the definition has three elements, namely (a) making a statement or carrying out an activity, (b) which may be characterised as "advocating support for" a particular form of activity, and (c) the activity must be either a "terrorist act" or "violent extremism". The primary judge held that Mr Hardy satisfied this limb because he had made statements and carried out activities which advocated support for violent extremism. On that approach, it is not necessary to identify what may constitute a "terrorist act", a term which is defined by reference to the definition in Pt 5.3 of the Criminal Code (Cth). [4] Nevertheless, as the appellant submitted, the term "violent extremism" is not defined and must take its meaning from its context, which includes being an alternative to a "terrorist act". Accordingly, it is appropriate to consider at this point the scope of that term. Indeed, it will be directly in play in dealing with the matter as to which the Court must be satisfied under par (d) in s 20, namely the risk of committing a "serious terrorism offence".
The definition of "terrorist act" in Pt 5.3 of the Criminal Code (Cth), s 100.1, is complex. Section 100.1 contains four subsections: the relevant parts of the first three must be considered: 100.1 Definitions (1) In this Part: … terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. … (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. It may be noted subs (3) excludes a defined class of activities (advocacy etc) where there is no intention to cause harm falling within four of the six categories (defined by effects) in subs (2).
It may be accepted that distinguishing terrorism from other forms of violent or disruptive conduct affecting public institutions is by no means straightforward. Similarly, to avoid a definition of terrorism which would infringe the constitutionally protected freedom of political communication is also by no means straightforward. However, the complexity which derives from incorporating definitions from one statute into internal definitions within another statute is unnecessary. Both statutes use chain definitions, where one definition includes a term defined elsewhere, which may in turn include terms defined in a third place. The problem is to ensure that there is coherence with respect to each bifurcated pathway, where the alternative pathways are created by the definition.
In State of New South Wales v Naaman (No 2) [5] this Court discussed the dual intentions found in pars (b) and (c) of the definition of "terrorist act". However, where the definition is incorporated into s 10(1)(c)(i) of the Terrorism (HRO) Act, in relation to advocating support for a terrorist act, the concept of advocacy arises twice and three elements of intention are engaged. That is because in s 100.1(3), where the action constitutes advocacy, there must be an intention to cause one of the harms identified in subs (3) or the action will fall outside the definition.
It is also awkward to treat "advocacy" as a form of "action" for the purposes of the definition of a terrorist act, which involves both actions and threats of action. It will rarely be apt to identify a "threat of advocacy", but equally rare that advocacy will cause serious physical harm, unless it is understood to encompass a range of actions including inciting others to act. [6]
So far as the engagement under s 20(c) is concerned, these difficulties may be put to one side. That is not only because findings of the primary judge focused on the alternative, "violent extremism", but also because the focus of the appellant's case was that at the time of various activities, he could not be found to be advocating support for violent extremism because of a diagnosed transient delusional disorder. It is convenient to turn to ground 1.

[6]

(a) Background events

The primary judge inferred, from the circumstances and nature of his first offence committed on 3 March 2017, that the appellant had made a statement advocating support for violent extremism. The offence arose from the delivery of two envelopes to the office of his local member of the Legislative Assembly. On the outside of each envelope the following appeared: "To The Minister You in TREASON … you will be hung untill you are dead No Mercy, No Prisoners You are scum"
Inside the envelopes was printed material to the effect that the Commonwealth was a corporation made up of corporations controlled by foreign corporations. The views expressed were consistent with those of the so-called Sovereign Citizen Movement ("SCM"), originally an American group which promotes the view that the government is unlawful and immoral and that individuals are entitled to resist the enforcement of its laws.
In May 2017 the police searched the appellant's premises and located prohibited weapons, including two torch batons, a number of knives (some ceremonial) an air gun that could be mistaken for a handgun, and a large volume of written material relating to beliefs promoted by the SCM. Other documents found on the premises included material downloaded from the internet involving blueprints for the manufacture of plastic firearms by use of a 3D printer. He had also obtained a 3D printer.
With respect to the hand-delivered letters to the office of the local member, the appellant was charged with sending a document threatening death or grievous bodily harm, being an offence under s 31(1) of the Crimes Act 1900 (NSW) and carrying a maximum penalty of 10 years' imprisonment. He was also charged with three offences of possessing a prohibited weapon or an unregistered firearm. He was sentenced in the Local Court to an aggregate sentence of 16 months imprisonment, with a non-parole period of 12 months, to date from 19 September 2017.
A further search of his premises was conducted on 3 October 2018, at which time a USB was seized which contained hundreds of files, including written materials expressing anti-government sentiments and a large number of files containing digital blueprints for 3D printing and manufacture of both real and replica firearms. On 20 November 2018 he was arrested and charged with 12 offences relating to the digital blueprints. He was eventually sentenced on a plea of guilty for the firearm offences. On 11 December 2020 he received an 18 months intensive correction order, including 350 hours of community service work, which would have commenced on that day. [7] The offending conduct was his possession of 411 digital blueprints from which 12 different firearms could be produced on a 3D printer.

