Plaintiff v Defendant

2 In circumstances on which I will later elaborate, the defendant received a total effective sentence of 15 years' imprisonment for terrorism-related offences on 3 February 2009. Shortly before the expiration of his term of imprisonment, I made an interim detention order ('IDO') which commenced on 5 November 2020 on the expiry of the sentence. I later made a further IDO to come into effect on the expiry of the first IDO. Both orders were made without any opposition from the defendant. The current IDO is due to expire on 30 December 2020.

3 The making of the CDO sought by the plaintiff is opposed by the defendant.

4 The power to make a CDO is contained within Division 105A of the Code. That Division was inserted into the Code by Schedule 1 of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) and came into operation on 7 June 2017. The object of the Division, as indicated in s 105A.1:

is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

5 A serious Part 5.3 offence means an offence against that Part for which the maximum penalty is 7 or more years of imprisonment.[1] This encompasses a very wide range of terrorism offences, including many of a much less serious nature than those of which the defendant was convicted in the past.

6 Section 105A.3 identifies classes of persons to whom a CDO may apply. As a person who has been convicted of a serious Part 5.3 offence and is subject to an IDO, the defendant is such a person.

7 Section 105A.7, which sets out the requirements for the making of a CDO, provides:

(1) A Supreme Court of a State or Territory may make a written order under this subsection if:

(a) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and

(b) after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

(c) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1: An example of a less restrictive measure is a control order.

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1)(b) of this section (see subsection 105A.8(3) and section 105A.13).

8 Section 105A.8 sets out the matters to which the Court must have regard in making a CDO as follows:

(1) In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:

(a) the safety and protection of the community;

(b) any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender's participation in the assessment by the expert;

(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 he or she is or has been subject while:

(i) on release on parole for any offence referred to in paragraph 105A.3(1)(a); or

(ii) subject to a continuing detention order or interim detention 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;

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

(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.

(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.

(1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a continuing detention order proceeding.

(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:

(a) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and

(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.

10 Division 104 of the Act sets out the framework for the use of control orders to ensure the safety of the community from suspected terrorist offenders. The recent introduction of Division 105A seemingly reflects Parliament's view that there may be cases where even with the extensive measures possible under the control order regime, the risk a convicted terrorist offender poses to the safety of the community is too great for the person to be released at this time.

11 The Court was informed that the present application is the first made since Division 105A came into effect three years ago.

12 The defendant was one of 13 men charged with terrorist offending committed in the period 1 July 2004 to 8 November 2005. One of the accused, Izzydeen Atik ('Atik'), pleaded guilty and subsequently gave evidence in the trial. The trial of the other 12 accused commenced in February 2008 before Bongiorno J.

13 On the Crown case, the terrorist organisation to which these men belonged was an unincorporated body which was directly or indirectly engaged in preparing or fostering the doing of a terrorist act in that it was preparing or fostering an action or threat of action involving the use of explosives, incendiary devices or weapons intended to advance a religious cause, namely the pursuit of violent jihad in the advancement of Islam. The Crown alleged that this action or threat of action was intended to coerce or influence a government or governments and/or to intimidate the public or a section of the public. The defendant was alleged and found by the jury verdicts to be the director of the activities of the organisation.

14 On 15 and 16 December 2008, seven of the 12, including the defendant, were found guilty of knowingly being members of a terrorist organisation, and in some cases, other offences as well. The defendant was also convicted of directing the activities of a terrorist organisation, and of possession of a thing connected with preparation for a terrorist act. Four of the remaining accused were acquitted, and in the case of one, the jury could not reach a verdict.

15 The defendant was sentenced on 3 February 2009 to a total effective sentence of 15 years' imprisonment with a non-parole period of 12 years.[2] He was sentenced to be imprisoned for seven years for being a member of a terrorist organisation, 15 years for directing the activities of a terrorist organisation, and five years for the possession charge. All sentences were concurrent.

16 The co-accused received total effective sentences ranging from four years to eight years. All appealed against their convictions and sentences.[3] The defendant and one of his co-accused succeeded in their appeals against conviction in respect of the possession charge. A retrial was ordered in the case of the defendant. That matter did not, in the end, proceed. Otherwise, the appeals against conviction were dismissed. In respect of the appeals against sentence, all accused succeeded in their appeals. All other than the defendant were resentenced in a manner leading to a reduction in their total effective sentences. In the case of the defendant, his sentence on the membership charge was reduced, but the total effective sentence remained at 15 years' imprisonment.

The facts of the defendant's offending**[4]**

17 The defendant was born in Algeria in 1960 and emigrated to Australia at the age of 29 in 1989. He left his home country at least in part because he perceived the observance of Islam to be becoming more difficult there. He was a qualified aviation engineer in Algeria and upon his arrival in Melbourne was able to bring his qualifications up to local acceptance. He never worked in that field in this country, however, and indeed, spent much of his time prior to his arrest unemployed. It seems that the defendant focused his attention upon advancing his knowledge and involvement in his religion. He became increasingly recognised as a learned person in the Islamic community. He taught at various mosques and Islamic organisations. His attitudes to Islam and its practise brought him into conflict with other Muslims to such an extent that, eventually, he was either excluded from or voluntarily desisted from some community activities, including involvement with the Preston mosque. From about 2002, he came to the attention of the Australian Security Intelligence Organisation ('ASIO'), an organisation towards which he often expressed antipathy.

18 Some time prior to the indictment period, a number of young men including some of his co-accused, began to associate with the defendant and each other and to attend religious classes called 'dars' classes which he gave. The classes concerned Islamic theology, particularly focussing on the central concept of monotheism or 'tawheed'.

19 Outside the dars classes, the defendant associated, formally and socially, with those who were to become his co-accused. At some indeterminate time, they, with him, formed a group, or in Arabic, a 'jemaah', of which he was the leader. The jemaah existed, under the direction of the defendant, for the purpose of engaging in violent jihad, something which was regarded by the defendant and the members of the jemaah as an integral part of their religious obligations. This was a matter constantly reinforced by the defendant's teaching and discourse with his followers. He regarded the destruction of the 'kuffar' or 'unbelievers' as an essential aspect of Islam. It was intended by its members that the jemaah would achieve this by acts of what Bongiorno J called 'terrible violence in this country, or perhaps elsewhere'.[5] The purpose of such acts of violence in this country would be to coerce the Australian Government to withdraw Australian forces from Iraq. The presence of such troops in that country was seen as being oppressive to Muslims and the Islamic religion.

20 The jemaah was not proven to have any formal structure by way of meetings, records or the like, but it did have a sandooq (or box) towards which members made contributions. The sandooq was kept by Ahmed Raad under the direction of the defendant. There was a dispute at trial as to what the sandooq was used for, but Bongiorno J sentenced those who were convicted on the basis that the sandooq was used or intended to be used to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Disbursed funds were used for various purposes of the jemaah, although there was no proof that any purchases of weapons or the like were made.

21 In discussing the facts of the case, Bongiorno J stated:

The evidence that the jemaah, led by Benbrika was engaged in preparing or fostering a terrorist act is largely contained in the 482 intercepted conversations which were before the jury. Some of those conversations were covertly recorded at Benbrika's home and, occasionally, at other places, and some were recorded from intercepted telephone calls. In the former, Benbrika was almost always a participant, whereas the latter were often between other members of the group and sometimes included unidentified people. The nature and purpose of the organisation emerges from those conversations, and from the written and electronically recorded material found in the possession of some of the prisoners and discussed by them in a number of the conversations.

The term 'jihad' is used, particularly by Benbrika, in many of the intercepted conversations. Although it is an Arabic word which translates literally as 'struggle', it has acquired many different meanings in Islam, as Samir Mohtadi explained in his evidence. Many of those meanings are benign. It can mean the promotion of Islam by non-violent means; the seeking of perfection in one's own moral life and relationships with Allah; the diligent attention to one's religious and familial duties; and probably a number of similar things. However, it also means a violent struggle against the enemies of Islam: the kuffar. This was the meaning which Benbrika attributed to it, and he claimed that it was the only meaning of jihad authorised by the Koran. In a conversation with Sayadi and a man called Belhaj on 19 August 2005 he not only asserted that the only meaning of jihad was fighting the kuffar but also that it equated to what the kuffar called 'terrorism'...

Whilst, as might be expected, the content of the 482 conversations heard by the jury was diverse, it included a great deal of discussion concerning the necessity for the jemaah to engage in jihad in the Islamic cause. This concept was explained more than once by Benbrika as involving violence towards those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Sharia law (which he referred to as Allah's law) in this country. As he expressed it:

'...I don't believe in this country. I don't believe in this law. Which all this believe, no Allah but Allah, no Allah no other law. This the meaning of no Allah but Allah'

Benbrika referred to Australia as a 'land of war', thus justifying the promotion of a violent Islamic response as being self-defence. He justified fraud and violence against the kuffar because, according to him, 'the money and the blood of kuffar are lawful'. [6]

22 The members of the jemaah considered themselves brothers and sometimes referred to themselves as 'mujahideen', Islamic warriors fighting in the cause of Allah. They frequently spoke of 'doing something', alleged by the prosecution to be a euphemism for the carrying out of a terrorist act. Evidence indicated that all or most of the co-accused gave the bayat, or oath of allegiance, to the defendant.

There are numerous references in the conversations to the need for the members of the jemaah to be ready to destroy buildings and kill people for the cause of jihad. It was apparently considered by Benbrika that if such actions were carried out the Australian government would withdraw troops from Iraq or would leave the American alliance. The actions of those who engaged in the 11 September 2001 attacks in the United States and the train attacks in Madrid and London were discussed in terms of praise and admiration. The heavenly rewards said to be consequent upon dying in the Islamic cause were often spoken of. The necessity for fortitude in the face of opposition and even the inevitability, or at least the probability, of ultimate arrest and imprisonment were discussed as praiseworthy objects for the true 'mujahid', or 'person who engages in jihad', to pursue. On one occasion at least, Benbrika referred to his desire to continue the jemaah in gaol if 'the brothers' were arrested. He also expressed admiration for Osama bin Laden in conversations with members of the jemaah whilst criticising a Melbourne imam or cleric who expressed a view of bin Laden which was other than complimentary.[7]

24 Evidence from the conversations and raids conducted on the homes of the respective accused indicated that hard and electronic copies of various extremist jihadi literature and media, were viewed and circulated amongst members of the jemaah. This material included combat manuals, publications which contained recipes for making explosives, and diagrams showing how to make a timer for a bomb. Much of the material originated from extremist Islamic websites, upon which could also be viewed such things as graphic footage showing the beheading of hostages captured by the mujahideen. Bongiorno J said of this material that as well as providing instruction for terrorist activity, it had the effect, or could have had the effect, of:

desensitising these young men to the brutal and barbaric means by which there were expected to carry out executions of other human beings - as mujahideen faithful to the Islamic cause as interpreted by Benbrika.[8]

25 The evidence indicated that from time to time, members of the jemaah met together at various locations away from Melbourne, for the purpose of bonding, and on the prosecution case, to engage in training for the purpose of advancing violent jihad. The defendant seemingly considered training to be important, on one occasion on 21 September 2004 expressing the view that training in the use of knives for attacking the kuffar was necessary. He demonstrated to an unidentified male how a knife could be used to attack and kill a person, saying, 'You have to learn it'. [9]

26 In May 2004, an undercover Victoria Police member infiltrated the group pretending to be a Turkish Muslim who had experience with explosives and their use. He attended a number of dars and befriended members of the jemaah. In October 2004, he offered to show the defendant how an explosive could be made from a mixture of ammonium nitrate fertiliser and diesel oil. To that end, the defendant attended with the undercover operative at a remote bush location where a small quantity of explosive material was detonated by the latter. In subsequent discussions, the defendant enquired how much explosive would be required to destroy different targets such as buildings and houses and where and how such explosives could be obtained. He did not ask the undercover operative to obtain explosives, however.

27 At the plea hearing, counsel for the defendant asserted that it should be concluded, from matters including his failure to request the undercover operative to source explosives for the group, that he was not serious about wishing to gain knowledge about explosives. Bongiorno J considered another explanation for the apparent nonchalance of the defendant may have been caution on his part, in view of his awareness that ASIO was interested in him and his group and possible concerns about the bona fides of the covert operative. He went on to say:

If Benbrika was cautious in his dealings with SIO 39, this was in complete contrast to his open encouragement of the members of the group to engage in terrorism - almost always in conversations covertly recorded within his own home. For example, on 24 September 2004 he exhorted Merhi to not just kill a few people but to 'do a big thing', to which Merhi replied, 'like Spain' - an obvious reference to the terrorist attacks on the Madrid train system which had occurred on 11 March that year. In the same conversation, Benbrika referred to killing a thousand people so as to coerce the government into withdrawing Australian troops from Muslim countries. In a later recorded conversation with Atik, Benbrika referred to damaging buildings and blasting things.[10]

28 The only evidence in the trial of the organisation having selected a target or targets for a terrorist act was given by Atik, who said that during a car trip in a motor vehicle with the defendant in August 2005, Benbrika told him that the group had intended to carry out a terrorist attack at the Melbourne Cricket Ground during the then forthcoming Australian Football League Grand Final, but the attack had been postponed for security reasons and due to funding difficulties. According to Atik, the defendant also mentioned other possible targets.

29 Bongiorno J strongly criticised the credit of Atik during the sentence, expressing the view that it was unlikely that the jury would have accepted him as a witness of truth. He stated that he would not accept him as such. As a result, he stated:

For sentencing purposes, no account will be taken against the prisoners of any of Atik's evidence. Specifically, the prisoners will be sentenced on the basis that they were members of a terrorist organisation which, although it had encouraged them to perform a terrorist act or acts in the future and had taken steps towards that end, no target or targets had been selected and no explosives or other material had been obtained to carry out such an attack.[11]

30 Whilst acknowledging that an acceptance of Atik's evidence would have rendered the criminality of the defendant and his co-accused all the more serious, his Honour noted:

This is not to say that their criminality is to be regarded as trivial. The existence of the jemaah as a terrorist organisation constituted a significant threat that a terrorist act would be or would have, by now, been committed here in Melbourne. The absence of an imminent, let alone an actual, terrorist attack does not mean that condign punishment is not warranted in this case.[12]

The essence of Benbrika's criminality, with respect to the Count of directing the activities of a terrorist organisation lies in his exercising an enormous influence over the young men who followed him, and imbuing, or seeking to imbue in them, a fanatical hatred of non-Muslims and, even, those vast majority of Muslims who abhor violence as much as anyone else. The degree of his criminality, both with respect to his membership and direction of the organisation, must be judged in light of the fact that the existence of that organisation and his leadership of it created a significant risk that a terrorist act would be committed in this community. Where and when such an act might have been committed, how devastating it would have been, or how many people would have been killed or injured as a result of it is impossible to say. It is the creation of the risk of such an event occurring that the legislation is aimed at. Accordingly, it will be for his part in the creation and maintenance of this risk that Benbrika will be punished.[13]

32 On the question of the defendant's position in respect of violent jihad at the time of sentence, his Honour stated:

There is no evidence before the Court that Benbrika has, in any way, renounced his commitment to violent jihad and hence to terrorism. On the contrary, on one occasion, which has already been noted, he said that if 'the brothers' were arrested, as he thought likely, the jemaah should continue in gaol. No submission was made on Benbrika's behalf that he had resiled from his former position, nor was there any evidence upon which such a submission could have been based. Indeed, all of the evidence points inexorably to a conclusion that he maintains his position with respect to violent jihad which was demonstrated over and over in his own words on (sic) the intercepted conversations.[14]

33 As well as being involved with the members of the jemaah over which he presided, the defendant also was involved with a number of members of a terrorist organisation operating in Sydney in the period in question. A number of individuals were convicted in the Supreme Court of New South Wales on 16 October 2009 of conspiring to do acts in preparation for a terrorist act (or acts). A number of participants in that conspiracy visited Melbourne and met with the defendant on several occasions. On one of those occasions in May 2005, the defendant participated in a conversation with some of the Sydney conspirators in relation to the ordering of laboratory equipment. The defendant and some of the members of the jemaah visited one of the conspirators, Khaled Sharrouf, in Sydney in 2004. The defendant had two further visits to the home of Sharrouf in 2005.[15]

34 The defendant has been in custody since his arrest in November 2005. He has spent the bulk of his overall time and all of the period since the commencement of his sentence in various units of Barwon Prison. Throughout his sentence, the defendant was been subject to a maximum security classification. During the early stages of his incarceration, he did not work, preferring to focus on his trial and his religious studies. On the latter score, he told those present at a [redacted] on [redacted] that he learned the Koran off by heart in a matter of months. From 2012, he has maintained employment within the prison, and has been considered to be an excellent worker. The defendant received fines and loss of privileges for a number of incidents of which he was found guilty between 2006 and 2013, some of them involving assaults or aggression. In addition, there were further incidents which did not lead to any charges.

35 On 18 September 2014, the defendant was transferred from the Protection Unit (Hoya) to a High Security Unit ('HSU') (first Acacia then Olearia). The transfer occurred pending investigation into claims that he had been radicalising other prisoners. It was alleged that he had been engaging in preaching to other prisoners and on 21 August 2014, a CD containing extremist and graphic content was seized in his cell. At a meeting on 24 September 2014, the Sentence Management Panel ('SMP') explained to the defendant that his preaching had become problematic to the management of the Hoya Unit. The defendant disputed this, making reference to current events in Iraq and Syria and suggesting that the panel would not understand his point of view.

36 On 14 October 2014, Corrections Victoria ('CV') determined that the defendant would remain in the HSU as a long-term management prisoner. It was explained to him that his behaviour caused disruption with the Hoya Unit, and the extremist views expressed by him caused angst amongst other prisoners.

37 From 2014, CV placed restrictions on the defendant's visitor list. From September 2014, his list of visitors was restricted to ten, it having been determined that a number of the 51 people who had previously visited him were not appropriate.