[7]

(b) First issue - appellant's mental state

The primary argument addressed in the appellant's written submissions relied upon psychiatric evidence that at the date of delivery of the letters to the office of the local member, the appellant suffered from a transient delusional disorder and was therefore incapable of acting with the necessary state of mind required by s 10(1)(c)(i).
As the first step in support of that conclusion, counsel for the appellant took the Court to extracts from the psychiatric evidence, part of which had been before Button J in 2019 when the first extended supervision order was made, and part of which was further evidence obtained for the purposes of the proceedings before Johnson J. There is, however, no need to rehearse that material. Johnson J accepted the continued validity of the inference which had been drawn by Button J, in the following passages: "]233] It is the fact that there was evidence before Button J in 2019 which led his Honour to conclude that 'emotional disturbance or mental illness of some kind had played a role in the bizarre actions' of the Defendant: State of NSW v Mathers (No. 2) at [37] (see [46] above). [234] I am satisfied that the Court should adopt the finding made concerning s 20(c)(iii) as reached by Button J in the 2019 proceedings. By the time of the final hearing when his Honour made the operative finding under s 20(c)(iii), the parties had available to them the reports of Dr Eagle and Dr Seidler, which had raised the existence of a delusional state on the part of the Defendant at the time of the index offence. Button J's finding was made having heard the parties on the evidence which included that evidence. [235] The additional evidence adduced at the present hearing from Dr Bench, Dr Ellis and Dr Lennings merely serves to repeat or emphasise that aspect."
However, those findings did not result in a favourable outcome for the appellant. The judge's reasoning continued: "[236] In any event, I do not consider that the existence of a transient delusional state at the time of the index offence stands in the way of a finding adverse to the Defendant for the purpose of s 20(c)(iii) in this case. [237] Further, I do not consider that the evidence concerning the Defendant's mental state in 2017 stands in the way of a finding that he did, at that time, advocate support for violent extremism and that he intended to do so. To the extent it is necessary, I respond to the issues posed by the Defendant (at [161] above) by expressing my satisfaction that the Defendant was capable of forming the intention required for advocating support for violent extremism and that he intended to achieve this object through the s 31 Crimes Act 1900 (NSW) offence. This conclusion is fortified by reference to the Defendant's conduct over an extended period of time in 2017, including his LinkedIn posts. I have kept in mind, as well, that the Defendant himself has denied, and continues to deny, that he was subject to a delusional state at the time of the s 31 Crimes Act 1900 (NSW) offence. [238] Accordingly, I am satisfied for the purpose of these proceedings, that the Defendant is a 'convicted NSW terrorism activity offender' for the purpose of s 10(1)(c)(i) and s 20(c)(iii) THRO Act."
The appellant's challenge to this reasoning encountered a preliminary difficulty in that his guilt of the s 31 offence was not open to challenge in this proceeding. He submitted, however, that any finding with respect to the intentional element inherent in that offence did not extend to the intentional element of advocating support for violent extremism. It is not necessary to deal with that submission because the case failed at a more fundamental level. A delusion may provide the motivation for a crime; however, it does not necessarily preclude the formation of an intention to commit the crime. Another aspect of the appellant's bizarre behaviour in 2017 was the hanging of plastic around his premises because he believed that there had been an outbreak of fungal spores causing mould which affected his health. The fact that the hanging of plastic was based on a delusion did not entail the conclusion that he did not intend to hang the plastic sheeting. Similarly, if his conduct were properly characterised as advocating support for violent extremism, the fact that such support was based on a delusion did not render his advocacy other than intentional.
Finally, as senior counsel for the State submitted, advocating support required a characterisation of conduct, not an inquiry into the underlying motivation. Support for violent extremism is readily inferred from a threat to commit such violence. Where the threat is made not by way of a private communication but by a statement on the outside of an envelope, to be read potentially by numerous persons other than "the Minister" to whom it was addressed, qualifies as advocacy. The judge was not in error to so characterise the conduct giving rise to the s 31 offence.
The judge did not limit his reasoning to that material. He relied further upon the conduct of the appellant in posting material on the LinkedIn website. Some of that material was summarised in the following passage in the judgment: "[186] In this respect, the Plaintiff relied upon the Defendant's LinkedIn posts which included: (a) a post sharing an article regarding politicians' entitlements, together with comments by the Defendant stating 'Save a dollar - bash A POLITICIAN - they are the scum of this earth', 'Malcolm Turnbull you are a scumbag', and 'Malcolm Turnbull you are NOW required to PROVE that you are a public servant, and NOT working for a Corporation registered in Washington DC called 'Australian Government' that has shareholders, only uneducated braindead human think you are our PM, IGNORANCE IS NO EXCUSE' …; (b) a post stating 'It's true, fluoride is poison, since our government corporation is killing us, I guess that gives us the right to KILL THEM' …. [187] Reliance was placed, as well, upon references in the Defendant's posts to 'treason', on a number of occasions, on the part of the government or particular government figures and references to the Australian Government as a 'corporation', an assertion which the Plaintiff submitted was consistent with the SCM-related material contained in the envelope addressed to Ms Harrison MLA that gave rise to the offence under s 31 Crimes Act 1900 (NSW). [188] It was submitted that these posts made clear that the Defendant held extreme political views regarding the Australian Government's legitimacy and the commission of treason by political figures. The Defendant's posts publicly advocated violence against the government and political figures on the basis of its illegitimacy, treason and the use of fluoride by the 'government corporation'. In doing so, the Plaintiff submitted that he advocated support for violence in furtherance of his extreme political views."
The appellant submitted that there was no clear evidence as to when that material was posted, so that the Court could not be satisfied on the probabilities that the appellant was not then subject to his transient delusional state when posting the material. The answer given by the primary judge was twofold. First, the existence of a transient delusional state was not inconsistent with characterising the posts as advocating support for extremist beliefs and, secondly, there was evidence from two of the psychiatrists summarised by the judge in the following terms: "[350] Each of Dr Ellis and Dr Lennings was aware that the Defendant had deleted certain posts because he had considered that he had 'gone too far' and each of them agreed that this conduct indicated a capacity on the part of the Defendant to distinguish between right and wrong at the time when he deleted the posts (T58)." Whatever the appellant's state of mind when making and then removing posts, he was making decisions about the content of the material he was publishing.
Subject to one further point raised by the appellant, no error was demonstrated in the reasoning of the primary judge with respect to the application of s 20(c) in combination with s 10(1)(c)(i).

[8]

The final matter, which was not dealt with in quite the same terms in the judgment below, involved a submission that - "the undefined term 'violent extremism' does not focus solely on an act or threat of violence. By itself, no act or threat of violence, no matter how graphic, intense or confronting, will amount to violent extremism as that term is understood in the framework of the Act. Instead 'violent extremism' within that framework requires the commission, or threat, of violence alongside a broader ideological intention with terrorist connotations." That conclusion was said to follow from the object of the Act and from the definition of serious terrorism offences in s 4(1) being "inextricably bound up with" the definition of "terrorist act". It required that the undefined term "violent extremism" be read down so that it was subject to the criteria in the definition of "terrorist act", including that the act be done "with the intention of advancing a political, religious or ideological cause", in par (b) of the definition of "terrorist act".
There are two aspects to this submission. On the one hand, it would be erroneous to construe an undefined alternative as covering the same territory as the defined term. The words "or violent extremism" were introduced by amending legislation in 2018, [8] which was apparently intended to broaden the coverage of s 10 and s 20(c). [9] The first justification for the proposed reading would reduce the additional words to mere surplusage and tends to subvert the apparent purpose; it should not be accepted.
Secondly, however, there is support for the submission in the language itself. The concept of "extremism", in its ordinary usage, refers to extreme views, usually of a political, religious or ideological character. It may be accepted that the term "violent extremism" does not refer to any form of violent behaviour, but rather a violent form of an ideology. Whether it extends beyond the scope of the definition of "terrorist act" need not be determined. It is sufficient that even if it does not so extend, the submission does not demonstrate error: the reasoning of the trial judge was directed expressly to the elements of ideological fanaticism revealed by reliance on the SCM material and the unequivocal focus on senior politicians.

[10]

(a) Statutory scheme

Before addressing the submissions in support of these grounds it is convenient to identify two further elements of the statutory scheme. First, the concept of a "serious terrorism offence" in s 20(d) differs from each of the three criteria identified under par (c). A serious terrorism offence is defined as an offence against Pt 5.3 of the Criminal Code (see at [8] above) carrying a penalty of no less than 7 years imprisonment. Therefore, that of which the Supreme Court must be satisfied before making an order is an unacceptable risk of an offence against federal law. No reliance is placed on state offences. There are broadly two categories of terrorism offences under Pt 5.3, namely offences associated with terrorist acts and those associated with terrorist organisations. The most straightforward offence is that provided by s 101.1, namely engaging in a terrorist act. That offence carries a penalty of imprisonment for life. The definition of terrorist act has been discussed above.
Secondly, the submissions in support of ground 2 raised a similar issue to that dealt with in considering ground 1, namely that being susceptible to transient delusional states, the Court had to be satisfied that any risk of commission of a serious terrorism offence did not occur during such a state. Because the focus of s 20(d) is a group of federal offences, that submission required attention to the general principles of criminal responsibility set out in Ch 2 of the Criminal Code.
Chapter 2 of the Criminal Code identifies, with respect to each offence, the existence of "physical elements" and "fault elements" for a physical element of that offence. Physical elements include conduct and the result of conduct or a circumstance in which conduct occurs. Conduct must be "voluntary": s 4.2. It will not be voluntary if it is the result of an "unwilled bodily movement", or impaired consciousness "depriving the person of the will to act": s 4.2(3). There are also circumstances involving external factors, including duress, sudden or extraordinary emergency, self-defence and lawful authority which prevent a person being criminally responsible for his or her willed conduct: Pt 2.3, Div 10.
The Code identifies fault elements as intention, knowledge, recklessness or negligence. With respect to intention, the Code states: 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
Further, s 5.6 provides: 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
Mental impairment is dealt with as a circumstance involving lack of capacity under Pt 2.3, Div 7: 7.3 Mental impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or (c) the person was unable to control the conduct. … (8) In this Code: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. …
With these statutory provisions in mind, it is convenient to address each particular of ground 2.

[11]

(b) Failure to consider "double intention"