38 On 9 December 2016, the defendant was transferred from the HSU back to Hoya, subject to a Behaviour Management Plan designed to ensure he did not engage in any conduct encouraging violent extremism and to avoid him positioning himself as a religious leader within the unit. Notwithstanding the plan, intelligence suggested that he continued to lead prayer sessions and may have continued to radicalise other prisoners. He was also noted to continue to maintain strong ties with the Muslim community in custody and outside, often communicating with the assistance of his family members.

Clinical sessions, CISP involvement and parole refusals

39 The Community Integration Support Program ('CISP') (pronounced SISP) was launched in 2010 and is Australia's first prison-based terrorist disengagement program. It was specifically designed to address Islamic extremism. It was expanded in 2015 to provide a community-based disengagement program for vulnerable individuals. Within a correctional environment, CISP is delivered by the Countering Violent Extremism Unit ('CVEU') of Victoria Police in partnership with CV and religious leaders. Between 2010 and 2017, the religious partnership was with the Islamic Council of Victoria ('ICV'). Since October 2017, the partner has been the Board of Imams Victoria ('BOIV').

40 Participation in CISP is voluntary, but prisoners convicted of terrorism offences will not be considered for parole unless they have undertaken CISP. Convicted terrorists are referred to CISP automatically. Other referrals are made by the Major Offenders Unit ('MOU'). Once a referral is made, the CVEU determines whether the candidate is suitable for inclusion in the program. [Redacted].[16]

41 In February 2012, the CVEU referred the defendant to CISP. Between February 2012 and August 2013, he participated in [redacted] counselling sessions with [redacted]. In July-August 2013, the defendant ceased his interaction with the mentors and CISP, claiming that he had been engaged dishonestly and without full knowledge of the program and its purpose.

42 Between July 2015 and February 2016, the defendant participated in clinical sessions with Nicole Sakellaridis, a Senior Clinician with the MOU. Ms Sakellaridis prepared clinical file notes of these sessions. The initial purpose of the sessions was to address the defendant's personal and treatment needs, including the concern raised by his legal representatives that he may be suffering from depression and would be open to engaging in rehabilitation and educational programs.

43 In many of the clinical sessions, the defendant's past and future involvement in CISP was discussed. The defendant indicated a willingness to be involved, but stated that the right religious mentor would need to be selected, implying that he himself was a knowledgeable scholar. It was concluded by Ms Sakellaridis that it was required that the defendant's ideological views be challenged by a cleric with a detailed knowledge of the necessary cultural and religious issues. She raised this issue with the MOU.

44 In August 2015, the MOU referred the defendant again to CISP. The defendant was found unsuitable for participation in CISP, for reasons including the fact that a suitable Imam could not be identified.

45 In a session with Ms Sakellaridis on 6 October 2015, the defendant impugned the integrity of many Imams in the community, claiming that they were only interested in money and held Government-inspired views which had them scared to tell the truth. He suggested that all the Imams working with CISP fell into this category and were not respected in the community.

46 In February and March 2016, the defendant was re-assessed for his suitability for CISP. [Redacted]. He was assessed as being not ready to engage with CISP in a productive manner because he was considered to be unwilling and unable to engage in robust ideological discussions designed to challenge his beliefs. It was recommended that he receive clinical support from one-on-one sessions with CV staff for the purpose of preparing him for CISP by improving his engagement style and increasing his preparedness to submit to a mutually respectful religious mentoring scheme.

47 It was in those circumstances that he commenced working with Dr Kelly Mischel, Senior Psychologist with the MOU on 23 February 2016. He participated in clinical sessions with her until 28 September 2020. Her clinical file notes were amongst the material tendered in the hearing.

48 Dr Mischel discussed with the defendant his motivation for engaging in the clinical sessions. He told her that he believed that if he refused to do so CV would make a big issue of it. Attending these sessions would be beneficial for him in his parole application.

49 In 2016 and 2017, the defendant made a number of negative statements to Dr Mischel about CISP and the mentors. He claimed to be more learned than any of the Sheikhs and Imams from CISP. In a phone call to his son Bakr on 24 June 2017, the defendant asked Bakr to call a particular Sheikh known to them and tell him that all of the Imams and Sheiks connected with CISP were apostates. On 14 November 2017, the defendant told Dr Mischel that anyone doing a deradicalisation program was lying because you cannot ask someone to stop praying. The agencies involved were taking money for nothing, which was a sin.

50 On 20 September 2017, the Commonwealth Parole Office ('CPO') wrote to the defendant informing him that he would be eligible to be considered for parole on 5 November 2017, that CV and Victoria Police had recommended that parole be refused, and setting out adverse matters relevant to the Attorney-General's assessment of the defendant's parole, seeking his response.[17] The defendant was asked to comment on various matters, including whether he had continued to influence people in custody or in the community to hate non-Muslims or Muslims who do not support violent jihad or to pursue violent jihad, whether he was in contact with his co-offenders or other people convicted of terrorist offences, and whether he had renounced his commitment to violent jihad and terrorism. The CPO received no response to this letter.

51 On 1 November 2017, the Attorney-General declined to release the defendant on parole, and signed a parole refusal notice outlining the reasons for the refusal.[18] Those reasons included that the defendant had been assessed by the Australian Federal Police ('AFP') and Victoria Police as posing a risk to community safety because he had maintained extremist beliefs and had a history of influencing people to become involved in violent extremism, that he had continued to associate with people of national security interest, and that he had not participated in CISP. The parole refusal notice was provided to the defendant on 3 November 2017.

52 On 14 November 2017, the defendant had his first clinical session with Dr Mischel after the parole refusal. For the first time, he made the claim set out in the following section of the clinical notes:

Nacer explained that in 2014 he had found out some things that he needs help translating and to understand properly. He stated that he learnt that when a Muslim gets a visa or citizenship in another country they are required to protect the people of that country from harm. Therefore the country of his residence would be protected from any violence he would consider part of the ideology to inflict.[19]

53 In the session, the defendant also claimed that his statements relied upon in his trial, particularly those about needing to do something, were just bravado, and he was not intending to harm anyone. He said he only had a 30 percent understanding of Islam at the time of his arrest and now had a much better understanding through further study in custody. He claimed that anyone doing a deradicalisation program was lying because you cannot ask someone to stop praying. He further stated that he could not denounce violent jihad 'because that would be saying that he is a disbeliever and he can't do that'. Dr Mischel noted:

'Whilst he cannot denounce violent jihad he would like to speak to the Sheik (sic) and provide information to the Attorney General to explain why the people of Australia are safe and he could not harm them'.[20]

54 In November 2017, the defendant was re-referred for engagement in CISP.

55 There were [redacted] initial [redacted] in [redacted] in which the defendant, Dr Mischel, and [redacted]. The purpose of [redacted] was for a consent form to be signed by the defendant. He indicated his willingness to commence and engage with any Imam chosen, but 'did make one remark that in the past the Imams who saw him quoted religious scholars incorrectly and most of them "don't know it"'.[21] Dr Mischel also wrote the following in her case note:

Nacer did fixate on a couple of topics included (sic) his letter from the Attorney General asking him to 'denounce violent jihad'. He spoke about how 'violent jihad' was part of Islam and he could not deny this. As with many concepts, Nacer takes this quite literally and finds it difficult to understand what the AG is actually seeking to understand about his beliefs and risk.

56 On 23 May 2018, the defendant provided the signed consent form and he was officially into the CISP program. At this time, a needs assessment and intervention plan was prepared for the defendant [redacted][22] which was done. Five specific needs were identified and specific goals were set. The first was to actively accept and promote that violence is not an acceptable form of dialogue or progressing an agenda. The second was to denounce violent extremism.

57 From that time, the defendant has participated in regular [redacted].

58 On 15 June 2018, a parole assessment report interview of the defendant took place, conducted by an unnamed CV officer. A detailed case note of the interview appears in the tendered material.[23] During the interview, the defendant said that things were now very different. He said that he did not think that the risk posed by him would vary depending on where he lived upon release. He indicated that he felt a sense of responsibility to provide guidance to people who approached him asking for help. He mentioned a strategy discussed with Dr Mischel to send them to an Imam, but made the point that 'people don't trust Imams, they trust me'. When asked why people would come to him, he said, 'Ask them', and that his religion did not permit people to boast. He was concerned that if he turned people away they would take it the wrong way. He said, 'I like to speak the truth and this is used against me, this is a villain'. He questioned whether he should be honest with the writer, or should lie. The defendant was asked whether there was any further information he would like to provide for the parole assessment. He said that he had spoken the truth in the past, and that after having been denied parole, he questioned why he was honest when it was used against him. He described it as a 'war in myself' as to whether he should be honest or not. When asked to discuss his current views, the defendant said that he had 'found a window by reading', and said that a Muslim living in Australia was not allowed to harm anyone. At the time of his offending, he did not know this. He had felt that it was his role to defend Muslims killed in Iraq. 'Australia was an ally to help fight against Muslims, why is the Government fighting against Muslims? I have to defend, I have to harm them.' That was the expectation of all Muslims. It was his duty. He agreed that in the past he saw it as his religious duty to cause harm to the Australian community because he felt that the Australian government was harming Muslims overseas.

59 On the question of renouncing violent jihad, the defendant said jihad meant to fight for the sake of Allah, a holy war. He said he did not recognise the term 'violent jihad', and asked, 'What do they want me to renounce?' He spoke of two different meaning of jihad, one religious and one linguistic. He was not allowed to give up part of his religion. He would not be able to say that he renounced jihad as he will continue to fight for Allah and would not renounce his religion. He would continue to abide by Islamic law, not Australian law. He would continue to fight for Allah, although he would not use violence.

60 On 14 September 2018, the CPO again sent a letter to the defendant setting out adverse matters relevant to the Attorney-General's assessment of the question of parole for the defendant. Again the defendant was notified of the opposition of CV and Victoria Police to a grant of parole, and matters requiring his response were listed. This time, the defendant did respond, in a letter dated 15 October 2018.[24] In the letter, the defendant stated that his religion continued to be important to him, and that he wanted to continue to worship with the guidance of spiritual teachers. He said that if released on parole, he would organise regular visits to the mosques of Sheiks with who he had developed ongoing relationships through CISP. In dealing with his former extremist ideology, he stated that he was motivated by a false understanding of his religious obligations. He stated that he knew that acts of violence against people and governments are criminal. He no longer held his previous views, and no longer condoned violence of any sort. He had deepened his understanding of his religious obligations. Through conversations with Imams and through studies of many religious texts, especially a named book by the scholar, Abdelkader Ibn Abdelaziz, he now understood that it is against the will of Allah to take up arms against a foreign government and against non-Muslims. His understanding of jihad had become more clear. The government and people of Australia had given him a home, and he was obliged by his religion to follow and show respect to the government and system of laws. He was not under an obligation in or outside Australia to fight jihad. He refuted that he was now being less vocal about his views of global terrorism because he was aware of the consequences of expressing his views. Rather, his views had changed. As for his past offending, he fully acknowledged that what he did was wrong and expressed his deep remorse. He said that he did not consider that he was the victim of injustice, or had been persecuted in any way by the Australian government, Victoria Police or CV.

61 On 26 October 2018, the Attorney-General declined a grant of parole, signing a refusal notice outlining the reasons for the refusal. In the notice, the Attorney-General acknowledged the defendant's claim of having developed a reinterpretation of his ideology. He stated that ongoing engagement with CISP would be a necessary step in demonstrating that the risk he posed had reduced.

62 The defendant continued to engage in CISP after the second parole refusal.

63 On 13 June 2019, a further a parole assessment report interview of the defendant took place. A lengthy file note of the interview appears in the materials.[25] In opening the case to the Court, Ms Orr QC took me to several passages in the file note. A number of these were relied on as indicating that the defendant gave answers which he believed may appease the interviewer, that he showed continuing grandiose confidence that people would seek out his views in the community, that he displayed a disparaging attitude towards Imams, and that his sons were an emanation of him and a way of espousing his ideology. In claiming that people would come to see him rather than an Imam, he said, 'I am best source'. He reiterated that there was no way that he could denounce jihad as this was a part of his religion. It would be like someone asking him to deny another part of his religion, such as prayer. He said his opinion regarding his ideology had changed, but not his religion. He did not consider that being in contact with a radicalised person would be a risk to him.

64 On 28 August 2019, the CPO again wrote to the defendant setting out adverse matters relevant to the Attorney-General's assessment of the defendant's parole. Again, the defendant was asked to comment on a number of matters, including matters relating to his ideology, the relationship between Australian and Sharia law, his associations with people who have radical ideology, and the benefits he had obtained from participation in CISP. The defendant responded to that letter.[26] He again suggested that he now understood that there is an obligation on Muslims living in non-Muslim lands to follow the rules and laws of that land. Previously, this had been 'obscure' to him. He acknowledged that he had been in contact with some of his co-offenders and Khaled Sharrouf, but said this was of a harmless nature and had ceased in 2017. He said that he had received visits from people who wanted to fight overseas, some of whom ended up going there and dying in conflicts. He never encouraged them to fight overseas. They were adults and made their own decisions. At the time of the visits, he maintained his old ideology. If he had his time again, he would try to discourage them from going.

65 At a [redacted] on [redacted], the defendant, according to a note of the session, in the course of discussing the treaty to which he had earlier referred:

mentioned that he will think about proclaiming openly about his new view on not supporting violence, he says he needs time to think about it and how it will happen.[27]

66 At a [redacted] on [redacted], the defendant was asked how he viewed the relationship between Islamic law and Australian law. He apparently found this question somewhat confronting, in that he was unsure as how best to answer the question without compromising his theological beliefs.

67 At a [redacted] on [redacted], [redacted] asked the defendant how he viewed ISIS. He indicated that he did not wish to answer the question directly, and offered an example from history. He said that he would need to read the publications of ISIS in order to be able to better evaluate them. He declined the request to answer some further questions in writing, saying that he had already written his responses to the Attorney-General.

68 On 17 October 2019, the Attorney-General declined to release the defendant on parole and signed a parole refusal notice outlining the reasons for the refusal. This was forwarded to the defendant on 24 October 2019.

69 At a [redacted] on [redacted], in a discussion about the commonality between religions, the defendant questioned the concept. He said there were commonalities between human beings and dogs, but that did not make human beings equivalent to dogs, or vice versa. He reiterated that he believes in dealing with non-Muslims with justice and respect as Allah had said in the Quran, but he believed it was important to have enmity towards them from a theological standpoint as they are a falsehood. In the same session, the mentor asked the defendant his thoughts regarding the death of Abu Bakr al-Baghdadi.[28] He said it was expected to happen, and did not wish to elaborate further.

70 At some point in 2019,[29] a review of the defendant's progress against the objectives in his intervention plan was conducted by a review panel comprising representatives of the CVEU, the BOIV, and CV.[30] In respect of the goal, 'To actively accept and promote that violence is not an acceptable form of dialogue for progressing an agenda', the panel stated, by way of summary, 'Client has shown little change in this area and often appears resistant to change'. In respect of the goal 'To denounce violent extremist groups and their supporters", the conclusion was:

Client is unwilling to denounce extremist groups, citing that he cannot because he does not have materials to review and then justify his response. This is not typical of offenders who are mentored by members of the BOIV. Client appears to be unwilling to take things at 'face value' from qualified and educated Imams.

71 The review panel made a number of comments [redacted]. A number of them were as follows:

• Client has been historical (sic) very open with his comments but is no longer happy to speak freely.
• Initial mentoring went through a different approach according to [redacted] but it was decided that using chapters from literature were too time intensive and did not work ideally.
• Second approach was related to his crimes and asks him direct questions and this was effective for a time.
• Client now believes that there is no reason for him to answer questions because of [redacted]. [Redacted] will continue to ask questions directly to him.
• Client tends to disagree with himself in regards to previous comments he has made. The main example is that sometimes he will state that his family is the most important thing to him but then will state that they are not compared to his release into the community.
• Client tends to have issue (sic) with learned Imam's (sic) stating things and his position being opposite. He believes they are illegitimate.
• [Redacted] that there is no way that the program can achieve success with him in the time that is left before his release.
• [Redacted] that his conviction is what he truly believes in and will read something once and make his decision essentially for life.
• [Redacted] believe that he will continue to preach when he is released and that he has made this very clear.

72 [Redacted] continued into 2020. [Redacted], the defendant and [redacted] had a discussion regarding:

tafkir of the rulers as well as those who rule by man-made law. According to his comment, he believes that ruling by any other laws than the law of Allah is kufr akbar (greater disbelief)[31] and thus anyone who does so is a disbeliever outside of the fold of Islam.

73 At a [redacted] on [redacted], the defendant spoke about a problem he had with a question posed to him by CV. He was apparently asked if he saw his clinician Dr Mischel as kuffar. He answered in the affirmative. He said that he could not lie as this was part of his faith. He spoke further about the implications of her being kuffar, and made the point that he recognised that Muslims and non-Muslims can live peacefully. In a discussion about terrorism, the mentor asked how it can be deemed logical. The defendant said that there are different opinions regarding suicide bombing. The mentor asked his views about Australia. The defendant said that we need to weigh the harms and benefits before committing to action.

74 Sometime prior to 2 September 2020, the 2020 review of progress under CISP was carried out. In the written report of the review,[32] the summary of progress for the first stated goal 'To actively accept and promote that violence is not an acceptable form of dialogue or progressing an agenda', read, in part, 'Client has shown little change in this area and often appears resistant to change and has even gone as far as reversing his opinion'. In respect of the goal 'to denounce violent extremist groups and their supporters', the summary of progress was the same as that contained in the review for the previous year.[33]

75 The review panel notes at the conclusion of the document note, in part, as follows:

• Client declares that he is not a true Salafi and is actually in opposition of Saudi Arabian salafi movement.
• Mentor notes that client has attempted to persuade CISP and stakeholders in his moderation of beliefs. However, mentor states that he is unsure of client genuineness.

76 In a [redacted] on [redacted], the defendant made it clear to [redacted] that if he went to Court, he would not stand for the judge, as he believed it was not right from an Islamic perspective to do so. He maintained that position in spite of being challenged as to its correctness by the mentor.

77 In a [redacted] on [redacted], the defendant was [redacted] whether he would continue with CISP upon release. The defendant stated that he would not be released on parole, and as it would not be a condition that he continue in the program, he would not need to do so. When pushed further on the matter, the defendant said he would see what his options were, and decide upon his release.

78 On 20 November 2020, the Minister for Home Affairs made a determination under s 36D(1)[34] of the Australian Citizenship Act 2007 that the defendant ceased to be an Australian citizen. From the time of the determination, the defendant ceased to be an Australian citizen. He remains a citizen of Algeria. The defendant has a right to apply to the Minister to have the determination revoked. He could also seek judicial review of the determination, and any decision not to revoke the determination.

79 Under s 35(3) of the Migration Act 1958, when his citizenship ceased, the defendant was taken to have been granted an ex-citizen visa, a permanent visa to remain in but not to re-enter Australia. Sections 501(2) and (3) of the Migration Act provide the Minister with a discretion by two different pathways to cancel the defendant's ex-citizen visa on the basis of his not passing the character test. Because of the crimes of which he has been convicted, the defendant is unlikely to pass the character test as defined in s 501(6). The powers under ss 501(2) and (3) are broad discretionary powers and there is a range of reasons which may cause the Minister to choose not to exercise those discretionary powers.

80 If no decision was made to cancel his visa, unless a CDO was made the defendant would be free to remain in the Australian community. If the visa was cancelled, he would become an unlawful ex-citizen and become liable to immigration detention under s 189(1) of the Migration Act 1958.

81 There would be avenues for the defendant in those circumstances to challenge the cancellation of his visa. Alternatively, he could make a written request to be removed from Australia, and under s 198(1) of the Migration Act 1958 he would be required to be removed as soon as reasonably practicable.

82 The plaintiff's case largely consists of affidavit material. In her opening before me, Ms Orr for the plaintiff took the Court through this material, indicating the subject matter of the various affidavits, reports and other items which were tendered in evidence, and highlighting objections taken by the defendant in respect of some or all of the contents of some affidavits and reports. There was no challenge to the admissibility of most of the affidavits and other documents, and insofar as material was contained in affidavits and not subject to objection, it was largely unchallenged.

83 The following affidavits, reports and other documents were tendered during Ms Orr's opening, with the accompanying exhibit numbers:

1. Affidavit of Lisa Telford affirmed 2 September 2020. Ms Telford is from Australian Border Force and annexed records of the international travel movements of 19 known or suspected foreign fighters associated with the defendant.
2. Affidavit of Kelly Smith sworn 3 September 2020. Ms Smith is from the Federal Bureau of Investigation ('FBI') and annexed an FBI memorandum concerning an interview conducted with Jamil Choucair in Syria.

1. Affidavit of Troy Kaizik sworn 1 September 2020. Mr Kaizik is from the Australian Passport Office, Department of Foreign Affairs and Trade, and his affidavit annexed correspondence sent to 12 individuals connected with the defendant concerning the cancellation or refusal of passports.

1. Affidavit (redacted) of Scott Lee sworn 3 September 2020. Assistant Commissioner Lee is with the Counter Terrorism and Special Investigations Command of the Australian Federal Police ('AFP'). The affidavit explains the ideology, aims and methods of Islamic State and the threat of domestic terrorism in Australia inspired by Islamic State. The affidavit also addresses the asserted lack of any effective, less restrictive measure in preventing risk.
2. Affidavit of Scott Lee sworn 27 November 2020. This affidavit concerns an application by AFP for a control order against the defendant.
3. Affidavit of Stephen Hildrew affirmed 3 September 2020. Mr Hildrew is an Australian Border Force officer within the Department of Home Affairs. His affidavit annexes documents in respect of Amer Haddara.
4. Affidavit of Jennifer Perrin affirmed 1 September 2020. Ms Perrin is the Director of the Commonwealth Parole Office ('CPO'). Her affidavit provides information concerning the defendant's parole assessments in the years 2017 to 2020, annexing relevant documents.
5. Affidavit of Jennifer Perrin affirmed 9 September 2020. This affidavit annexes the refusal of parole notice from 1 October 2020.
6. ...
7. Affidavit of Jennifer Hosking sworn 3 September 2020. Ms Hosking, Assistant Commissioner (Sentence Management), Corrections Victoria, explains arrangements made for the detention of the defendant under a CDO.
8. Affidavit of Peter Fogarty sworn 3 September 2020. The affidavit of Acting Superintendent Fogarty, AFP, annexes transcripts of listening device conversations received in evidence at the defendant's trial.

1. Affidavits of interpreters sworn and affirmed 3 or 4 September 2020. These affidavits annex English translations of defendant's correspondence and telephone calls from prison.

1. Affidavit of Frank Dumic sworn 4 September 2020. Mr Dumic, Acting Assistant Commissioner, Security and Intelligence Division, Corrections Victoria describes and annexes records contained within defendant's prison file.
2. Affidavit of Frank Dumic sworn 14 September 2020. This affidavit describes and annexes the defendant's prison visitor logs, copies of correspondence and recordings of telephone calls made by the defendant.
3. Affidavit of Frank Dumic sworn 1 October 2020. This affidavit annexes lists of telephone calls made by the defendant in period 2017 to 2020.
4. Expert report of Charles Lister (redacted) dated 30 August 2020. Mr Lister, the director of the Countering Terrorism and Extremism in Syria programs in the Middle East Institute, Washington DC, describes the role of individuals who are radicalisers or influencers in Islamic extremist related terrorism.
5. Expert report of Adrian Gully (redacted) dated 2 September 2020. Dr Gully, an Arabic interpreter and academic experienced in Arabic and Islamic culture and history, describes Islamic scholars and concepts.
6. Expert report of Adrian Gully dated 23 September 2020. In this supplementary report, Dr Gully provides information about further Islamic texts.
7. [Redacted].
8. [Redacted].
9. Affidavit of Richard Feakes affirmed 4 September 2020. In this affidavit, Mr Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator, Department of Home Affairs addresses matters relevant to the statutory pre-conditions for making a CDO. He annexes the sentence passed upon the defendant by Bongiorno J in the Supreme Court of Victoria, documents relating to the refusal of the defendant's parole applications, material about enquiries made about the existence of information that might reasonably be regarded as supporting a finding that a CCO should not be made. In addition, he annexes letters sent to Khaled Sharrouf and Majed Raad notifying them of the cessation of their Australian citizenship.

1. Affidavit of Richard Feakes affirmed 14 September 2020. This affidavit addresses arrangements made for the defendant's accommodation and management under a CDO.

1. Affidavit of Richard Feakes affirmed 13 October 2020. This affidavit provides an update in relation to parole.

1. Affidavit of Graeme Grosse sworn 25 November 2020. Mr Grosse, Commander of National Immigration Detention, Australian Border Force, explains certain matters in respect of immigration detention.

1. Passport applications provided by the Department of Foreign Affairs and Trade pursuant to subpoena.
2. Statement of Agreed Facts dated 6 November 2020.

84 In the context of the picture painted by the evidence contained in the affidavits, the plaintiff called two expert witnesses whose evidence was subject to strong challenge. These were Chelsey Dewson and Dr Kelly Mischel.

85 Ms Dewson is a forensic psychologist who was engaged by the plaintiff to carry out a psychological assessment and risk assessment of the defendant. Ms Dewson has a history since 2004 of working in various aspects of the justice sector including for some years as Centre Psychologist at Long Bay Correctional Centre in New South Wales ('NSW') and for six years in the Sex and Violent Offender Therapeutic Programs in the Custody Based Intensive Treatment Unit where she provided assessment and intervention to high-risk offenders. Since going into private practice in 2016, her work has largely revolved around providing expert advice to courts in NSW including for pre-sentence matters and those pertaining to high-risk offender legislation for sexual, violent and violent extremist offences. Ms Dewson carried out her assessment of the defendant in the knowledge that the plaintiff was contemplating an application under Division 105A of the Code for a CDO. She was engaged as an independent expert to conduct an assessment of the risk of him committing a serious Part 5.3 offence if he is released into the community upon expiration of his sentence. She was also asked to consider certain terms of reference to which I will later turn.

86 In circumstances of limitations on personal contact due to the COVID-19 pandemic, Ms Dewson interviewed the defendant via Webex between her office in NSW and his location in Barwon Prison on 30 July 2020. The interview lasted three hours and fifteen minutes. Present in the interview were an Algerian Arabic interpreter and the defendant's legal representative, Ms Isabelle Skaburskis. A semi-structured interview and psychometric testing carried out by Ms Dewson form the basis of her assessment.

87 As a result of her assessment of the defendant, and a consideration of a vast volume of material from other sources relating to the defendant, Ms Dewson provided a report dated 7 August 2020.[35] In addition, she provided further reports dated 31 August 2020[36] and 11 November 2020.[37] She also gave sworn evidence before me on 2 December 2020.

88 Notwithstanding the presence of an interpreter, the interview was conducted wholly in English, the interpreter being used for translation purposes on two occasions only. The defendant was advised at the commencement that the purpose of the assessment was to provide a report to the Minister for Home Affairs, and that what was disclosed in the interview would not remain confidential. The defendant gave his consent to participate in the assessment. Ms Dewson noted the defendant to be compliant, respectful and seemingly forthcoming with information. In the interview he was asked questions regarding his attitudes, beliefs and values. Ms Dewson considered his responses:

reflected an idiosyncratic communication style which appeared to veil his inner cognitive processes. Specifically, he was vague, tangential and tended to focus on religious principles rather that personal reflections. Acknowledging that for the most part, Mr Benbrika's beliefs are intertwined with his religious views, this made it difficult to gain insight into his functioning.[38]

89 Ms Dewson set out the family and developmental history of the defendant. He was born and raised in Algiers in Algeria, the third youngest of ten children born to parents who remained together until his father died in 1986. His father had been a strict disciplinarian. His mother became blind as a result of a degenerative condition. It was a patriarchal family structure. Ms Dewson noted the defendant's motivation for leaving Algeria rested in the civil unrest occurring in Algeria at the time, his belief that there would be no life for him there, and the fact that it had become difficult for him to practise his religion.

90 Having moved to Australia at the age of 29, he settled in Melbourne, initially feeling unsettled with the freedom apparent in the society. He became more reliant on religious principles to provide him direction. He did not integrate well into Australian life.

91 The defendant indicated that his wife and seven children, all born in Australia, have continue to support him in custody.

92 In respect of his religious development, the defendant described himself as being 'driven by ideology'.[39] His birth-family members, with the exception of his younger brother, did not have strong religious views. In Australia, particularly after encountering barriers to working, the defendant used his free time to read religious texts and engage in religious practices. He described himself as being primarily self-taught in his religion, which is of the Sunni branch of Islam. He has engaged in much self-education, and made it a priority to give his advice to others and spread the knowledge he had acquired. He claimed to be trusted by members of his family and the Muslim community more generally as a source of religious knowledge. Ms Dewson stated:

It is evident that Mr Benbrika is highly confident within his perceived understanding of Islam, and although he conceded that he makes mistakes within other realms of his life, he denied this was occurring within his religious understanding ('I make mistakes, but not when it comes to my religion'). This appears inconsistent with his assertions in relation to his offending behaviour, in that he mistakenly misinterpreted the information available to him. In my opinion, I would consider having realised that planning to commit a terrorist attack (in which innocent Australians may have been killed) was an incorrect interpretation of his religion would have been a significant mistake on Mr Benbrika's behalf. In my mind, his apparent religious grandiosity appears to have limited the development of any insight into this. It is unclear how Mr Benbrika plans to reconcile this difference and one which he likely needs to be processed with an appropriate religious representative. It doesn't appear that this has occurred to date.[40]

93 Ms Dewson set out the claim made to her by the defendant of his beliefs being challenged after reading a text by a scholar for whom he had great respect, Abdel Kader-Abdul Aziz in about 2014. The text indicated the defendant would be exempt from his religious obligation to avenge in Australia the perceived oppression of Muslims overseas because such actions would be contrary to the laws of this country. Ms Dewson stated that it was her impression that the defendant was condemning violence in Australia not as a result of any moral objection, but due to external constraints.

94 The defendant described his wife, whom he had married when he was 32, as being very religious, but denied that she had any knowledge in the past of his extreme views, and denied she harboured such beliefs herself. Ms Dewson opined that in view of the circumstances of his past offending when he had seemingly deceived her as to his offending, and the attitudes he held about gender roles, his wife, whatever her beliefs, would be unlikely to act as a protective factor to mitigate any offending in future.

95 Ms Dewson noted that in response to his intensifying extremist views in the lead up to the offending, the defendant became associated with people who harboured extremist views or tolerated his ideology, such connections being fostered in the local mosque. Information suggested that he had maintained contact with people considered unlikely to assist him to more moderate religious views. He did not take responsibility for the refusal of parole and showed a lack of insight into his risk and the potential impact of his behaviour upon others.

96 Ms Dewson expressed the view that the social connections of the defendant are highly significant to his risk of recidivism and should be a treatment target in future. In particular, he will need to challenge his belief that he is religiously obligated to provide support to people regardless of how concerning their beliefs are. She stated:

Given the entrenched beliefs in this regard, along with his desire to act as a nexus between youth at risk and religious leaders, this will likely require a significant shift to ameliorate any future risk.[41]

97 Ms Dewson considered the account of the defendant to suggest a history of depression, particularly during his period of solitary confinement between 2014 and 2016. He was on antidepressants at the time of their conversation.

98 After the interview, Ms Dewson requested that the defendant complete a number of psychometric tests. Through no fault of his own, the defendant was not able to access these tests prior to the first report being finalised.

99 In respect of his personality, Ms Dewson noted the defendant to present with grandiose sense-of-self, specifically in relation to his religious achievements. He displayed rigid thinking and presented with what she described as 'a pervasive pattern of maladaptive personality constructs, which appear to impact his functioning'.[42]

100 Discussing the index offending in a matter-of-fact way, the defendant admitted his offending constituted a 'very serious crime according to the laws of the land', asserting that he had accessed the 'right material' but had formed a 'wrong interpretation of appropriate studies'. His incarceration, he claimed, was noble, because he deserved it. He explained the rationale for his crimes. He felt aggrieved that Australian forces had been sent to Afghanistan to fight Muslims, and he believed he needed to do something about it. He said he felt compelled to:

avenge our brothers and punish the Government. And the people of Australia. They are part of them. They elect a government to act for them. And they then take soldiers into Iraq.[43]

101 He confirmed that in the past, he had considered that the use of violence to influence political decisions was 'OK'.[44]

102 Ms Dewson saw no sign of remorse from the defendant, although some regret for the personal impact of his offending upon himself and his family. He described his offending as 'just talking',[45] and presented with a lack of insight into the financial and social cost of his behaviour to the community.

103 Ms Dewson noted that the incarceration of the defendant had not been without incident, setting out a summary of his incidents in the custodial setting which have included some acts of verbal and physical aggression. The defendant had been classified as a 'Major Concerns' offender due to his interactions with other prisoners and concerns as to his ideology. She also noted the parole assessment report in 2017 which stated that:

the difficulties faced in monitoring this management plan in a custodial environment provides insight into challenges associated with monitoring conditions that could be placed on Mr Benbrika and influence he has over individuals in the community.[46]

104 In the circumstances, Ms Dewson considered the defendant's capacity to cooperate with supervision in the community to be untested and as a result, unknown.

105 Ms Dewson dealt with the defendant's involvement with clinicians from the MOU from 22 February 2017 and his participation in CISP. In the circumstances, it is unnecessary to set out Ms Dewson's summaries of these interactions, beyond what she had to say about the defendant's progress in CISP in the 12 months preceding the report:

...there is insufficient information in which to state with any confidence that Mr Benbrika has made significant progress in the past 12 months. That is not to say that progress hasn't been made, but rather that in my mind, any evidence of such hasn't been clearly communicated to date. With the caveat around the information in mind, of interest within the case notes, is Mr Benbrika's critical opinion of the United States and their Government, his criticism of the CISP consent form and conditions of participation, his general dismissal of the Australian Courts, his belief that Muslims living in a non-Muslim country is generally not permissible, and, that he has reportedly lost trust in many Sheikhs as a result of his incarceration and perceived treatment therein. Further, there is consistent information that Mr Benbrika plans to provide religious guidance to people upon release, which despite apparent feedback around this, appears to be dismissive of any risks associated with it.[47]

106 In respect of his plans for release, the defendant expressed a desire to catch up with his children and provide for himself first. As for the prospect of a CDO, he disputed its utility, describing himself as a changed man. He said, 'I want the Government to give me a chance. They can cut my wings. They can watch me. But give me a chance'. In that regard, Ms Dewson expressed her view that in light of the fact that the index offending occurred when the defendant knew himself to be under surveillance, little weight could be given to the protective capacity of the defendant being watched in moderating his behaviour and reducing risk.

107 In addition, Ms Dewson noted that in the interview, the defendant discussed his grievances against the Government and CV, the latter of whom had, according to him, treated him unfairly and engaged in subtle yet malicious acts against him.

108 Turning to her risk assessment of the defendant, Ms Dewson commenced by explaining the rationale of risk assessments generally, and the difference between static and dynamic factors. She sounded a note of caution about the practice of risk assessment. In particular, she noted that given the base rate of some offending is relatively low, the prediction of such behaviour is difficult. This is especially so in respect of violent extremism risk assessments, the base rates for such offending being 'distinctly low'.[48] Ms Dewson stated that whilst research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such structured assessments is moderate only. Therefore, decisions about risk are best made with multiple sources of data available, with a formal risk assessment being only part of the available data.

109 Ms Dewson used two instruments to measure risk in the case of the defendant. These were the Level of Service/Case Management Inventory ('LS/CMI') and the Violent Extremism Risk Assessment - Version 2 Revised ('VERA-2R'). Ms Dewson has been trained and accredited in the use of both tools, and is experienced in their implementation. She has used both in respect of assessments carried out for matters under the NSW high-risk offender legislation relating to terrorism offending.

110 The first tool mentioned is designed to measure risk of general offending. The results of the use of the LS/CMI indicated the defendant's risk rating for general offending is low.