The first particular of ground 2 alleged a failure on the part of the trial judge to "properly consider the applicant's mental health and how it might engage with the requisite 'double intention' requirement of serious terrorism offences." [10] There were two elements to this complaint. The first was that the judge did not direct attention to the requirement of a "double intention". The second concerned the failure to consider this requirement in relation to serious terrorism offences.
In relation to the first element, it may be observed that, although there are indeed two elements of intention within the definition of "terrorist act", and assuming that that is the relevant kind of offence under Pt 5.3, the intentions will commonly co-exist. Thus, if an act is done (or threatened) with the intention of coercing or influencing by intimidation a government, it will usually be done with the intention of advancing a political or ideological cause. On the other hand, if an act is done or threatened in order to advance a religious cause, it will usually be done by intimidating the public, or a section of the public, or, influencing, by intimidation, the government. For example, a threat to behead non-believers would be done with the intention of advancing a religious cause (however misguidedly) and with the intention of intimidating a section of the public (non-believers). In the present case, a threat made to a politician with the intention of advancing a political or ideological cause will inherently be made with the intention of coercing or influencing by intimidation the government. Thus, although pars (b) and (c) in the definition of terrorist act involve separate intentions, one being purposive and the other relating to the victim or recipient of the act or threat, there may be no difference in the evidential basis for each, nor a need for separate consideration.
In relation to the second element, to the extent that the appellant sought to rely on his susceptibility to delusional states as a response to a prediction of future risk of serious terrorism offences, he needed to address that element by reference to the general principles set out in the Criminal Code, which must be applied to such offending. As noted above, one set of relevant provisions is s 7.3(1), (7) and (8). The submissions did not engage with s 7.3(1). Further, the fact that delusions of the kind suffered by the appellant did not, on the evidence, deprive him of the relevant capacity to form an intention to act has already been addressed.
There was one further articulation of the appellant's submission which should be addressed, namely reliance on the opinions of the court-appointed experts that, "one of the applicant's primary risk factors is a 'decompensation' of his mental health." [11] Assuming that the submission accurately reflected the medical evidence, the purpose of the submission was not to say that an order which might prevent "decompensation" would not be appropriate, but, apparently, to suggest that violent conduct resulting from decompensation would not be intentional in the relevant respects. The evidence did not support that form of the submission.
Turning to the manner in which the application of s 20(d) was dealt with by the primary judge, the appellant's submissions extracted a single paragraph from the judgment as evidence of failure to appreciate or apply the correct legal test. Thus, the judge stated: "[400] Sixteenthly, I do not consider that the Defendant is assisted by the decision in State of NSW v Dickson at [76]-[77]. I am satisfied that the Defendant had the relevant intention to threaten acts of violence in 2017 and that there is an unacceptable risk that such an intention will recur in the absence of an ESO. The suggestion that the Defendant may have been subject to a transient delusional state does not stand in the way of this finding."
There are a number of flaws in this submission. First, noting the first word of the paragraph, it is apparent that this is the sixteenth in a set of steps by which the primary judge set out his reasoning. It would be wrong to assume that it was the only step or that it was a comprehensive statement of the judge's reasoning.
Secondly, the first sentence reveals that the judge was rejecting a submission that he would be assisted by another judgment of the Court, namely State of New South Wales v Dickson (Final). [12] That statement contained no error. Although the appellant also relied on Dickson in this Court, all that the case provided was an illustration of factual circumstances in which a judge dealing with a different offender was not satisfied as to the statutory preconditions, and therefore did not make an order. The primary judge was correct to reject the case as not providing relevant assistance.
Thirdly, if, which was not entirely clear, reliance was placed upon the use of the term "intention" in the singular, when there were two relevant intentions, the point is without substance. What the appellant needed to demonstrate was that the judge did not realise there were two separate intentions in play. As already explained, there are a number of reasons why that submission should not be accepted. One is that, in the context of this case, the overlap of purpose and object of threat demonstrated the relevant dual intention. A second reason is that there was extensive discussion of the evidence relating to the appellant's political ideology, at least inspired by the Sovereign Citizen Movement, and of the evidence relating to his advocating support for violent extremism. There was no doubt that the judge was satisfied through an extensively and comprehensively reasoned judgment as to both elements of the relevant intention (and it is better described in the circumstances of this case as a single intention having two elements).
A third reason is that the primary judge expressly referred to the "double intention requirement" at [207] in setting out the appellant's submissions. A fourth reason is that the judge expressly agreed with the analysis provided by Button J in the earlier judgment approving the first extended supervision order for the appellant. In the reasoning of Button J, quoted by the primary judge at [46] was the following paragraph [13] dealing with the sending of the letter to the local member: "[36] In other words, although in my opinion not in itself a terrorist act as defined, the fact that it was an act that spoke of fatal violence to be inflicted upon a serving politician for an asserted political crime is highly significant in my current assessment of whether the defendant may engage in the future in an act of political violence as defined in the Criminal Code." An appreciation of the relevant elements of the definition of a terrorist act is found in this passage.
Finally with respect to this matter, it is clear from the submissions made below and the reasoning of the primary judge that the statutory definition of a terrorist act was not in contention: the elements were assumed and the focus of dispute was whether the evidence revealed a sufficient factual basis to satisfy the judge to the requisite standard that there was an unacceptable risk of the appellant committing a serious terrorism act in the future. Thus, before setting out in sixteen steps the reasoning underlying his assessment of risk, the judge stated: "[382] I have undertaken the risk assessment process in accordance with ss 20(d), 21 and 25 THRO Act. I will not repeat at this point in the judgment the evidence which is to be considered under the heading contained in s 25(3) THRO Act. This material has been summarised in the Plaintiff's written submissions (see [257]-[284] above) and I accept that analysis with respect to this material."
Further, in the paragraphs immediately following those adverted to in this passage, the judge had set out the following summary of the State's submission: "[286] It was submitted for the Plaintiff that these matters demonstrated that there is a real risk that the Defendant's ideological beliefs may intensify and interact with a sense of personal grievance such that he: (a) carries out an action or may make a threat with the requisite intention in s 100.1 Criminal Code (Cth), namely to advance an (anti-government SCM aligned) ideological cause, coercing or influencing by intimidation the government or intimidating the public or a section of it, or causing serious physical harm to a person, causing a person's death or endangering the life of a person; or (b) commits some other serious terrorism offence such as providing or receiving training connected with terrorist acts (s 101.2), possessing things connected with terrorist acts (s 101.4), collecting or making documents likely to facilitate terrorist acts (s 101.5) or doing acts in preparation for, or planning, a terrorist act (s 101.6)."
Nor was this Court taken to any submission made to the primary judge to the effect that one of paragraphs (b) and (c) of the definition of terrorist act might be satisfied, but the other was not. There is no substance in this particular of ground 2.