111 As for the VERA-2R, Ms Dewson described it as a structured professional judgment protocol using relevant indicators for violent extremism. The indicators, she said, 'are supported empirically by research, and it uses mostly dynamic indicators that correspond to the process of radicalisation to extreme violence'.[49] Assessments are time-sensitive, with ratings based on the current state of the individual.

112 Ms Dewson set out summaries of the various indicators of the tool, along with the relevance of these to the situation of the defendant. Following her analysis of that material, she stated:

In considering all the information available to me, Mr Benbrika is assessed as a High risk of violent extremism. It is my opinion that Mr Benbrika continues to present a risk of violent extremism and that there is insufficient evidence to suggest that his treatment engagement and release plans are sufficient to ameliorate this recidivism risk. Specifically, these risks relate to his ongoing motivation to associate with people who hold extremist views and belief that supporting 'at risk' people as a religious obligation; grievances towards religious leaders within the community and the capacity for this to cause him to become religiously isolated; ongoing (if not increased) grievances towards Australian government (or sections of); continued rejection of parts of a democratic society; cognitive inflexibility; grandiose self-perception; and poor understanding and empathy for people outside of his group.[50]

Mr Benbrika is yet to progress through the classification system within custody, as a result of his aberrant behaviour and initial resistance for treatment engagement. He has consistently expressed confusion around his lack of progression, electing to externalise blame rather than self-reflecting and identifying his own shortcomings. This is likely caused by his understanding that all beliefs, behaviours and actions must be based on religious principles...

In the case that Mr Benbrika is released at this point, there are concerns that he will return to associating with people who hold extremist views, and in this context facilitate beliefs and attitudes that justify the use of violence...The primary concern for Mr Benbrika is his capacity to influence, indoctrinate and radicalise others who view him as a learned Islamic elder...Further, as it stands, it appears that his plans for release are much the same as the conditions in which he lived at the time of offending. Mr Benbrika has a history of fabricating/withholding information, which may make it difficult for his personal supports to identify and mitigate risk factors.[51]

113 In the section of her report entitled, 'Conclusion and recommendations', Ms Dewson opined:

Whilst Mr Benbrika formed religious views during childhood, his dedication to Islam intensified during adulthood and after moving to Australia at age 29. With time on his hands due to unemployment, he appears to have engaged in self-directed religious education, within which he began to adopt an extreme interpretation of his ideology. As a perceivably well-educated religious man, this appears to have facilitated a strong sense of entitlement and grandiosity, although it is possible that these personality characteristics were evident earlier in his history. Regardless, he appears to have drifted away from moderate Islam after having interpreted it his religious duty to avenge his brothers and punish the people and government of Australia. Through his study, he appears to have found sufficient religious evidence to support his interpretation of Islam, denouncing the beliefs of those who offer a differing opinion. In the absence of knowledge around contemporary Islam, it appears that he had difficulty reconciling these differences in interpretation, facilitating rigid beliefs.

Whilst Mr Benbrika has verbalised a commitment to abide by Australian laws in the future, motivation to abstain from offending is only one aspect of a complex puzzle that is criminal behaviour. He should be commended for the positive changes made thus far, although, in my opinion, continues to present with outstanding treatment needs, giving rise to his current risk rating.[52]

114 In response to one of the specific terms of reference which she was asked to address, namely, her assessment of the risk of the defendant committing a serious Part 5.3 offence if he is released in the community, Ms Dewson stated:

Mr Benbrika is assessed as a high risk of committing a serious offence should he be released into the community at the expiration of his sentence.[53]

115 Ms Dewson was asked to review additional information provided in respect of the defendant and prepare a further report. The additional material included transcripts of listening device conversations involving the defendant during the period of the index offending, correspondence between the defendant and the CPO, correspondence from Wissam Fattal, the contacts the defendant had had with persons of concern while in prison, and the results of psychometric testing referred to in her earlier report.

116 In respect of the psychometric testing, the results of the application of three measures were assessed. In summary, Ms Dewson was of the view that at the time of the assessment, the defendant did not present with any clinical phenomena indicative of acute psychopathology, although she did note that he was on antidepressants.

117 As for the other additional material provided to Ms Dewson, she assessed this in light of the indicators set out in the VERA-2R. Under the heading of 'Beliefs - Attitudes - Ideology', Ms Dewson stated that the additional information provided to her confirmed her initial assessment as to the ideology of the defendant. His rejection of democratic values and hostility towards Australia were further supported, including by his assertions contained in the 7.30 Report interview.

118 Under the heading 'Social, Context and Intention', Ms Dewson noted that whilst at the time of her initial report, there was little information to suggest that the defendant was willing and prepared to die for his cause, in the new material, he and his followers discussed that very possibility. In addition, the further material provided regarding the defendant's contact with people of concern led Ms Dewson to state:

In my opinion, there is clear evidence that Mr Benbrika had significant, and at times sustained, contact with people who ultimately became foreign fighters. It is likely that his denial of providing encouragement to these individuals reflects a significant lack of insight on his behalf and potentially suggests that he fails to understand or appreciate the influence he has over others. Alternatively, his failure to appropriately address this issue suggests that he fails to take responsibility for his past actions, which appear to have had potential to cause harm to the Australian people, government and foreign interests. Mr Benbrika himself acknowledged that he is often sought out by people for religious guidance, and without him understanding the significance of his influence over them, he is likely to be an ongoing risk to national security.[54]

119 As for the lack of apparent contact with the problematic individuals since 2015, such change appeared to be the result of his risks being managed in custody rather than the result of a change in his thinking. Ms Dewson believed there to be considerable evidence that the defendant maintained ongoing relationships, and influence within such relationships, with people who shared his violent ideology whilst he was in custody. That ceased as a result of external management rather than internalised change by him.

120 Under the heading 'History, Action and Capacity', Ms Dewson considered the new information she had received suggested that family members of the defendant likely held some pro-militant ideology. At the very least, his sons Oussama and Bakr seemingly maintained unhelpful associations, and would be unlikely to act as protective factors for the defendant's rehabilitation.

121 Under the heading of 'Protective Indicators', Ms Dewson focused on the CVEU intervention plans compiled from 2018 to 2020. In respect of the goal that the defendant actively accept and promote that violence is not an acceptable form of dialogue or progressing an agenda, in the reassessment in 2019, he was noted to have 'shown little change in this area and often appears resistant to change'.[55] He was also reported as being unwilling to denounce extremist groups because he did not have the material to review to justify such a response.

122 In respect of the needs assessments carried out over the years 2018 to 2020, Ms Dewson stated:

These scores suggest slightly more progress than is reflected in the associated word pictures summarised above. The positive change appears to have occurred across all five domains except for 'action orientation', which has consistently been his lowest-need (and potentially, therefore, have been less of a focus within intervention). In my mind, however, the major concern relates to Mr Benbrika (sic) inflexible ideology and unhealthy relationships, in which insufficient shift has been observed to ameliorate his risk.[56]

123 Ms Dewson noted the refusal of parole to the defendant on three occasions, and correspondence sent by him to the CPO. After the parole refusal in 2019, in response to questions posed by the Attorney-General's Department he identified that he had historically held the belief that 'waging war against non-Muslims is an obligation on myself and every other Muslim, wherever he lives and that the relation between Muslims and non-Muslims are fighting and not peace'.[57]

124 In summary, Ms Dewson noted the conclusions she had reached concerning the defendant in her first report. She said:

Having reviewed the current information, there is no evidence on which to justify a reduction in his high-risk rating. Rather, this information provides further insight into his behaviour around the time (sic) offending, his associations in custody, and his plans for release. Acknowledging his treatment participation and his progress made thus far, there is no evidence of full and sustained disengagement, nor is there any evidence of positive societal engagement...In my opinion, the primary risk relating to Mr Benbrika is his capacity to influence, indoctrinate and radicalise others by inciting violence domestically or abroad.[58]

Given Mr Benbrika's offending behaviour whilst knowingly under surveillance by authorities, his high risk of violent extremism, and his outstanding treatment needs, it is my opinion that his release into the community would pose a significant risk to the community and would be very difficult to manage from a supervisory perspective.[59]

126 Ms Dewson was asked to provide a further report annexing any score sheets or evidence sheets created or relied upon in her assessment, along with the VERA-2R manual. She was also asked to explain how these materials had been relied upon in her reports.

127 In this report, Ms Dewson provided further information about the workings of the VERA-2R, which she described as a structured professional judgment tool which combines empirical knowledge and professional judgment to identify risk levels. The tool is used to support professional judgment rather than replace it.

128 In explaining how she proceeded, Ms Dewson stated:

Mr Benbrika's risk was assessed as per the VERA-2R manual guidelines...[Redacted]:

a. [Redacted]

b. [Redacted]

c. [Redacted]

a. [Redacted]

b. [Redacted]

c. [Redacted]

For each of the individual indicators, I used my professional judgment to weigh available information and data. [Redacted].[60]

129 Ms Dewson gave sworn evidence before me in which she confirmed the truthfulness of the contents of her three reports. She was cross-examined by Mr Walters QC for the defendant.

130 Ms Dewson confirmed that the assessment of the defendant through the use of the VERA-2R was time sensitive, talking about the current situation. All of the information was looked at, showing a 'trajectory of behavioural change, if there is any, whether that's positive, negative or neutral'.[61] In explaining both static and dynamic factors, Ms Dewson observed that dynamic factors can themselves be broken down into stable and acute ones. Attitudes can be considered to be a stable dynamic factor.

131 Ms Dewson freely admitted in cross-examination that the VERA-2R is not a predictive tool, unlike those used for some other sorts of offending. There are no predictive tools for violent extremism. The VERA-2R is not an actuarial risk assessment. Rather, as she put it:

It's a framework that is used to organise the information which has been empirically linked within the research to terrorist behaviour. So it is a structured professional-judgment framework that - essentially, the answer to the referral question, in terms of is Mr Benbrika at risk of committing a violent extremist offence, does not lie within the VERA, it lies within the evidence, and the VERA is a structured professional-judgment framework that assists me to come to my clinical judgment of his risk.[62]

132 Ms Dewson pointed out that risk assessments come in all sorts of forms, but there are three main types within psychology. These are unstructured, where the clinician uses his or her intuition, or 'gut feeling', the structured professional judgment which is a combination of empirical knowledge about the topic combined with clinical expertise, and then an actuarial risk assessment. The current risk assessment conducted by her is of the structured professional judgment type, and still, she said, a formalised risk assessment.

133 Ms Dewson was taken through a number of the indicators relied upon in the test. She indicated that different types of evidence had been relied upon in support of the indicators used in the tool. In questioning the empirical support for VERA-2R, Mr Walters put to her that the approach for the development of the tool was to take people who have committed terrorist acts and try to understand what motivated them. Ms Dewson said this was the case in some respects, but other research was relied upon.

134 Ms Dewson indicated that insofar as the defendant had claimed that he had now learnt that it was not his responsibility and nor was it lawful to carry out violence in Australia against non-Muslims, she accepted what he told her. She got the impression that his change of heart was a quick process.

135 Ms Dewson stated her belief that the defendant was raised in a very patriarchal family. The way his own family dynamics had played out was that he was the leader and primary head figure of that family. As to the assertion in her first report of power imbalances in the family, that was her impression from having spoken to him about the family submitting to him, and of his rights where women were concerned.

136 She expressed the opinion that whilst the defendant had acknowledged the effect of the error of his thinking on his family, he did not appear to have reflected upon the more far-reaching implications of his behaviour for Australia and Australian people.

137 Ms Dewson agreed that her consideration of the MOU psychologists' case notes and the [redacted] were important in the formulation of her opinion.

138 Insofar as she had indicated earlier that she accepted the change of heart professed by the defendant, she needed to consider the possibility that he was being deceptive. She challenged him at various points about conflicting information, but did not raise concerns with him that he may have been being deceptive. This would have been unhelpful for rapport-building in the interview.

139 When asked about the source of the portion of her report in which she said that the defendant appeared to have residual beliefs that political violence is permissible in certain contexts, she said:

So first and foremost that comes from his - the way that he has responded to questions in terms of the violent jihad and, in my opinion, he hasn't actually denounced his belief in that; he has just said that he's no longer obligated to do that within Australia. So my understanding and my interpretation of that is that there are certain contexts, for example, outside of Australia where that may be permissible.[63]

140 When asked upon what she based her assertion that the defendant presented with rigid views on the strong demarcation between Muslims and the so-called kuffar, she said that there was evidence throughout the material that he isolated himself within the Muslim community and viewed himself as being different from the wider community.

141 In respect of the possession by the defendant of violent extremist material in custody, such material was both a static and a dynamic risk factor.

142 Ms Dewson was taken through a number of the indicators under the VERA-2R measure, and the way she had viewed them.

143 Whilst the claimed change in beliefs by the defendant may indicate he could be susceptible to indoctrination, she considered him more influential than susceptible to influence.

144 Asked about the defendant's wife, Ms Dewson stated that to her mind, she was not a protective factor. Rather, she was a neutral factor.

145 Ms Dewson was asked about the concern she had expressed as to the defendant being visited by individuals who later became foreign fighters. She agreed that she did not know what the defendant had discussed with these individuals. The fact there were 15 of them, however, was highly suspicious, and whether or not there was any information about what was discussed, the fact of the visits was still, to her mind, significant, as having contact with known extremists was indicated in the literature to be a risk factor in itself.

146 In a return to the topic of the basis of the VERA-2R tool, Ms Dewson accepted that a lot of the evidence underlying the development of the tool concerned people who had committed or attempted to commit terrorist acts or were part of terrorist organisations. The empirical research showed that persons with the indicators relied on in the test are more likely to be violent extremists.

147 Ms Dewson gave evidence about the 'base rate', which means the number of people who are assessed as being at risk who go on to commit an offence. She confirmed that the base rate for violent extremism is 'distinctively low', between 1.6 and 6 percent.[64] She accepted the assertions by Dr Davis in his report about the importance of the base rate, but limited this to actuarial risk assessment.

148 When it was put to Ms Dewson that she had used the VERA-2R in reaching her opinion that he was in the high-risk category, she said:

Again, maybe it's semantics, but I would say that I have used the evidence to come to that decision. I have used the VERA as a framework to come to that decision, in terms of clinical judgment.[65]

149 She was asked whether in saying something was a risk, she was making a form of prediction and she said:

No actuarial prediction. I'm saying that he presents with a significant amount of evidence relevant to violent extremism literature to suggest that he may be at risk of committing a violent extremist offence, but I'm not saying the likelihood of that in relation to any statistics.[66]

150 She declined, in the absence of actuarial statistics, to say whether the defendant would be more or less likely to re-offend than indicated by the base rate.

151 Returning to the mechanism of the VERA-2R, Ms Dewson indicated that no prior weighting is given to the various items. It is essentially a process forcing the assessor to think through all of the considerations and place appropriate weight on each of them. As she said, 'it's clinical judgment at the end in order to determine what the individual's risk rating is. And so in this case it's my clinical judgment that he's high risk'.[67]

152 The use of the VERA-2R was not a matter of ticking boxes, but it was a process which forced her to think about each of the indicators and then consider the evidence applicable to that indicator, thereby organising her analysis. [Redacted]. At the end, it was her final clinical judgment which led to her conclusion.

153 Ms Dewson indicated that whilst it does not have predictive validity, the VERA-2R has a number of other sorts of validity which she outlined.

154 She stated that whilst the tool did not have predictive validity, that did not mean that it was not a useful tool in the way it was used. It allowed her as an assessor to think about the process, and think about where the defendant might be in the radicalisation process. When asked how the use of the tool differed from a gut-feeling, she said:

Because the actual items are based on evidence. So the entire tool might not have predictive validity because of the nature of the population that it's on, but gut feeling would be just having a talk with somebody and saying, 'I feel as though that's - they're at risk.' This is looking at the things that are known to be related through the evidence to be related with violent extremist behaviours.[68]

155 Ms Dewson disputed that all that could be told from the use of the tool was that the defendant was a high-risk of being a known terrorist. The test was time-sensitive. She had looked at dynamic factors as well as the current context, and in considering all of that information, she considered him to be a risk.

156 Ms Dewson indicated that she had not considered the risk posed by the defendant in the event of his being deported to Algeria.

157 In re-examination, Ms Dewson informed the Court that she had provided risk assessments on six occasions in connection with applications in NSW under the Terrorism (High Risk Offenders) Act 2017 (NSW) ('the THRO Act'). Five times, she was a court-appointed expert. The other time, she was appointed by the State. In four of those assessments, she had relied upon the VERA-2R, not having been trained in the tool at the time of her first two assessments. Only once had she assessed the particular individual as posing a high risk.

158 Dr Mischel is a forensic psychologist with 13 years' experience in prison and probationary settings. She has specialised, amongst other things, in risk assessment. She has been trained in a number of risk assessment tools. Since 2012, she has been a Senior Psychologist with CV's Major Offenders Unit. Her role there involves the forensic risk assessment and clinical intervention in respect of high-risk offenders. Her role has seen her provide advice to key stakeholders including the Adult Parole Board, Victoria Police and the BOIV. Her role includes management and provision of risk assessments and interventions for those convicted of violent extremist and terrorism offences, and identifying and addressing violent extremist radicalisation in prison. She has an active role in the Department of Justice and Community Safety's Countering Violent Extremism response. For the past four years, Dr Mischel has focused her professional training in the area of countering violent extremism. She provides training on risk assessment and case management of violent extremists. She is a specialised assessor in violent extremism assessments using tools including the VERA-2R, in which she was trained by the author of the tool.

159 Dr Mischel has a dual role in respect of the defendant, first, as a treating clinician since 2016, and secondly, having been asked by the plaintiff to carry out a risk assessment for the purpose of this application.

160 Dr Mischel based her report on clinical sessions she had had with the defendant since 23 February 2016, [redacted] which she attended, a clinical interview with him on 11 June 2020, and a large volume of other material provided to her which she set out in the report.

161 The clinical sessions occurred in the context of her role as Senior Psychologist with the MOU. At the time of her first report, she described the defendant as her ongoing client. In respect of the clinical interview, the defendant consented to that taking place, in the knowledge that it would form part of the material relied upon for her assessment of him.