[12]

Particular (b) referred to the rejection of a question put by counsel for the appellant to Dr Andrew Ellis, being the court-appointed psychiatrist who examined the appellant in 2021. The submission did not suggest that any prejudice flowed from the rejection of the question, but rather that the rejection "was in error and reflects his Honour's misconception of the requisite double intention requirement".
The relevant question by counsel for the appellant of Dr Ellis and the judge's response followed a preceding answer: [14] "WITNESS ELLIS: I think that, if he were to relapse to a delusional state, then there is, it's difficult to quantify, but there is a likelihood that he might revert to the previous behaviours and that he might incorporate Australian politicians into persecutory delusions and then seek to act on those delusions in a similar manner. O'DONNELL: If that occurred, would he, in that state, have the capacity, in your opinion - I appreciate this is predictive - to form that double intention that I took you to before, with respect to a terrorist act? EMMETT [for the State]: I do object to that … (not transcribable). HIS HONOUR: How can the doctor answer that question, Mr O'Donnell? This is a process of prediction based upon a hypothesis where the elements are not explained and it can only be answered meaningfully and in the probative way with more information about the future. I reject that question."
There was no substance in the proposition that the rejection of the question was erroneous, nor that the judge had some misconception as to the nature of the intention required for a terrorist act. If he had had such a misconception, it would no doubt have been articulated at a time when the "double intention" to which Mr O'Donnell referred was first explained to the witness. That did not occur. More significantly, the judge's concern as to the value of the questioning had been raised earlier when Mr O'Donnell questioned whether the appellant "met the criteria for mental impairment defence", which elicited the following response and rebuke: [15] "WITNESS ELLIS: Well, yes, I think he could have if he had chosen to advance that defence. I think it would be something that a Court could consider. HIS HONOUR: Let me stop the proceedings now. Mr O'Donnell. One, there is a live issue as to whether this approach is permissible in a proceeding of this sort; two, if it is permissible, these are matters which the Court will consider; three, the opinions expressed, which have not been objected to, I will have regard to to the extent that it is necessary in considering this; and four, a question for Dr Ellis. Is there a difficulty with some of this because, as I understand it, Mr Hardy does not accept he had a mental illness at the time, therefore, some of the assumptions you're making as to facts may not be supported by his direct account. Am I wrong? O'DONNELL: I should be very clear your Honour. I'm not - HIS HONOUR: No, I've just asked that question for Dr Ellis, Mr O'Donnell, not you. Dr Ellis, could you answer my question please? WITNESS ELLIS: Yes, I don't, I don't think Mr Hardy [sees] himself as having suffered a delusion at that time."
Shortly thereafter, Mr O'Donnell explained the two intentional elements involved in the definition of "terrorist act". He then asked the following question: [16] "O'DONNELL: Bearing in mind that double intention, is there any evidence you wish to give in respect of what you've said so far in expressing opinions about that topic of delusions - HIS HONOUR: … I should indicate this; is this question directed to the future or the past, Mr O'Donnell? O'DONNELL: It's directed to the future. I'll go about it in a different way so - HIS HONOUR: I think you should and I propose to become more interventionist. This is not a royal commission, nor is it a general inquiry. … But I propose to control this aspect and confine it, even though Mr Emmett has not [been] objecting. Because it is not an open-ended inquiry. It is a focused inquiry and if you are asking Dr Ellis to express an opinion by reference to the definition of terrorist act or serious terrorist offence with respect to the future, then I think you have to make it clear how delusions fit into that. As I understand it, your client doesn't accept he's experienced delusions, am I right?"
It is tolerably clear from these exchanges that far from rejecting the legal definitions of terrorist act and serious terrorism offence, the judge was conscious of them but was not persuaded that the somewhat abstract questioning of a psychiatrist, based on the definitions, was of assistance. Read in their full context, it was quite wrong to suggest that the intervention relied upon indicated any misconception as to the law, or as to the function being undertaken by the judge.

[13]