162 In respect of the clinical interview, Dr Mischel stated:

He provided detailed responses to questions that he felt comfortable answering, such as detailing what has changed in his ideological views whilst in custody. However, when asked about his beliefs at the time of his arrest or about his thoughts on global terrorist organisations or attacks, he was evasive. He stated 'why would I comment' and asked why the writer was trying to get him 'into trouble'. Mr Benbrika maintained his stance that because this is where we live, he would only comment on situations within Australia.

When discussing the circumstances around his offence, Mr Benbrika displayed rigidity in his thinking and some minimisation of his extremist ideology. He repeatedly focused on his point of contention that the allegations he was planning to commit a terrorist attack against a known target including the Melbourne Cricket Ground, Casino or a nuclear plant were false. He did not want to elaborate or discuss what he had been teaching that would warrant his arrest and conviction, however he acknowledged that it was extremist and promoted violence. He explained that it is 'history' and 'in the past' and expressed frustration that questions were asked about his offence. He stated that he does not have a grievance with the Australian government for his conviction and the time he has spent in custody.

During the interview, Mr Benbrika was able to provide evidence of the change in his ideology regarding his prior belief and promotion of violent jihad against Australia and his current stance that, as a person living within in Australia, he is not permitted to inflict or promote harm to other Australians. He explained that this shift in thinking had occurred in 2014 when he read in one of his books, this concept which he maintained was new to him. He attributed the change in his belief to one scholar's view but noted that the CISP Imams had shown him other religious scholars that also supported this view.[69]

163 In summarising the clinical sessions, Dr Mischel noted that whilst normally softly spoken and calm, the defendant would become animated and agitated when challenged in respect of his statements about religion or the perceived injustices he had faced. As she put it:

Mr Benbrika did not respond well to being challenged and this appeared to be related to a narcissistic personality style, which includes grandiosity, inflated sense of self-importance, need for excessive admiration and sensitivity to real or perceived criticism.[70]

164 Dr Mischel stated that at times during the clinical sessions, it was difficult to engage the defendant in discussions beyond his frustration and angst towards CV and the Australian government.

165 He displayed significant distress throughout the parole application process. With each refusal, his mental state deteriorated, and he became fearful of being kept in custody under a post-sentence order. Parole refusals and media attention to his index offending seemingly perpetuated his belief that the government did not want to consider anything positive about him and would only focus on his past wrongdoings. Dr Mischel stated:

Throughout clinical sessions Mr Benbrika presented with significant cognitive rigidity. Mr Benbrika displays an evasiveness when asked about his opinions and feelings regarding other situations, both personal and those occurring in the wider community. He responds to most questions and discussions using anecdotes to illustrate his point. It can be difficult to ascertain how Mr Benbrika directly or personally feels about situations, because he uses examples from religious text or analogies, frequently beginning sentences with 'for example'.[71]

166 In terms of his own account as to his index offending, Dr Mischel stated:

Throughout clinical sessions, when asked about his offending, Mr Benbrika maintained he did not believe he committed any offence. He requested that an official judge - one that adhered to Sharia Law - be asked to explain to him what offence he committed. He stated that he abides by Islamic law, not Australian Law.

At the time of the clinical interview, Mr Benbrika's attitude towards his offending had shifted. He was reluctant to discuss his behaviour at the time of his offending. He questioned the necessity of discussing it, staying 'who cares now' and questioned whether the writer was attempting to get him into trouble.

In the discussion he was willing to have about his offending, he acknowledged that some of his behaviours resulted in his conviction and he took responsibility for these. Mr Benbrika stated he taught from the Quran that 'if you harm a Muslim, a Muslim will harm you'. He taught the Muslim men that it was their obligation to defend Islam. Australians were going to Iraq to attack Muslims and therefore the Australian government was an enemy of Islam. Further, anyone who supported the Australian government, by any means including not stopping them, were part of the government and an enemy as well. He stated that 'if you do not stop the government, you have the same consequences'.[72]

167 In setting out the psychosocial history of the defendant, Dr Mischel observed that the seven children of the defendant had been raised in a strict Islamic environment where cultural and religious values were strongly adhered to. The defendant told her that his children would never disobey his instructions. He maintained he does not force his beliefs upon them, but they believe that what he says is in accordance with the religion. Dr Mischel stated:

Information indicates that despite almost 15 years of incarceration, Mr Benbrika continues to hold a dominant role in the family, whereby he continues to be actively involved in decision making processes. In this context, information indicates that he has consistently provided his eldest sons with instructions to carry out on his behalf; these instructions relate to the family and other personal affairs related to the Islamic community.[73]

168 The defendant explained to Dr Mischel that due to his inability to find employment in Australia, he focused on his religious studies. In time, he became recognised as a learned person within the Islamic community, teaching at various institutions. His attitudes, however, brought him into conflict with areas of the community, leading to his exclusion from some areas.

169 Dr Mischel summarised the progress of the defendant in custody, including his interaction with CISP and in the clinical sessions she conducted. In the circumstances, it is unnecessary to summarise those matters.

170 She noted that his refusal in [redacted] to comment on controversial topics or global acts of terrorism mirrored his conduct during clinical sessions. He routinely justified such refusal on the basis that without knowing the groups or the context in which they had acted, he could not provide commentary.

171 When discussing the role and actions of Al Shabbab in Somalia, 'Mr Benbrika stated that their actions were morally justified as they were enforcing Islamic practice and religiously motivated violence was justified'.[74]

172 When asked if he would report terrorism activity if he were made aware of it:

Mr Benbrika indicated that his allegiance was to the Muslim people and he would not report acts of terror or violent extremism if he were made aware of them, despite the potential loss of life that could ensue. He quoted in response the Hadith of a companion of the Prophet that says, 'An informant will not go to paradise'.[75]

173 The defendant indicated to Dr Mischel his desire to lead a law-abiding life. He acknowledged that he believed that people would continue to approach him for spiritual guidance. He expressed frustration about the restrictions he believed would be placed upon him in the community. He believed he could do good in the community, helping younger people who were pursuing the incorrect path in Islam.

174 Turning to the topic of her risk assessment, Dr Mischel acknowledged that it is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend.

The best that can be offered is an estimate that is anchored in empirical literature specifying features associated with risk, and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment. [76]

When compared to risk assessment for general, violent and sexual offending behaviours, the process of risk assessment of violent extremism is comparatively new. Thus, as knowledge and application continue to grow and develop, there will be ongoing review and refinement of assessment approaches. However, what we do know is that researchers have cautioned against the use of traditional general or violent offending risk assessment tools, as they have limited applicability when used with terrorists, whose actions are often influenced by or take place in the context of groups.

The frequency of violent extremism is significantly less than ordinary crime. The sample size of people who actually engage in terrorist acts will never be large enough to allow the statistical power needed to determine the optimal quantitative combination of risk factor scores, or to generate a final estimate of risk that does not rely in substantial part, on clinical judgment. Therefore, any prediction of future engagement in acts of violent extremism does not have the statistical basis common in other ordinary criminal offending risk assessment tools. The assessment of risk of violent extremism cannot be anchored in statistical probabilities and subsequently a numerical score cannot be provided.

Rather, the overall risk judgement is based on the clinician's assessment of the available information at the time of the assessment, assisted by guidelines derived from scientific and professional knowledge in the field. This approach is known as the Structured Professional Judgment (SPJ) approach. The SPJ approach, which requires expertise and training, is now universally recognised as good assessment practice and has been recommended for use with the assessment of extremist violence.[77]

176 Dr Mischel explained the rationale behind her use of the VERA-2R as follows:

The Violent Extremist Risk Assessment approach, known by the acronym VERA was initially developed in 2009 to meet the needs for a standardised and scientific approach to risk assessment for violent extremism. The revised VERA-2R, was informed by the empirical experience obtained by application of the VERA tool and experts in the field of violent extremism and terrorism.

The VERA-2R utilises a SPJ methodology, deemed the most appropriate approach available to assess the dynamic nature of violent extremism risk. The VERA-2R includes an empirically justifiable set of dynamic risk indicators for violent extremism, that are evaluated on an individual basis. The risk assessment results produce an in-depth understanding of the vulnerable individual, including a final estimation of overall risk of harm and the nature of that harm, which can be used to develop specialised and individualised risk management approaches.

Whilst initially designed for use with offenders with a past or current charge or conviction of violent extremism, politically motivated violence or terrorism-related offences, the VERA-2R is also applicable to persons who have been identified as a 'possible concern' and referred to intervention programs.[78]

177 Under the heading of 'Beliefs, Attitudes and Ideology', Dr Mischel noted:

Mr Benbrika acknowledges that he believes in a doctrine that dictates a violent struggle against the enemies of Islam: the kuffar...

Mr Benbrika reported that at the time of his offence he taught what was directly written in the Quran, that 'if you harm a Muslim, a Muslim will harm you'. he taught Muslim men that it was their obligation to defend Islam. Australians were going to Iraq to attack Muslims and therefore the Australian government was an enemy of Islam. Further, anyone who supported the Australian government, by any means including not stopping them, were part of the government and an enemy as well. [79]

178 Dr Mischel noted that the defendant had been vocal in these views in the early years of his sentence, and seemingly held onto them until at least 2014. Since 2017, his commitment to an ideology that justifies violence has been explored in multiple forums. It had been made clear to the defendant that in order to be considered for parole, he would need to denounce violent jihad. Dr Mischel stated:

Mr Benbrika stated he cannot denounce violent jihad, as he did not recognise this concept within Islam. He stated that it is merely jihad and as it is a fundamental part of his religion, to deny this part would equate to denying all of Islam. He stated that 'even the Mufti of Australia would say that could never happen'. He stated that jihad has 2 meanings; one in Arabic and one religious. Mr Benbrika explained that in Arabic, jihad means to 'do effort or struggle'. The religious meaning is to 'fight the disbeliever that harms you'. He stated that it is the only meaning of religious jihad. He further explained this in terms of 'do the same like they did to you'. Mr Benbrika stated that no one can deny the verse, as it is written in the Quran, quoting, 'whoever transgresses you, transgress him as he transgresses you'.

Mr Benbrika highlighted the difference between the use of violence in Australia and in an Islamic State. He has further differentiated the use of violence and 'religious violence' and has commented that to further religion it is justifiable. He believes that if violence furthers Islam it is justified...In recent years Mr Benbrika has been more cautious in his expression of his ideology and his perceived injustices against Islam. When questioned by correctional staff about his views of global terrorism events, Mr Benbrika would refrain from providing his opinion, choosing to frequently respond that he was not positioned in this conflict area and could therefore not comment.

Mr Benbrika stated that despite his inability to denounce violent jihad, he is not a threat to the people of Australia. He has indicated his change in ideology through reading the book by Dr Abdul Qadir Ibn Abdul Aziz and his understanding that there is a 'covenant and commitment to peace' when someone has been granted citizenship, residency or temporary visa to a country. This aims to keep the peace between Muslims and non-Muslims. He has maintained that this new understanding prevents him from harming or promoting harm within Australia. Mr Benbrika has indicated in clinical and mentoring sessions that there are constraints to the use of violence.

Given this view is not reflective of past views and has been provided by Mr Benbrika as a response to Parole consideration, the legitimacy of this view has been questioned and could be a form of impression management. Further evidence that contradicts these statements include his acknowledgement in mentoring sessions that he would not inform on a Muslim if he was aware they were planning to engage in an act of terrorism that would result in deaths within Australia. He cited a Hadith that condemns 'informants' from jannah (Paradise).[80]

179 Dr Mischel noted that the defendant has reported different views as to his ideology at various times, including in respect of his belief in Sharia law, his views regarding the democratic process, and his attitude towards Australia.

180 Under the heading 'Social Context and Intention', Dr Mischel expressed the opinion:

Mr Benbrika is not susceptible to the influence or beliefs of others. This remains an important indicator of risk, because it demonstrates significant challenges in trying to engage Mr Benbrika to promote non-extremist religious practices. Mr Benbrika's behaviour prior to his incarceration and whilst in custody clearly indicates that he sees himself as a religious leader and that he is able to exert influence over others.

Evidence of Mr Benbrika's influence over others has been noted prior to and throughout his incarceration. He was the leader the jemaah and members of the jemaah have continued to visit him throughout his incarceration. He has frequently contested a Corrections Victoria decision to restrict the volume of visitors who had no known previous association with Mr Benbrika. He maintained that members of the Islamic community sought his counsel due to his knowledge. He has referred to members of the community as 'his followers'. Mr Benbrika has maintained that he does not promote this following but acknowledged he is unlikely to refuse their contact. Moreover, this admiration from others appears to contribute to his sense of self-worth.

Mr Benbrika has strong convictions regarding his ability to influence others. He used the 2014 Sydney Lindt café siege as an example, stating that he would have been able to walk into the café and convince Man Monis to cease the siege. He stated he would have been able to explain to him why his religion stipulates that he needs to stop. Mr Benbrika maintains he could use his influence and ability to teach others to help assist people who may be on the path to extremism.[81]

181 Under the heading, 'History, Action and Capacity", Dr Mischel stated:

As the leader of the jemaah, Mr Benbrika is convicted of having directed the group in terrorist training. He is known to have directed the group to engage in acts of violent jihad, to encourage the exploration of violent extremist materials and the need for weapons training.

Mr Benbrika has organisational skills, access to resources necessary for the planning and execution of a violent extremist act. Until his Parole outcome in November 2017, Mr Benbrika had maintained contact with his co-offenders, corresponded with other prisoners convicted of terrorism related offences and has known associates that are considered to be part of the violent extremist cohort. Due to the lengthy period of his incarceration it is difficult to ascertain whether Mr Benbrika continues to have access to funding or sources of help. However, due to his standing as a religious leader to a cohort of the Islamic community, it is possible that Mr Benbrika would have access or be able to raise funds from this community[82].

182 Under the heading, 'Commitment and Motivation', Dr Mischel stated:

Mr Benbrika is motivated by religious obligation and moral superiority.

All of Mr Benbrika's actions and beliefs are derived from his religious ideology and his commitment to the word of Allah. He is dismissive of the views of non-believers of Islam and other interpretations of Islam. He justified that he was morally required to support ideologically motivated violence and that his interpretation of Islam has a moral superiority over all other religions and beliefs.

Mr Benbrika has made it clear he cannot denounce violent jihad as it is a fundamental part of Islam. Hence, while he has not indicated a current intention to act violently and has stated that he would not act or promote violence within Australia, his ideology includes the justification for religiously motivated violence.

Mr Benbrika maintains that in order to change someone's belief, it must be replaced with a new belief. To do this you must give them evidence directly from the Quran. Mr Benbrika stated during a clinical session in 2016 that in the entire time he has been in Australia he has never come across anyone who was able to challenge or change one of his beliefs. He also stated that whilst in Australia, he has never met any Imam who has knowledge of Islam that surpasses his own. As such, he believes himself to be ideologically, religiously and morally superior to all others. His religious beliefs include an obligation to guide and influence others to adopt his doctrine.

Mr Benbrika had stated that the title of Sheikh has been bestowed upon him by the community who seek him out for his guidance and religious counsel. He stated that it doesn't matter where he will live, people from his community will come to his (sic) for spiritual guidance. He acknowledged that he could turn them away but does not think this is a realistic strategy. He stated that he wouldn't want them to feel rejected by him, given they look to him for guidance.[83]

183 Under the heading, 'Protective Indicators', Dr Mischel noted that at a clinical session in August 2018, the defendant stated that there was only one way to interpret Islam and that it was against Allah's will to reinterpret Islam in a different form. She discussed the defendant's reliance on a particular text as leading to his reinterpretation of his past views as to violence, by virtue of a covenant with this country to do no harm. He claimed to have had this book prior to being in custody, but to have only read and understood it afterwards. He was shocked at his realisation.

184 In dealing with the defendant's concept of the enemy, Dr Mischel stated:

Mr Benbrika's concept of the enemy relates to all kuffar. He believes the Muslim community has been under attack by Western governments. All people within these countries that support their government, either overtly or by their omission to try and stop them, were subsequently enemies of Islam. He has not changed his understanding of this concept, but now stipulates that the covenant made when living within a country surpasses the obligation to harm the kuffar and enemies within the country. Mr Benbrika stated that previously he had taken literal interpretations of Quranic verses, focusing on only one path, 'without knowing that there is a right and there is a left'.

Mr Benbrika has been presented with varying opportunities to discuss his ideological beliefs including his views on global religiously motivated violence, however he predominately refuses to provide his view on contentious subjects. Mr Benbrika reported that whilst he previously believed he was meant to 'defend' his religion and 'take revenge', Mr Benbrika now maintains that controversial issues are 'not (his) business'. The shifts in Mr Benbrika's willingness to discuss his religious ideology and provide commentary on world events does not provide any evidence for a shift in his religious ideology, but rather appears to be a function of his awareness of the consequences for openly expressing his religious views.

Mr Benbrika has not demonstrated a reinterpretation of his ideological views regarding religiously motivated violence. Rather, he has reported gaining a new understanding that prevents him from teaching or promoting the use of violence within the country he resides, being Australia. Without understanding his views regarding global issues, it is unclear to what degree this new understanding would mitigate his risk of promoting others to engage in religiously motivated violence internationally.

Mr Benbrika's pathway to participation in any program to address his offending behaviour or extremist ideology has been problematic. His negative engagement style and unwillingness to be challenged on his ideological views resulted in a long period in custody where he was not engaged in therapeutic programs aimed at addressing his ideology. Since commencing CISP in 2018 he has engaged appropriately and has demonstrated some willingness to explore extremist ideological thought, however, has continued to avoid discussing or being challenged on controversial topics.