(d) Failing to act on opinions of court-appointed experts

The two experts appointed for the purposes of the inquiry in 2021 were Dr Andrew Ellis, forensic psychiatrist, and Dr Christopher Lennings, a clinical psychologist. The judge had available to him their written reports and their concurrent oral evidence. The evidence was extensively recorded by the primary judge in his judgment. The passage to which the appellant took objection was found within a lengthy paragraph in the judge's summary of his reasoning, which should be set out in full: "[398] Fourteenthly, I have had regard to opinions expressed by psychiatrists and psychologists who have, over a period of years, assessed the Defendant. In considering the opinion of Ms Kocak, I have kept in mind that her evidence has not been subject to cross-examination. However, Ms Kocak has reported on the Defendant on a number of occasions so that she has considerable familiarity with his case. There is other recent material which supports her opinion, including the THRO Psychology notes and PRAXIS Psychology notes. I do not place great weight on the opinion of Ms Howard who did not recommend a further ESO. Ms Howard had no particular expertise to express an opinion for the purpose of the THRO Act. I have attached considerable weight to the opinions of Dr Ellis and Dr Lennings. Each of the court-appointed experts has made clear that the ultimate assessment of risk is for the Court. Each of them has set out helpfully factors which point in favour of, or against, the making of an ESO and I have had regard to their opinions in reaching a conclusion. In my view, there are significant concerns with respect to the credibility and reliability of the Defendant's statements made to those who have interviewed him, including Dr Bench, Dr Ellis and Dr Lennings. As a result, I am not prepared to act on the opinions of Dr Ellis and Dr Lennings which involved acceptance of the Defendant's account." The passage repeated by the appellant in his submissions commenced, "I have attached considerable weight to the opinions of Dr Ellis and Dr Lennings."
The fact that the judge commenced with the first sentence set out above, raises a question as to the nature of the appellant's objection to part of that paragraph. The objection, however, was not to the evidence of Dr Ellis or Dr Lennings, or their conclusions (which disfavoured the imposition of a further extended supervision order), but to the fact that their opinions were not adopted because of their reliance on the appellant's own statements. The appellant's submission was that both experts "received a vast volume of material and both their reports made clear that their opinions are based on a combination of all these sources". [17] It was therefore wrong, it was submitted, for the judge to discount their opinions because of doubt attaching to one element, namely the accounts given by the appellant. Further, that was said to be so because "the Act is structured to give centrality to the views of court-appointed experts."
Commencing with the last point, it is true that the Act requires that an application for an order be supported by at least one report prepared by a psychiatrist, psychologist or other relevant expert that "assesses the likelihood of the eligible offender committing a serious terrorism offence": s 23(3)(b). The Act also provides for a preliminary hearing which may result in the appointment of two experts, psychiatrists or psychologists or one of each, to conduct separate psychiatric and psychological examinations. Their reports are to be furnished to the Court: s 24(5). In determining whether or not to make an extended supervision order, the Court is obliged to have regard to, amongst other things, those reports: s 25(3)(a). However, it is not correct to say that the judge must give centrality, or primacy or any other particular weight, to those reports. Nor was the rejection of their opinions as to the proper outcome of the application "indicative of error on the part of the Johnson J on the fundamental question ie was the precondition under s 20(d) met?" [18]
The rejection of Dr Ellis and Dr Lennings' final opinions was not unreasoned. Their evidence was comprehensively addressed at [314]-[366]. Unsurprisingly, their evidence was not without nuance. The judge noted that each of them had acknowledged the need to consider the possibility that the appellant had been telling them "what he thought each of them wanted to hear": at [355], referring to passages in the transcript of their oral testimony. [19] Further, counsel for the appellant extracted the following answer from Dr Ellis, noted by the trial judge: "[366] Shortly before the conclusion of the evidence of Dr Ellis and Dr Lennings, Mr O'Donnell SC asked Dr Ellis the following question (T128): 'O'DONNELL: Is future offending on the part of the defendant, in your opinion, Dr Ellis, predicated on a relapse on his part into a delusional state? WITNESS ELLIS: I think that, if he were to relapse to a delusional state, then there is, it's difficult to quantify, but there is a likelihood that he might revert to the previous behaviours and that he might incorporate Australian politicians into persecutory delusions and then seek to act on those delusions in a similar manner.'"
Further references in the judgment should be noted. In commencing his reasons in relation to his state of satisfaction as to the level of unacceptable risk, the judge stated: "[367] I have set out, in some detail, submissions made by the parties concerning application of the unacceptable risk test in s 20(d), including submissions made concerning factors under s 25(3) THRO Act. [368] The present task for the Court is to determine whether it is satisfied, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an ESO. [369] This question must be answered by reference to the totality of the evidence adduced at the final hearing. This evidence includes voluminous documentary evidence together with oral evidence, most significantly from Dr Ellis and Dr Lennings."
This analysis demonstrates that the primary judge adopted the correct approach to the evidence of the experts: it would have been incorrect for the judge to have simply given effect to their opinions as to whether an extended supervision order was required, desired, permissible or inappropriate. There was no error in the manner in which the judge dealt with their evidence.

[14]