Mr Benbrika appears to have limited access to supports in the community who can challenge his ideological beliefs. However, the CISP has indicated the intention and willingness to remain engaged with Mr Benbrika, if he chooses to remain engaged in the program post release. Mr Benbrika's associates in the community and his family are believed to adhere to the same ideology as Mr Benbrika and see him as their religious leader. Hence their ability to challenge his views regarding the use of violence is likely to be limited.[84]

185 Making mention of the parole refusals and the concerns held about the defendant's continued association with persons of interest, Dr Mischel noted that the defendant had ceased contact with such individuals, but opined that he was not self-motivated to do so, and displayed little insight into how these associations could relate to his own risk. The decreased contact with known extremists 'does not appear to warrant genuine protection or mitigation of risk'.[85]

186 In respect of the defendant's inclination to educate others as to his views, Dr Mischel stated:

There continue to be concerns regarding Mr Benbrika's ability to influence other members of the community. He staunchly maintains that he has never sought out students or followers and that over the years, and to this day, it is other people that approach him for his knowledge. However, it is also clear that he derives his own self-worth and self-esteem from this role as religious leader. His belief about his own level of knowledge over any other Sheikh in Melbourne and his own pride are likely to impede his intentions to send his supporters elsewhere to seek the counsel of a different Sheikh. He stated that should people continue to approach him for religious counsel, he would try and avoid questions that bring him harm.[86]

187 In the section of her report entitled, 'Summary and Risk Judgment', Dr Mischel indicated that in her view, the defendant's narcissistic personality traits and zealous nature likely predisposed him to take on a leadership role in his religion. He enjoyed that position and it contributed to his sense of self-worth. His past behaviour clearly indicates that he sees himself as a religious leader able to expert influence over others. He was the leader of a jeemah whose purpose was to provide direction to the group about engaging in violent jihad. His actions and beliefs are derived from his religious ideology and his belief in jihad, she considered, was a religious obligation to him. She went on to say:

He believes in a doctrine that dictates a violent struggle against the enemies of Islam. He believes that his interpretation of Islam has a moral superiority over all other religions and beliefs. He has presented with a rigid and narrow interpretation of Islam, that focuses on scholars from periods of historical conflict and he dismisses more contemporary scholars.

Despite the strength of his ideological beliefs, there is no evidence that Mr Benbrika intends to engage in acts of violence himself. Mr Benbrika's risk is predominately related to the influence he could exert over others in providing them guidance.[87]

188 Dr Mischel considered that the defendants past attitude to global terrorism was that it was:

a retaliation against the allies of the United States for involving themselves in Iraq and Syria. He has rejected democratic societal values and believes in an Islamic State and Sharia Law. In recent years he has been more cautious around his public expression of these grievances. When questioned about his ideology, he remains committed to his interpretation of Islam, however, asserts that he is not a risk to the safety of Australians.

Mr Benbrika continues to maintain his belief in his perceived victimisation by the Australian government, Victoria Police and Corrections Victoria. He believes he has been treated unjustly and he has numerous examples of this, some of which include being denied access to religious materials, visitors and the treatment of his family members. Because of the serious nature of his convictions he also believes that others are unwilling to afford him future opportunities.[88]

189 In respect of his engagement with CISP, Dr Mischel stated:

Attempts were made by the CISP to engage Mr Benbrika in a treatment program since 2012. The genuineness of Mr Benbrika's motivation to engage in the program was questioned and they reported his negative engagement style, including hostility and verbal aggression, and willingness to be challenged on religious and personal views impacted his engagement. It appears that Mr Benbrika was extrinsically motivated to engage in the program to increase his chance of parole and release. Since re-commencing the program in 2018, Mr Benbrika has presented with significant improvement in his interpersonal interaction and engagement. However, he continues to present with a limited focus on Islamic texts and history that promote a narrow and combative interpretation of Islam. Further, he has expressed fluctuating and often contradictory views regarding his beliefs about Sharia Law, democracy and his interpretation of who is the enemy of Islam. The lack of consistency in Mr Benbrika's statements may be indicative of ongoing reinterpretation of his ideology or as a result of his attempts to positively impression manage those around him.

The shifts in Mr Benbrika's willingness to discuss his religious ideology and provide commentary on world events does not appear to provide evidence for a shift in his religious ideology, but rather appears to be a function of his awareness of the consequences for him of openly expressing his religious views.[89]

190 Towards the conclusion of her Summary and Risk Judgment, Dr Mischel stated:

Mr Benbrika's primary extremist violence indicators are related to his commitment to a[n] extreme Islamic ideology. He is supportive of ideological and religiously motivated violence to defend Islam from its enemies. He is motivated by perceived religious and moral obligation. His key extremist risk indicators also relate to his history and ongoing association with identified extremists. Mr Benbrika's risk relates to his ability to influence others as a religious leader within his Muslim community. Mr Benbrika is not susceptible to the influence or beliefs of others. This is an important indicator of risk, because it demonstrates significant challenges in trying to engage Mr Benbrika to promote non-extremist religious practices.

Mr Benbrika appears to have limited protective factors to mitigate his risk of engaging in conduct that promotes violent extremism. He continues to espouse the use of religious violence as a means to perpetuate Islam. His dialogue around the permissibility to use religious violence in Australia has shifted, however, he continues to express support for religious violence in conflict areas, including Somalia.

Whilst the ability for his family or community members to challenge Mr Benbrika on his beliefs remains unlikely, members of the Australian Islamic Community have written to offer their support for him. Mr Benbrika can continue to engage with CISP post sentence to provide him support.

In consideration of Mr Benbrika's attitudes, behaviours, willing followers and the risk indicators, he is considered to hold a high likelihood of future extremist behaviour that could promote and incite others in a violent extremist ideology.[90]

191 In dealing specifically with matters required to be addressed in her report to assess the defendant's risk of committing a serious Part 5.3 offence under Division 105A of the Code, Dr Mischel stated:

Using a structured professional judgement approach, Mr Benbrika appears to fall within the High-risk category of committing a serious Part 5.3 offence.

Mr Benbrika's primary extremist violence indicators are related to his commitment to a[n] extreme Islamic ideology. He is supportive of ideological and religiously motivated violence to defend Islam from its enemies. He is motivated by perceived religious and moral obligation. His key extremist risk indicators also relate to his history and ongoing association with identified extremists. Mr Benbrika's risk relates to his ability to influence others as a religious leader within his Muslim community. Mr Benbrika is not susceptible to the influence or beliefs of others. This is an important indicator of risk, because it demonstrates significant challenges in trying to engage Mr Benbrika to promote non-extremist religious practices.[91]

192 Dr Mischel observed that the defendant had not, whilst in custody, been observed to hold or self-report any intent to act violently, but she considered that the absence of statements promoting violent extremism is not necessarily an indication of changed beliefs, as opposed to indicative of an awareness of the consequences of expressing such views.

193 Dr Mischel considered that the defendant had displayed limited genuine protective factors. She went on to state:

As such, it remains a risk that Mr Benbrika may in the future either intentionally or recklessly provide religious guidance to those who intend to engage in acts of violent extremism. The extensions of criminal responsibility provided for in Part 2.4 of the Criminal Code apply (that the offence may be committed without the offender personally carrying out the act of violence).[92]

194 In dealing with the effects of CISP involvement on the defendant, Dr Mischel considered in the circumstances that it is difficult to assess whether the program has had any success in assisting him to disengage from his extremist beliefs.

195 In terms of factors which might increase or decrease any risk posed, she stated:

In consideration of Mr Benbrika's offence history and current risk assessment, if returned into the community, likely risk scenarios could occur if he is in a position where he can mentor or provide religious instruction to other Muslims and encourage them to adopt more radicalised views of Islam. These views could include condoning or encouraging antigovernment sentiments and the use of violence to support jihad.[93]

196 Dr Mishel provided a further report in response to additional material provided to her, as had been the case with Ms Dewson. In response to the question whether any of the additional material changed any of her opinions expressed in her earlier report, she stated:

The documents provided further understanding of Mr Benbrika's attitudes and behaviours prior to his arrest. The transcripts of listening devices recordings and transcript of the 7:30 Report interview provide empirical evidence of Mr Benbrika's support for religiously motivated violence and his engagement with a cohort of individuals willing to act out that violence. Mr Benbrika's encouraged his followers to inflict maximum damage and his statements condone violence against civilians, including women and children.

Of concern are the statements that Mr Benbrika made to his associates regarding the skill in lying and 'remember your lies'. Further, the statements that he made regarding responding to questions and having the right questions asked suggests that he has an ability to manipulate his responses for social desirability however the appearance of what he is saying can be intentionally deceiving. An example of this (sic) when he was asked whether it was permissible to kill innocent people, but not being asked whether he thought Australian civilians were innocent.

Mr Benbrika has displayed an ability to minimise his own extremist views and the contradictions in his statements throughout his program participation suggests that any self-report regarding the reinterpretation of his ideology should be cautiously considered.

Mr Benbrika has stated that he would not promote the use of violence within Australia. It remains unclear whether Australian laws or Sharia laws would dictate his future behaviour.

Mr Benbrika's influence over other Muslim individuals is evident in many documents, including the transcripts of listening devices recordings, his letters with Mr Fattal and the Table of Foreign Fighter Associates.

Mr Benbrika demonstrated some protective factors in his willingness to change. In the time since his first engagement with the [redacted] in 2012, where he was reported to be condescending and argumentative, his engagement style has shown significant improvements.

Ideologically, the CISP reporting suggests that he has been resistant to changing his religious views and continues to display a reluctance to accept the religious guidance of the Imams on the program.

Mr Benbrika's belief in his own religious knowledge and desire to continue to mentor others remains a risk factor of him promoting extremist views.

In consideration of the material's provided, the overall risk rating for Mr Benbrika remains high.[94]

197 Dr Mischel gave sworn evidence before me. She confirmed that the contents of her three reports were true and correct.

198 Dr Mischel explained the context in which her clinical interview of the defendant took place. It was to carry out a risk assessment to be provided to the CPO. She had also been aware for some years that it was possible there may be a future application for a CDO. She informed the defendant during the interview of these matters and of the prospect of a report from her being used for that purpose.

199 Dr Mischel was cross-examined in some detail as to her ongoing relationship with the defendant over the period since early 2016. The relationship started as a clinical one when she replaced his previous clinician. Because of the forensic setting in which the relationship commenced where she was working with the MOU, the limits of confidentiality were explained to the defendant. He was aware from the start what her role was. She informed him throughout their involvement of the provision from time to time of reports and copies of her notes to the CPO.

200 Dr Mischel was challenged as to her reliance on the defendant's emphasis of the lack of any target for his offending as evidence of rigidity in his thinking. She was asked about her account in her first report based on Atik's evidence, and her statement in the report, 'Information indicated that this evidence was accepted at court', in light of the fact that the sentencing judge made it clear he did not accept the evidence. Dr Mischel said that she might have intended to indicate that the evidence had been 'submitted' in court. It was not her intention to mislead. Indeed, she considered that someone who wanted to determine what evidence was and was not accepted would resort to the entire sentencing reasons. When it was put to her that the particular section of her report was 'seriously misleading', she said she took that criticism on board.

201 When asked upon what she based her expressed opinion that the defendant, after 15 years of incarceration, continues to hold a dominant role in the family, she said that in discussions with him, he had made it clear. She relied on other information as well, but she had never met the defendant's wife or any of his children.

202 Dr Mischel was asked about the sources of information behind various other statements of opinion set out in the report.

203 Mr Walters questioned Dr Mischel about the defendant's asserted resistance to being drawn in detail on controversial topics such as overseas terror attacks and the like. She did not agree that the personality type of the defendant as touched on in the second report of Ms Dewson would make such shutting down likely in the face of challenge. Dr Mischel made it clear that she had not conducted any formal assessment of personality, but said that she had conducted a clinical assessment of his personality throughout her years of treating him. Furthermore, notwithstanding the defendant's unwillingness to be drawn on global events and the like, there were times when he had been open to discussing his own ideology and beliefs.

204 Dr Mischel was challenged about the fact that she had not had direct contact with the psychiatrist who treated the defendant for depression. She indicated that treatment of the depression, by that time, was not part of her role. She did, however, have ongoing discussions with psychiatric nurses, and did have knowledge of his psychiatric condition. She said she would not disagree with the diagnosis of major depression reached by Dr Zimmerman.

205 When it was put to her that a report of the nature of that prepared by Dr Zimmerman was relevant to her interactions with the defendant, she said that she had a very clearly defined role, which changed over time. She commenced by focusing on his psychological wellbeing. The defendant was resistant to engagement in clinical sessions on that basis. Her goals quickly changed, moving towards a behavioural management focus with a view to helping to get him out of the Olearia management unit and back into a protection unit. This would itself aid in his psychological wellbeing. In a later phase of their relationship, Dr Mischel saw her role as to assist in the defendant's engagement style and treatment readiness to try to ensure successful treatment and engagement with CISP. From the time her role switched to one of behavioural management, she ceased to view herself as the defendant's treating clinician. At every stage of her involvement with the defendant, Dr Mischel said that she was completely transparent with him about her role, and told him each time she was asked to provide documentation.

206 When it was put to Dr Mischel that it was totally reasonable for the defendant to be sceptical about the genuine nature of the sessions she engaged in with him due to the lack of confidentiality in the process, she disagreed.

207 Dr Mischel was asked about the various groups with which she had shared information about the defendant. These were all groups within CV, other than Victoria Police, with who she engaged at the request of the defendant in order to try to facilitate his admission into CISP.

208 As far as parole was concerned, this was her first experience with a Commonwealth parole process.

209 In respect of the RADAR scores, ultimately the scores were determined at the end of the panel by the Imams.

210 In respect of the VERA-2R, Dr Mischel said that she is now a trainer in the tool, having completed her own training in 2017. She was trained by the developer herself. She said she is familiar with other forms of risk assessment and is trained in a number of risk assessment tools.

211 Dr Mischel said she would not discuss predictive risk assessment with the violent extremist cohort. It was put to her that with violent extremist offending, the rate of recidivism is quite low, in the vicinity of 2.9 percent, and perhaps as low as 1.6 percent. She did not agree, and gave evidence about academic and other research pointing to higher rates, up to 60 percent or, in the case of unpublished studies, even 80 percent. She identified a number of such studies. She said that journal and other articles would be sent to her email address every day.

212 Dr Mischel agreed that the base rate is an important feature in understanding what the risk of violent extremism is. She said that the base rate for violent extremism is a much broader concept than just recidivism, in terms of re-arrest and re-conviction. She would consider re-engagement in the activities associated with violent extremism as well. This is a broader definition than that relied on in much of the literature. She said that she could not provide a statistical breakdown of the proportion of persons who re-engaged who had actually re-offended.

213 In respect of her assessment of the risk posed by the defendant as high following use of the VERA-2R tool, the rating itself, she said, was less important than the narrative concerning the particular risk posed by the defendant. Where the risk categorisation was concerned, what was being looked at was the likelihood of an individual engaging in violent extremist conduct, and the severity of the act which might be engaged in. The classification of high risk for the defendant was not a statistical statement, and nor was it a comparison of the risk he posed relative to other individuals. The assessment did involve some measure of predictive exercise. She agreed it could be likened to the proposition that violent extremist offending was a realistic possibility. She stated:

I have not compared Nacer to any other - anybody else within that cohort; I have looked at his past behaviour, at his current functioning, and indicated what risks - the risks for him to engage in the behaviour that I specified and the narrative that was specified around that behaviour and looked at it as part of the case prioritisation and how much intervention is required for this individual and for this - and that's why that rating is considered high.[95]

214 In respect of the VERA indicators, Dr Mischel said that they are derived from both empirical and theoretical research around individuals who have engaged in violent extremism. The indicators are known indicators for violent extremism, but persons who have some of the indicators are not all violent extremists. The indicators are more likely to be associated with people who engage in violent extremism.

215 Asked about the question of age, Dr Mischel said that was not a factor she had considered centrally in her risk assessment. Nor would the majority of her colleagues consider age to be a major factor to consider in such assessments. She said she was not familiar with literature suggesting that as people age, they are less likely to commit violent extremist offences. She did indicate that she would consider the age of a person 'as part of the nuance and the understanding and case formulation',[96] but age was neither a risk factor nor a protective factor. Even if offending may be less likely when someone aged, that did not mean that increasing age should be viewed as a protective factor. It is not. She would not comment on the question of whether the risk of violent extremism would decrease with increasing age. There is insufficient evidence upon which to reach a conclusion. For some people, increased age may escalate their risk, for others, it may decrease risk.

216 Dr Mischel was cross-examined about a number of the articles talking about particular recidivism rates. She stated that some of the qualifications of the articles emphasised the fact that reporting on base rates should be done very cautiously because it is a complex area. It would not be logical to use any of the particular articles to assess a terrorism base rate.

217 In respect of her personal involvement in the defendant's [redacted], a point was reached where she considered that despite resistance from some quarters, it was important for the sessions to be conducted in Arabic. She does not speak Arabic and therefore her attendance largely ceased.

218 In re-examination, Dr Mischel was taken to a passage in an article which was the subject of earlier cross-examination. The passage read, 'The negative relationship between age and re-engagement is tempered by ideological commitment'. She said she agreed that there may be a number of mitigating factors in considering whether age had an impact on somebody's risk of re-offending.

219 Asked about the specific risk posed by the defendant, Dr Mischel stated:

the specific risk that has been identified for him was around his providing guidance or religious instructions to individuals who seek his counsel that may be considered extremist and it would promote a violent interpretation of Jihad.[97]

220 The defendant relied on two reports of Professor Mohamad Abdalla AM,[98] dated 18 October 2020[99] and 4 December 2020.[100] The second of these was tendered over objection from the plaintiff, due to its timing and content.

221 Principally, the defendant relied on the reports and sworn evidence of Dr Michael Davis.

222 Dr Davis, a consultant forensic psychologist, was engaged on behalf of the defendant to carry out a psychological assessment of the defendant. He did so in the context of knowledge that the defendant was the subject of an application for a CDO. His understanding was that:

you are particularly interested in my opinion regarding the validity of terrorism risk assessment tools, the impact of relying on those tools, the VERA-2R instrument utilised by other experts in this matter, and any relevant considerations for assessing Mr. Benbrika's risk of committing a serious Part 5.3 offence.

223 Dr Davis is a highly qualified expert in the field of risk assessment.

224 He conducted a very lengthy video-link interview with the defendant on 14 October 2020, a telephone interview with one of the [redacted], a telephone conversation with the defendant's wife, psychological testing, and used two risk assessment tools. He also had access to a large volume of other material which was provided to him, most of which was provided to him before he conducted the interview. In the circumstances of the dual role of Dr Mischel, he did not seek to speak to her, but he did have regard to her reports, and the reports of Ms Dewson.