(e) Appellant's failure to give evidence

As the appellant correctly noted, the primary judge referred on several occasions to the applicant's failure to give evidence. The submissions identified two errors, namely, first, that the judge "inadvertently reversed the onus of proof" and, secondly, that he gave the defendant's evidence a "central role" despite the fact that there was no mandatory consideration to consider such evidence and it was merely evidence which may be taken into account.
Consideration of what the judge actually said in this respect reveals the absence of merit in this ground. Each of the following passages, it may be added, reflected a difficulty which had troubled the judge throughout the hearing and had been raised in exchanges with counsel, so there can be no suggestion that either party was taken by surprise by the reasoning.
There are basically two passages in issue, and they must be set out in full to understand the judge's reasoning. The first passage is as follows: "[243] As the submissions make clear, the determination of the present application involves an assessment of aspects of the Defendant's behaviour, beliefs and other thought processes not just in 2017, but at the present time. What the Defendant has said recently in interviews and assessments concerning his past conduct and beliefs is important to the resolution of this application. The task for the Court under s 20(d) is to make an assessment concerning the Defendant for the future, but with his present thoughts and beliefs being a most important factor to assess in undertaking the risk assessment process required under the THRO Act. [244] In circumstances where the Defendant has not given evidence himself in these proceedings, the Court must do the best it can, working off the accounts given by the Defendant to others as contained in reports and in the evidence of witnesses who testified at the final hearing. [245] The Court has not been able to make an assessment of the Defendant directly. In the context of sentencing, it has been said that assessment of the genuineness and value of remorse is likely to be better informed in circumstances in which it is expressed by an offender directly (that is, face-to-face by way of evidence), as remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction: Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39]. [246] In making this observation, I am not seeking to equate an assessment of remorse in sentencing proceedings with the task to be undertaken by the Court at a hearing under the THRO Act. It is the Plaintiff which bears the onus of proof with respect to the elements contained in s 20 THRO Act. The Defendant does not bear any onus of proof on the application. Nor should any inference be drawn adverse to the Defendant because he has not given evidence. [247] However, in circumstances where the Defendant has given varying accounts over the years, and where a number of health professionals have noted that there is an issue of credibility to be considered with respect to him, the absence of the opportunity for the Court to undertake its own assessment of the Defendant bears upon the outcome of the application."
Although the passages relied upon by the appellant were limited to [244] and [247], even the above exposition is not complete. For example, the judge also stated: "[252] Further, it might be said that the Defendant's continuing vigorous challenge to what was clearly established guilt may be indicative of a lack of insight into his offending and be relevant as well to an assessment of the Defendant's present reliability, and what weight can be given to his statements concerning his present beliefs given what he has said and done in the past. [253] This is an aspect of significance to the determination of this application where the safety of the community must be the paramount consideration in determining whether or not to make an ESO: s 25(2) THRO Act."
The second passage came later in the judge's reasons in setting out his conclusions with respect to the assessment of unacceptable risk. A number of observations were set out at [367]-[383], before identifying the sixteen step summary which has been discussed above. Relevantly for present purposes, the judge stated: "[372] I have kept in mind that the Defendant has denied any sinister purpose in downloading the firearm blueprints and possessing a 3D printer. At the sentencing hearing for those matters, statements from persons were tendered on behalf of the Defendant which provided some support for this account. However, there remain disturbing features of this account, and its plausibility, given the range of conduct carried out by the Defendant over many months, including firearms, prohibited weapons, the threatening letter directed to a politician, the Defendant's support for the SCM and his repeated expression of extremist and violent views in LinkedIn posts. It is necessary to consider the whole of the evidence and not engage in a piecemeal examination of it (see [149] above). The Defendant has not given evidence at the final hearing (see [242]-[254] above). He is not required to do so, and he carries no onus, but I have considerable reservations concerning the plausibility of the account given by him to others for possessing the firearm blueprints. [373] It is the case that the various accounts given by the Defendant are concerning and at times inconsistent, including his denial of the commission of the s 31 Crimes Act 1900 (NSW) offence itself. Added to that is the expression of psychiatric opinions by a number of medical practitioners that, at the time of the s 31 Crimes Act 1900 (NSW) offence, the Defendant was experiencing transient delusional beliefs. The Defendant himself denies having any delusions at that time. It seems clear from the evidence that the Defendant had developed a curious and troubling obsession with mould at his leased jewellery premises. It is clear that the Defendant was a troubled man with some disturbed thought processes in 2017. Button J so found in the final judgment leading to the 2019 ESO. [374] As noted earlier, a difficulty which confronts the Court at present is the need to undertake a risk assessment of the Defendant when he himself has not given evidence at the final hearing. Rather, the Court is left to assess a range of opinions expressed by various psychiatrists and psychologists who have interviewed the Defendant over a period of years about relevant topics. The opinions of these various professionals have varied in different respects as Button J noted in his 2019 judgment where an ESO was ordered. The Court must undertake the risk assessment process effectively one step removed from the Defendant."
The reasoning is, with respect, impeccable. It is entirely conventional that an expert's opinion must be based on the application of expertise to assumed facts. It is a matter for the court to determine whether the assumed facts are otherwise established. If they are not, the expert's opinion will lose some or all of its basis and thus have diminished weight, or perhaps no weight at all. That is not to say that psychiatrists and psychologists are not alert to the possibility that the person being assessed is concocting or tailoring the account proffered. Nor is it to say that such experts do not accommodate such possibilities into their opinions. It is, quite simply, that their function is different from that of the judge.
The importance of this stage of the assessment process was clearly identified by the judge in the following passage: "[250] As the various health professionals and experts who have reported on the Defendant have made clear, it is for the Court, and not the individual health professional, to undertake the necessary risk assessment for the purpose of the THRO Act. The Court does not, in some way, delegate that function to expert witnesses, although the reports of expert witnesses who have examined the Defendant are very important considerations to be taken into account under s 25 THRO Act." Particular (d) of ground 2 has not been made out.

[15]