225 Dr Davis set out a summary of the family background, education and employment history, relationship history and medical history of the defendant. I will not set out that material. Under the heading of 'Psychiatric History', he noted that the defendant agreed that others sometimes viewed him as stubborn, because, as he put it, 'things for example ...(are) always according to my faith'.[101] When asked about his endorsement of an article during psychological testing indicating that he often had thoughts which to him made sense, but which others said were strange, he said, 'It's my faith, because of their ignorance...in the religion'.[102] The defendant said that he was pretty good at getting people to do what he wants, 'not in a bad way, always in good ways', and when asked how he did so, he said, 'word of God they trust'.[103]

226 Under the heading of 'Social Circle', Dr Davis noted that the defendant said he was no longer being visited by many of those who previously visited him, and nor was he writing letters as he previously had done, because of the actions of CV and the Attorney-General. He went on to say:

When asked if he thought people in his community may feel betrayed by the fact that he was proselytising to them but was ultimately convicted of terrorism offences, Mr. Benbrika replied 'not really, no... because... this was what my religion told me to do... but after that... 2013, 2014, I discovered that what I was doing was out of order, and I've been guided by scholars... what I did before was not correct.'[104]

227 Dealing with the 'Offending and Criminal History', Dr Davis stated:

When asked if he could now see that the things he was preaching in the early 2000s were radical, Mr. Benbrika replied 'of course I do.' In regard to when these radical Islamic beliefs began, he stated 'when the government decided to send the troops to Iraq and Afghanistan... do my job... do what needs to be done.' When asked how he looks back on such beliefs, Mr. Benbrika replied 'I cannot change the past... thinking about it, how to go back...'[105]

228 Dr Davis noted a listening device conversation indicated that the defendant had asked a follower in 2004 whether he was 'ready to give your life to the paradise maidens'. He asked the defendant whether he still believed in the concept of 72 virgins waiting in paradise after death, and he replied, 'Yes, yes'.[106]

229 When asked during the interview whether he had changed his view about what he had said in the past, namely, that he abides by Islamic law, not Australian law, he said he had changed his view as a result of coming, by chance upon the writings of a particular scholar who proclaimed that a Muslim entering the country was forbidden from betraying the new country which had offered him a visa. He said he was shocked at this realisation. He said, 'I am a person who is driven by my ideology...driven by the first belief and he's driving me to the second belief'.[107] He said he regretted driving his followers to offending. It was his fault. Had he known then what he knew now, he would not have done what he did.

230 Dr Davis indicated that when asked what he would do in the community if approached by people wanting advice regarding committing violence, he would steer them to his new beliefs. When asked if he would inform authorities if he learnt of a terrorist plot, he said he would try to convince the actors to stop. Dr Davis opined:

It appeared that Mr. Benbrika was trying to find a balance between his newfound ideology and following his previous rigid rule that he should never inform against fellow Muslims. Nonetheless, when asked if this was still a rule, he stated that 'it has changed' concomitantly with his change in belief.[108]

The available file information indicated that Mr. Benbrika's failure to denounce violent jihad has caused concern. During our assessment interview he stated that he cannot renounce violent jihad because this would be like rejecting prayer or fasting. Nonetheless, he stated that 'if you're talking about violence, I reject it.' Mr. Benbrika explained that jihad has two meanings, a linguistic one and a religious one. The linguistic definition is to 'make efforts.' The religious meaning involves 'fighting the disbelievers.' Mr. Benbrika reported that his new ideology means that 'you shouldn't fight the disbelievers when you are in their land... (I) won't denounce, but won't engage, in their country, when you are part of them... I tried to explain this to the government, but (they believe) it's because he's stubborn.'[109]

232 In respect of what Dr Davis described as the defendant's 'oscillating views' on the appropriateness of Muslims voting in democratic elections, he said that when asked if he would ever vote, the defendant said that religiously he was still unconvinced that Muslims were allowed to do so.

233 As to whether he would be able to refrain from being a teacher or leader in the community, he noted that the defendant said, 'people when they want something they ask me...leader, I didn't ask for this...it's normal for us'.[110]

234 In dealing with offence-specific treatment, and in particular the CISP program, the defendant was critical of the early attempts to get him to engage, but positive about his time in the program since re-engaging in 2018.

235 Dr Davis set out the results of psychological testing carried out on the defendant. The Paulhus Deception Scales ('PDS') was administered to ascertain whether the defendant was either deliberately trying to manage the impression Dr Davis formed or was engaging in 'non-effortful positive distortion in the form of self-deception'.[111] In setting out the results, Dr Davis stated:

His pattern of responding on the PDS revealed no self-deceptive enhancement as this was in the 'average' range when compared with Canadian prison populations. However, impression management was in the 'very much above average' range. This combination is associated with individuals who are aware of their shortcomings, but who want to appear publicly acceptable. This can be a healthy combination, but it does mean that other test results may be overly positive.

Given the context of the current assessment, some degree of impression management was not unexpected. However, the magnitude of Mr. Benbrika's score on the impression management scale was above the threshold that would suggest that other self-report psychological tests were 'probably invalid.' Accordingly, other tests were interpreted with some caution as Mr. Benbrika's responses may have under-represented the extent and degree of his difficulties, particularly in regard to social and moral matters.[112]

236 The results of the Personality Assessment Inventory ('PAI') indicated that the defendant tended to portray himself in a consistently negative or pathological manner. His responses indicated a combination of features which were atypical. The results of the test should be viewed with these facts in mind. The testing indicated the defendant is probably seen by others as something of a perfectionist. He is likely to be fairly rigid and to follow personal guidelines for conduct in an inflexible and unyielding manner. There were a number of problematic personality features noted. He may be moody and overly sensitive, prone to emotional instability and mood changes, as well as feelings of emptiness and a poor sense of identity. He will tend to be self-centred and pragmatic in his interactions with others. His attitude about himself may vary from states of pessimism and self-doubt to periods of relative self-confidence and self-satisfaction. In conclusion, Dr Davis noted:

In summary, and keeping in mind the degree of non-effortful negative responding, Mr. Benbrika's PAI results revealed a range of difficulties including depressed mood, suicidality, anxiety, obsessive rigidity, post-traumatic symptoms, physical health concerns, variable mood, and a number of maladaptive personality features.[113]

237 The Personality Inventory for DSM-5 Facete Brief Form was also administered to further assess the defendant's personality functioning. Dr Davis considered the degree of non-effortful negative responding found on the PAI was very likely to be present in this test as well, so the results should be viewed with caution. The results of this test were consistent with those from the PAI.

238 The Trauma Symptom Inventory - 2 was administered. The defendant's pattern of responding revealed a considerable elevation on the atypical response scale which evaluates the respondent's tendency to over-endorse trauma-related symptoms. In the circumstances, the results were deemed invalid and no interpretation took place.

239 In terms of his mental status examination of the defendant, Dr Davis noted his often tangential pattern of thought, and the fact that he was decidedly rigid in his views. The content of his thoughts revealed what Dr Davis called 'characterological grandiosity' and some mild suspiciousness regarding CV and the government in general. The defendant appeared to be of average intelligence.

240 In setting out his diagnostic opinion and formulation, Dr Davis stated:

Mr. Benbrika presents as a somewhat grandiose, yet polite, man with rapidly shifting, albeit somewhat shallow and restricted, emotional expression and rigidity of thought. Psychological testing suggested impression management in regard to social and moral matters, along with non-effortful negative responding in regard to psychiatric symptoms. Testing also suggested a range of difficulties including depressed mood, suicidality, anxiety, obsessive rigidity, post-traumatic symptoms, physical health concerns, variable mood, and a number of maladaptive personality features; including egocentricity, obsessiveness, anxiousness, and anhedonia.[114]

241 Dr Davis diagnosed the defendant with Major Depressive Disorder (recurrent episode, moderate severity, with anxious distress), Panic Disorder, and a number of features which may, in future, warrant a diagnosis of Post-Traumatic Stress Disorder. He went on to state:

It is my opinion that, underlying Mr. Benbrika's difficulties with depressed mood and anxiety, he has a damaged personality structure that has been complicated by his abusive childhood that was characterised by poor attachments. His preoccupation with orderliness, perfectionism, rigidity, and stubbornness meet formal criteria for Obsessive-Compulsive Personality Disorder. In addition, Mr. Benbrika has some prominent narcissistic (grandiosity, believes he is unique, reduced empathy), and to a lesser extent, borderline (emotional instability, recurrent suicidal ideation) and histrionic (uncomfortable unless the centre of attention, theatrical, rapidly shifting emotions) personality features that do not meet full criteria for either narcissistic, borderline, or histrionic personality disorder.

It is my opinion that Mr. Benbrika's offending reflected an interaction between his personality disorder and the development of radical jihadist beliefs when he was unable to obtain employment in his chosen field. Indeed, he was working in positions considerably beneath his level of Algerian education and was unsuccessful with these employers. While admittedly speculative, he would appear to have immersed himself in the Islamic literature whilst feeling ineffectual and ultimately embraced radical jihadist beliefs. Becoming a self-styled Sheik fed into his need for admiration and attention and the strict rules of fundamentalism satisfied his need for rigidity and order. Mr. Benbrika likely experienced a great deal of satisfaction as he developed the jemaah and had his followers revere him.

In recent years Mr. Benbrika has claimed to have changed his belief system to a more mainstream version of Islam after reading a particularly persuasive Islamic scholar. There is some, perhaps understandable, scepticism about this sudden change amongst those involved in his treatment and management. Nonetheless, he has been reasonably consistent in his narrative recently, such that it is plausible that he has shifted his need for rigidity from one interpretation of Islam to another. He is clearly someone who needs explicit rules to guide his life and will not accept anything that is not rooted in Islam, preferably with some seemingly explicit link to the Prophet's teachings in the Koran. Mr. Benbrika's narrative suggests that he engages in considerable mental gymnastics in order to keep his various rules coherent. For example, he cannot bring himself to disavow jihad, but does indicate that he is not interested in violence and would not commit violent acts within the country that accepted him due to his new belief system.

242 Turning to the topic of risk assessment, Dr Davis emphasised the superiority of actuarial or structured risk assessments over unstructured clinical opinions. In explaining the various types of tools, he stated:

Actuarial instruments involve a mechanical combination of risk factors that place an individual offender into a risk category that can be compared to the average general, sexual, or violent offender. Structured instruments include a set of professional guidelines that guide the evaluator through a series of risk factors and considerations prior to making an informed clinical judgment of risk.[115]

243 Dr Davis used two tools in assessing risk in this case. The first was the Hare Psychopathy Checklist-Revised (PCL-R). This is not actually a risk assessment instrument, but rather, one designed to identify traits of psychopathy, which may be linked to recidivism. The results of this test indicated that the defendant has very few features of psychopathy. He is not psychopathic and does not possess personality features associated with offending of a particularly callous nature. An elevation on the interpersonal facet reflected, said Dr Davis, the narcissistic personality features mentioned earlier.

244 The other test used was the Level of Service/Risk, Need, Responsivity (LS/RNR). This is a standardised offender classification scale that covers the majority of the best-established predictors of general criminal conduct. The defendant's total score on the scale indicated that his risk for general criminal recidivism is considerably lower than that of the average offender.

245 Neither of the tools mentioned above is designed to assess the risk of violent extremism recidivism. Dr Davis expressed the opinion:

There is currently no validated way of assessing the risk of recidivism for terrorism offences. This is because the base-rate of recidivism is far too low to enable such assessments to occur without an overwhelming number of false positives. Moreover, none of the extant tools have been validated in terms of their predictive validity.[116]

246 Dr Davis dealt with some of the literature indicating that recidivism rates for terrorism offenders are 'remarkably low'. They are far below those for common criminals, he said. He considered some possible explanations for this. He said that with recidivism rates somewhere between 1.6 and 2.9 percent, based on a recent study in the United States with a large sample size and an overview of studies in Europe, this makes risk assessment exceedingly difficult.[117]

247 Dr Davis pondered a hypothetical example of a risk assessment tool with a high degree of accuracy where 80 percent of those who were violent and those who were not were accurately predicted. Even with a relatively high base rate of violence and a measure with good accuracy, there would still be a large number of errors in prediction. He then posited an example based on the base rate of terrorism recidivism. He said this illustrated how fraught with error such an exercise would be, even if one could develop a risk assessment measure with the same degree of accuracy. The result would be an unacceptably high level of false results deeming individuals a high risk. Dr Davis pointed out that no tool for the assessment of terrorism recidivism could come anywhere near 80 percent accuracy.

248 Dr Davis stated that the predictive validity of the currently available tools is simply not known.

249 With such a low base rate of recidivism, Dr Davis likened the risk assessment of terrorism offenders to that for female sex offenders. He stated:

It is my opinion that there is no accurate way of placing Mr. Benbrika into a category of risk for terrorism recidivism and I am not entirely sure how one would define risk categories even if one attempted this task. I am certainly not saying that Mr. Benbrika poses a low risk, or that he should not be monitored upon his eventual release to the community (whenever that may occur). Rather, I am simply saying that his risk cannot be validly assessed. Perhaps the best that can be said is that there is nothing blatantly obvious in the material available to me that would indicate that Mr. Benbrika is not one of the 97-98 percent of terrorism offenders who do not commit a further offence of that nature.[118]

250 In answering a number of referral questions provided to him, Dr Davis stated that there are not currently any properly validated tools for the assessment of risk of future terrorism offending. There is nothing in the literature, he considered, to suggest that any of the available tools can accurately differentiate recidivists from non-recidivists, let alone, different categories of offence.

251 In respect of the VERA-2R and the TRAP-18, their reliability, that is, the ability for different users to come to similar conclusions having used the instrument, is not in question. The difficulty is in respect of predictive validity. This has not been demonstrated. As a result, the extremely low base rate for recidivism means that such tools 'will identify far more false positives than true positives'.[119]

252 Whilst it may be informative to use the VERA-2R to provide treatment, management and support to offenders in the community, 'the costs of a false positive if such tools are used solely to incarcerate or detain are different for the overwhelming numbers of offenders'. [120]

253 Asked to assess the methods applied by the two experts for the plaintiff, Dr Davis said that both had conducted seemingly thorough assessments and produced comprehensive reports, although he expressed some disquiet at the dual role of Dr Mischel.

254 In respect of the VERA-2R, Dr Davis said he was not necessarily critical of the development of the tool, but the problem was it has no current validation beyond face validity and 'remarkably little in the way of peer-reviewed publications for an instrument that is ostensibly being used by so many practitioners'. As he put it, 'at best, it should be viewed as a series of tentative hypotheses awaiting research of some description'. He noted the ongoing efforts of the authors to develop an instrument with some utility, but went on to opine:

no matter how good it may eventually be found to be in identifying terrorism offenders that pose an elevated risk relative to other terrorism offenders, the extremely low base rate for reoffending means that there is no way to avoid the fact that the vast majority of people deemed to be high risk will not commit another offence.[121]

255 In further criticism of the work of Ms Dewson and Dr Mischel, Dr Davis stated that to his mind, neither had defined what was meant by 'high risk'.

256 Dr Davis stated that in his view, there is currently no valid way of identifying whether the defendant or any other terrorism offender poses a high risk of committing another terrorism offence. This was because of the low base rate for such offending. He went on to state:

the best that I believe can be attempted in Mr. Benbrika's case is to refer to the factors that were present in his life when he committed his one previous offence, such as stated ideological beliefs in violent extremist behaviour, explicitly described grievances against the Australian government's actions in Muslim-majority countries, commencing a new jemaah, starting a sandooq for a small group, support for violent jihadist movements in general, and preaching to impressionable followers. These features may provide an admittedly speculative indication as to whether risk of inciting others into extremist behaviour is imminent. I am not currently convinced that imminent offending is likely, regardless of what the unknowable level of risk is over time.[122]

257 In making it clear that he was unable to carry out a risk assessment of the defendant, Dr Davis stated:

As noted above, it is my opinion as an expert in risk assessment that it is not possible to place Mr. Benbrika into a risk category for committing a serious Part 5.3 offence. Even if there was a validated tool for such an assessment, the base- rate of recidivism is so low that the vast majority of even those deemed "high risk" would not commit another offence. Moreover, there is nothing blatant in the information available to me that would indicate that Mr. Benbrika is not one of the 97-98 percent of terrorism offenders who do not commit another such offence. There is certainly nothing to suggest that there is an imminent risk of such offending.

258 The second report of Dr Davis was provided largely in response to matters that arose during the evidence of Ms Dewson and Dr Mischel, during which evidence Dr Davis was present in Court, but also in respect of file information which Dr Davis had been provided since his first report.

259 Mr Walters sought the leave of the Court for the admission of this report into evidence. Ms Orr objected to the grant of leave. In the end, for reasons which I briefly announced at the time, I granted leave, and the report was tendered as Exhibit 5.

260 Dr Davis considered the studies relied upon by Dr Mischel in her evidence as to base rates for terrorism offenders. He expressed the opinion that the studies in question are 'outliers' with important methodological weaknesses and elaborated on that proposition.[123]

261 In respect of the VERA-2R, Dr Davis had recently been provided with the manual for the tool. He noted the dearth of published studies concerning the VERA-2R, and was critical of the level of structure provided in the manual to operators. Furthermore, no guidance was provided as to how to make the final judgment of low, moderate or high risk, and no definition provided as to the meaning of each classification. Dr Davis noted that neither Ms Dewson nor Dr Mischel had been able to provide definitions in their evidence.

262 On the question of the types of validity other than predictive validity, Dr Davis considered the limitations of each of these.

263 Returning to the question of the provision of risk categories for extremist offenders, Dr Davis concluded:

I remain of the opinion that providing a risk category for extremist offenders is extremely difficult, if not impossible, because of the very low base rate for reoffending. Indeed, as noted in my previous report, one would have to reference something very blatant in terms of a risk factor or factors to form an opinion that a terrorist is not one of the 97-98 percent of extremist offenders who do not go on to commit another such offence. I have not observed any such factor in my assessment of Mr. Benbrika or in the reports and evidence of my colleagues in this matter.[124]

264 Dr Davis gave sworn evidence before me in which he attested to the truthfulness of the contents of each of his reports.