Conclusions

For the reasons set out above, each of the separate grounds of appeal must be rejected. The appeal must therefore be dismissed. The proceeding was in substance a civil matter although it resulted in an order which, despite its effects on the liberty of an individual, is characterised as protective of community safety and not punitive. [20] Nevertheless, there is no power to award costs against an offender who brings an unsuccessful appeal. [21]
Three final observations should be recorded. The first relates to the consequence of the order made in this case, which involved the imposition of a further 18 month extended supervision order, which will run from 28 July 2021 and expire on 27 January 2023. As the primary judge noted, the appellant is presently subject to an intensive correction order (a form of imprisonment) which will continue until June 2022. The extended supervision order will therefore impose a degree of constraint on the appellant's liberty for an additional period of some seven months. [22]
Secondly, having formed the prescribed state of satisfaction as to the risk of relevant offending, the judge considered whether as a discretionary matter no further extended supervision should be made. He concluded that it should, and added the following observation: "[405] Given a submission made for the Defendant (see [306] above), I should emphasise that the Court is determining the present application on the evidence adduced at the hearing. The decision by the Court does not constitute a foundation for rolling ESOs to be made in the future with respect to the Defendant."
The final observation is this: these matters impose extraordinary pressures on judges in the Common Law Division, which should be acknowledged. They require review of large amounts of documentary material and a high degree of expedition in hearing and determining such applications. The present matter was heard over three days on 8, 9 and 12 July 2021. A carefully structured and comprehensive judgment running to 116 pages was delivered two weeks later on 26 July 2021. Nor was this a routine case. As the judge observed, the appellant was now 48 years old, had worked as a jeweller for a number of years and had no history prior to 2017 of support for any extremist ideology. [23] As the judge noted, this was "an unusual case." [24] Some features of it were deeply troubling and strongly favoured the imposition of a further order; other features militated against such an order. All the issues were properly canvassed by the primary judge.
The Court should make the following order: Dismiss the appeal from the judgment in the Common Law Division delivered on 26 July 2021.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Basten JA. I agree with the orders proposed by Basten JA and with his reasons.
I would add the following observations.
The primary judge found that the appellant was an "eligible offender" in respect of whom an extended supervision order could be made because he was under continuing supervision after serving a sentence of imprisonment for an indictable offence and had previously made statements and carried out an activity advocating support for violent extremism (Terrorism (High Risk Offenders) Act 2017 (NSW) ("Terrorism (HRO) Act"), s 10(1)(c)(i); [227], [237]-[238]).
Section 20(d) of the Terrorism (HRO) Act required that before making the extended supervision order the primary judge be satisfied to a high degree of probability that the applicant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
A serious terrorism offence being an offence against Pt 5.3 of the Commonwealth Code carrying a maximum penalty of 7 or more years of imprisonment, will involve the commission of, preparation or planning for, training for, assistance in, possession of something connected with, collection or making of a document connected with, a "terrorist act". A "terrorist act" is an action falling within s 100.1(2) of the Criminal Code that does not fall within subsection (3) and that has the dual intention defined thus: "terrorist act means an action or threat of action where: … (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (I coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public."
The primary judge referred to 16 matters against which he assessed the risk of the applicant's committing a serious terrorism offence.
The 15th matter to which his Honour referred was as follows: "[399] Fifteenthly, it is not necessary for the Court to identify a specific 'serious terrorism offence' for the purpose of the risk assessment under s.20(d) THRO Act (see [152] above). However, given the broad range of conduct accommodated under that heading, including preparatory offences and planning offences, I consider that the type of conduct undertaken by the Defendant in 2017 provides an appropriate foundation for an assessment of the risk of repetition of behaviour of that type in the future unless the Defendant is subject to an ESO."
The primary judge (at [45]) adopted Button J's description of the appellant's conduct in 2017 in State of NSW v Mathers [2019] NSWSC 7. The appellant had downloaded from the internet a large volume of written material concerned with the so-called "Sovereign Citizen Movement". Button J recorded that: "[8] In accordance with its underlying thesis, there has been on occasion violent resistance in the United States by its members to the enforcement of federal and state law, including by way of the murder of police officers and the attempted murder of judges."
It is clear that the appellant had threatened extreme violence. The State accepted that "violent extremism" in s 10(1)(c) connoted an element of ideology and is not to be equated with extreme violence. I agree with the State's submission that "violent extremism" refers to violence associated with, or in furtherance of, or motivated by extremist views. It does not follow that it was necessary to demonstrate that the Sovereign Citizen Movement, whose ideology the appellant supported, advocated violence. What was necessary was that it could be concluded that the appellant had advocated support for violent extremism, as distinct from having threatened extreme violence.
It will not always be the case a person who carries out an act will thereby advocate support for acts of that kind. A person who kills or steals would not, merely by those acts, be taken to advocate support for killing or theft. But a person's actions can advocate support for the same kind of conduct.
The appellant's threat addressed to the Minister written on the envelope to be read by parliamentary staff was not merely a threat to the Minister that he or she would be hanged for treason, but notice to the staff, who would be expected to read the envelope, that the Minister's supposedly treasonous conduct deserved such punishment. The same is true of the encouragement expressed in material posted on the LinkedIn website quoted by Basten JA at [25] that politicians or members of a supposed government corporation be bashed or killed. This clearly advocated support for violent extremism.
There was no error in the primary judge's conclusion that the appellant was an eligible offender within the meaning of s 10(1)(c)(i) of the Act.
Nor did the primary judge err in being satisfied to a high degree of probability that the appellant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order (s 20(d)).
The appellant submitted that his conduct in 2017 would not have amounted to the commission of a serious terrorism offence and hence the apprehension that such conduct might be repeated would not justify the making of an extended supervision order. Was the appellant's conduct in 2017 done with the intention of advancing a political, religious or ideological cause, or with the intention of coercing or influencing by intimidation the government of the Commonwealth or a State, or intimidating the public or a section of the public?
However obscure the ideology the appellant supported, he clearly issued the threats referred to with the intention of advancing that ideological cause. His language was intimidatory and plainly conveyed the intention to intimidate. The envelope was addressed to a Minister of the State and would be expected to be seen by those participating in the government of the State. The subject of the LinkedIn posts was the government of the Commonwealth or State. The answer to that question is yes.
The appellant's primary submission was that because of his deluded state he could not form the requisite intention to have committed a serious terrorism offence in the past from which the apprehension of unacceptable risk found by the primary judge could be based. For the reasons given by Basten JA that submission should be rejected. The delusions under which the appellant laboured may explain, but they do not negate, his holding an intention to carry out a terrorist act, as defined. Nor would they negate an intention to advocate support for violent extremism, if such an intention were required.
For these reasons, and those of Basten JA, I also would dismiss the appeal.
McCALLUM JA: I agree that the appeal should be dismissed for the reasons stated by Basten JA and the additional reasons stated by White JA.

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