265 At the commencement of cross-examination, Ms Orr had the witness confirm a number of things stated to him by the defendant in their interview. These included that the only thing keeping him alive was his faith, which he put above even his family, that he was driven by ideology, that he considered himself to be an Imam or Sheikh, that he derived a sense of satisfaction from his status as a Sheikh, which, according to Dr Davis, feeds his narcissism, that he was known throughout the community and considered to be special, that he considered others to be ignorant where religion is concerned, and that he could easily get others to do what he wants, because, 'word of God, they trust'.

266 Dr Davis opined that the defendant doesn't really have many opinions of his own. He very much looks for guidance in the Islamic literature.

267 The defendant did not think that people would feel betrayed by him, because what he did was what his religion told him to do. He had professed admiration for Osama bin Laden. When asked how he looked back at his beliefs at the time of the offending, he said he could not change the past.

268 Dr Davis was asked about the refusal of the defendant to renounce violent jihad. They had had a lot of discussion about that, and Dr Davis expanded on his view as to the mental gymnastics in which the defendant was required to engage to keep all the rules by which he now lived in order. Dr Davis was aware that the sentencing judge had found that there was only one meaning in the mind of the defendant as to jihad, but the defendant now claimed there were two meanings, and the one he now applied was the religious, rather than the linguistic one. This meaning he refused to renounce, but he made it clear he would not engage in violence in this country.

269 In respect of the change of heart as to the carrying out of jihad in this county resulting from reading a particular work in 2014, Dr Davis considered 'it took him a few years to really internalise it'.[125] Dr Davis said of the claim made by the defendant:

as I've said, I think it's plausible that he's taken that on board, I don't think anyone can tell whether or not he actually has, but I think it's plausible he has and it's certainly from my reading of all the material it didn't happen overnight.[126]

270 Dr Davis was cross-examined on the topic of risk assessments. The reiterated that there were three methods of risk assessment. He confirmed there are no actuarial risk assessments for violent extremism, and that he believed there never would be. As for the VERA tool, when asked if it was a structured professional judgment tool, Dr Davis said that it was described as one, but it was unlike other such tools which offer considerably more structure than 'just looking at some risk factors'.[127] It only partially met the description of a structured professional judgment tool, satisfying the first part of the requirements of such tools, but not the second. He elaborated on this concept, describing the VERA-2R as being like the first editions of all the structured tools which came out in the mid-90s.

271 Dr Davis reiterated his view that there is no valid way of assessing extremist risk. When asked as to his own personal experience, he conceded that he had never assessed the risk that a person would engage in violent extremism before. Nor had he ever interviewed a person who had committed a terrorist offence in the past. He had received no training in that field, although not for want of trying where the VERA-2R was concerned. He went on to say that he had actually received training in the TRAP-18 tool two years ago. He had never administered it, however. Indeed, he would consider it unethical to do so, the tool being unvalidated. As for the VERA-2R, even had he been trained in it, he would not have used it in the current task for the same reason.

272 He confirmed that there was, to his mind, no way of assessing the defendant's risk of terrorist offending, unless there was something so blatant that it could overcome the fact that roughly 96 to 98 percent of people who have committed terrorist offences will not do so again. If there was something as blatant as making plans and telling the assessor of the plans, 'then I think there would be a common sense override'.[128]

273 Ms Orr put to Dr Davis that it is not impossible to assess the risk of extremist re-offending, only difficult, in response to which the witness said, 'Okay, well, I don't know what the definitions are and I was hoping I'd learn...no one has been able to define what risk levels mean in this sphere'.[129]

274 The things which made such risk assessments difficult are the low base rates and the fact that no tool has been validated for the task, so it is unknown whether the tools in use can differentiate between recidivist and non-recidivist. Dr Davis was familiar with the work of an American scholar, Dr Salim Shahan who said that to say that something is difficult to do, that is, achieving high levels of accuracy in predicting events with very low base rates, is not the same as saying it is impossible. Dr Shahan had been referring to predicting general violence. In the current field, the base rate is so low that Dr Davis could not see how predictions could be made.

275 Ms Orr took Dr Davis to the contention set out in his report that there was nothing 'blatantly obvious' in the available material that would indicate that the defendant was not one of the high percentage of people who would not reoffend. Dr Davis denied that looking for something blatantly obvious was an approach he took, but did concede that he did look to see if there was anything blatantly obvious, which would be very rare.

276 He was asked about the study of Beardsley and Beech from 2013 into the VERA tool. The authors found that the majority of factors seemed to be relevant and important to risk assessment of violent extremists. Dr Davis did not consider that the conclusion entirely flows from their results.

277 Dr Davis was asked about the anamnestic approach touched on in his first report. Dr Davis said he took that approach to try to answer the question under the legislation about any factors which may increase or decrease risk. He said that if the factors mentioned, or some of them, would be present in the defendant's life upon his release from prison, that would potentially be relevant to his risk of reoffending.

278 Looking at the matters considered in that respect, it was put to Dr Davis that the defendant possesses the same ideological belief in support of violent jihad as was the case at the time of the offending. Dr Davis refuted this contention, stating that the defendant has 'got this weird thing where he believes in jihad but not being violent'.[130] He stated that 'it takes mental gymnastics to get your head around it'. He confirmed that the defendant seemingly maintains his grievances against the Australian government, in spite of no longer stating them explicitly. On top of any other grievances, he is aggrieved about still being in prison and aggrieved at the government's decision to seek a CDO. He maintains his desire to preach to impressionable followers.

279 Dr Davis described the process of looking at these factors as being the last part of a structured professional judgment approach, which he did in the absence of a tool with valid risk factors in it.

280 He described imminence of offending as 'one relevant output of a risk assessment'.[131] He agreed that a person could pose a significant risk of re-offending even in circumstances where such reoffending might not be imminent. Furthermore, the nature of possible reoffending is an important matter in assessing risk. The severity of the harm that would flow also needs to be part of the final opinion.

281 Dr Davis was asked whether he accepted that if the defendant again set up a terrorist organisation and directed its members to plan for the execution of a terrorist act, that would give rise to a grave risk to the Australian community. He said that it could, although it did not on the last occasion. He reiterated that the nature of the risk and the severity of the harm that would flow from it are relevant.

282 In respect of the defendant's involvement with CISP, in the past and possibly the future, he is a challenging participant, with his personality disorder making him difficult to talk to. He had not met his goals, and Dr Davis saw the advantage in his continuing to take part in CISP. Further, Dr Davis conceded that the apparent unwillingness of the defendant to engage with CISP upon release is a potential concern.

283 Another concern is the ongoing desire of the defendant to proselytise in the community, and the limitations on what orders can achieve in preventing that occurring. On this score, Dr Davis said:

I think most of it comes down to whether what he's saying about his change of religious beliefs is true and, as I've said, I think it's plausible but I most certainly am not going to say that it's - that I - that I've accepted that that's what's happened. So, if he is telling people about this new approach where he can't be violent towards people within Australia, I'm less concerned but I don't know if we'll be able to tell if that's what he's saying or whether he's referring to things he said 15 years ago.[132]

284 In respect of the desirability of the defendant having a stable life with employment and the development of meaningful leisure activities, Dr Davis agreed that there is nothing to indicate that the defendant would find employment upon his release, or develop any leisure activities. As to his relationship with his wife, Dr Davis stated that there is nothing to suggest that she would ever challenge him, in spite of being a strong person herself. The fact of his two older sons being of national security concern was not a positive thing, and nor was his speaking to them in code, although the meaning of this was not known.

285 In re-examination, Dr Davis indicated that consistent with what had been noted by Dr Mischel, he found the defendant to be quite grandiose and narcissistic. The assessment of his personality carried out by Dr Davis was fundamental to the assessment of risk.

286 When asked whether the VERA-2R conforms to the requirements of a structured professional judgment tool, he said, 'I think at best it looks like a set of hypotheses awaiting validation'.[133] He expressed surprise at the way the risk factors are developed, which differs from other tools. He reiterated the danger of using unvalidated tools, which he likened to the Barnum effect.[134] He said that the VERA-2R and the TRAP-18 'identify whether someone has committed a terrorist offence, not whether they're going to do it again'.[135] He elaborated on his problem with the conclusion to the Beardsley and Beech article. He elaborated on his point that such tests as the VERA-2R may be useful and appropriate for use in public health pursuits where the large number of false positives may not matter.

287 In respect of the professed change in the beliefs of the defendant about violent jihad in this country, Dr Davis repeated that he could only say that to his mind it was plausible that his views had changed. It was really an empirical question and he said that he could understand the scepticism.

288 Dr Davis explained that when he was talking about a risk being imminent, he was meaning something occurring within 'the first couple of weeks' of release.

289 In response to some questions from me at the end of his evidence, Dr Davis confirmed that aside from his concerns about the VERA-2R tool, he actually believes that there is no way of assessing extremist risk absent 'something blatant'.[136] If a particular convicted terrorist made it clear that he maintained his extreme views of the past which would make it appropriate to carry out violence, Dr Davis would consider it to be 'pretty blatant'. You would not need to be a forensic psychologist to identify the importance of such things. The best that could be said, however, would that the person's risk 'is probably higher than the base rate at that point'.[137] He also mentioned other language which might be more acceptable, such as that there was a 'high concern'.[138]

290 The plaintiff's case was supported by the written Outline of Opening Submissions, by the very detailed oral opening presented by Ms Orr, and by her closing submissions. The written outline was supplemented by three annexures upon which strong reliance was placed. In her overall submissions, Ms Orr canvassed, amongst other things, all of the matters outlined in s 105A.8(1) of the Code. I will not deal with all of those matters in these reasons.

291 As a preliminary matter, Ms Orr took issue with the description in the written submissions on behalf of the defendant, and the implication in the oral submissions of Mr Walters, that the standard of proof in this case, reflected by the requirement of satisfaction to a high degree of probability of the unacceptable risk posed by the defendant, is akin to the criminal standard. Ms Orr submitted that s 105A.13(1) makes it clear that the civil standard applies, in the manner required by s 140 of the Evidence Act 2008 (Vic). The subject matter of these proceedings is of course, serious, and Ms Orr accepted that the civil standard applicable would be subject to the reasoning in Briginshaw v Briginshaw ('Briginshaw').[139]

292 In respect of the unacceptable risk requirement, the standard of proof is subject to further modification, but in no way should it be viewed as being akin to the criminal standard. There is no warrant for that. As for the less restrictive measures part of the test, it is significant, submitted Ms Orr, that Parliament did not attach the 'high degree of probability' standard to that. The ordinary civil standard applies, subject to its Briginshaw underpinnings.

293 Ms Orr made clear in her opening address that four fundamental propositions lie at the heart of the plaintiff's case. First, it is the case, and indeed is agreed between the parties, that the defendant has in the past adhered to an extreme Islamic ideology based on a conservative fundamentalist interpretation of Islam and a belief in violent jihad.

294 Secondly, there is no credible evidence to establish that the defendant no longer adheres to such an extreme ideology. Whilst he has asserted at various times following the first refusal of parole in 2017 that his views have changed, that assertion is not supported by the evidence, is a self-serving attempt to satisfy authorities that he should now be released, and should be rejected by the Court.

295 Thirdly, the defendant in the past actively promoted his extremist views and exerted an enormous and extremely dangerous radicalising influence on others. He led a terrorist organisation in Melbourne that was preparing to commit a terrorist act and was involved with a terrorist organisation in Sydney.

296 Fourthly, if the defendant is released from custody, he is likely to continue to exert a radicalising influence on others to commit serious terrorism offences and there is no alternative to a CDO that would be effective in preventing the unacceptable risk to the community that this would pose.

297 The plaintiff relies on the overall evidence, including the CISP material and the evidence of the two expert psychologist, in proof of the propositions.

298 Ms Orr submitted that the question of whether or not the defendant's ideology has truly changed is at the heart of the risk posed by him, and therefore at the heart of the case itself. She took the Court through the reasons why the claim of changed ideology should be rejected. First, she submitted that there is ample evidence of the defendant's willingness and inclination to be deceitful in order to meet his objective of being released. She supported this contention by reference to things said by the defendant over the years about lying to ASIO and others, and the observations of Ms Dewson, Dr Mischel and Dr Davis on the question. She submitted that even the evidence of Dr Davis is consistent with the evidence of the other experts that the self-serving statements of the defendant about his apparent change in ideology must be treated with caution.

299 Secondly, Ms Orr submitted that the evidence firmly establishes that the defendant maintains his belief in violent jihad. Ms Orr pointed to the clinical and [redacted], the parole assessment interviews, and the interviews conducted by experts in preparation for this hearing as being supportive of this proposition. He has steadfastly refused to denounce violent jihad. To do so would be like rejecting prayer, he has said. Dr Davis described the mental gymnastics involved in the defendant's refusal to reject jihad whilst saying he rejects violence. The defendant made it clear in the past that his understanding of jihad was that of a violent struggle against the enemies of Islam, the kuffar. On his behalf, it was now asserted that he now believes only in defensive jihad, a concept which he never disclosed to MOU clinicians or in [redacted]. There is no evidence indicating his view of violent jihad has changed to a defensive one in his years in custody.

300 Thirdly, it was submitted that the defendant's claimed change in ideology has only been proffered by him in recent times in a non-genuine attempt to satisfy the authorities that he should be released from prison. Despite maintaining that he discovered the existence of the relevant covenant or treaty in 2014, the first record of his having made any reference to it did not occur until 2017, a mere two weeks after the first denial of parole which occurred on the basis of his having maintained his extremist beliefs. During that three year gap, there was ample opportunity for him to disclose his change of belief, including at no fewer than 25 sentence management unit meetings and numerous clinical sessions with Dr Mischel. It beggars belief that he could have failed to disclose this critical change of heart had it really occurred, submitted Ms Orr. Furthermore, during this period, the defendant continued to make statements inconsistent with his beliefs having so fundamentally changed.

301 Fourthly, it was pointed out that none of the experts in this case has been in a position to accept the defendant's claim of changed ideology. Ms Dewson, for example, considered that had the defendant truly come to realise the error of his ideology, she would have expected a moral response from him greater than simply, 'I've realised I was wrong'. Dr Mischel questioned the legitimacy of his change in ideology. Dr Davis on a number of occasions in his reports referred to the 'understandable' scepticism about the claimed change.

302 Fifthly, the defendant's claim as to his changed ideology and when and how it occurred is inconsistent with evidence of listening device conversations showing his awareness of the so-called covenant or treaty during the period of his index offending in 2004 and 2005. Ms Orr submitted that the assertion of Mr Walters that the treaty referred to there was a different treaty should not be accepted. It is implausible that anything different was being discussed.

303 Finally, even if the defendant's statements as to his changed ideology were accepted, which Ms Orr said they should not be, they are limited to a belief that the defendant, whilst in Australia, should not wage violent jihad against fellow Australians. Such a belief would not deny an obligation to wage jihad against countries or persons outside this country. Even if he has changed his beliefs, he still considers that political violence is permissible in certain contexts.

304 In her opening submissions, Ms Orr summarised three categories of evidence beyond the central evidence of the expert witnesses which were, she submitted, relevant to the question of the risk posed by the defendant. These were, first, the involvement of the defendant with the Sydney terror cell at the time of his offending which was the subject of some of the agreed facts, secondly, the evidence of Mr Lister and Assistant Commissioner Lee about the recognised risk of members of the community being radicalised by influential people with extremist ideologies, and thirdly, the body of evidence pointing to the defendant's past and current associations with multiple people of national security concern.

305 The seriousness of the defendant's involvement with the Sydney cell was emphasised. As the Court of Appeal in NSW determined, he provided spiritual guidance to the Sydney group, and wielded significant influence on their thinking and conduct. Many aspects of the material demonstrated the considerable reach of the defendant's influence in that period. Evidence indicates that his ability and inclination to wield that influence has not waned with the passage of time.

306 In respect of the role of influential people in radicalising others, Charles Lister explains that the role of influencers 'has become an extremely significant driver of terrorism threats in the West'.[140] Ms Orr emphasised a number of portions of the report of Mr Lister, including the following:

On another level, an influencer may simply be a more influential - and acknowledged as such - actor. In the case of jihadist operatives and attack plots, these influencers have most often assumed the mantle of ideological leadership, either as genuinely qualified sheikhs or clerics, or self-identified ideologues. Influencers of this kind can radicalise and influence a small number of operatives within a single communal or national group, or they can propel themselves into being international influencers capable of fuelling entire movements.[141]

307 Ms Orr submitted that a 'self-identified ideologue' is precisely what the defendant is.

308 Ms Orr focused, also, on a passage of Mr Lister's report describing the changing, but still powerful, role of older influencers.[142]

309 In respect of the defendant's past and current association with persons of national security concern, Ms Orr opened that issue in some detail, and as noted, the topic is canvassed fully in Annexure A to the plaintiff's written opening. The persons in question include members of his own family including two of his sons with whom he has a concerning relationship, his co-offenders and co-accused, members of the Sydney cell and their families, and numerous known or suspected foreign fighters, at least 15 of whom visited him in prison before travelling overseas, seemingly to fight. It was submitted, amongst other things, that the defendant has seemingly used his sons as a conduit through whom to speak to others of national security concern, and on occasions speaks in code with them, another concerning feature.

310 Of the 15 individuals referred to above who travelled overseas, they all visited the defendant before doing so, many of them in the company of one or other of his sons. Many of them indicated in their travel documents that they intended to travel to Turkey, a recognised entry point into Syria. 12 of the 15 never returned to this country. There is a strong inference that their purpose in travelling overseas after visiting the defendant was to act as foreign fighters with Islamic State, and that they sought religious guidance from the defendant in connection with that endeavour.

311 The steady stream of such persons visiting the defendant did not cease until the authorities acted to stop it, rather than because of any decision by the defendant to turn them away.

312 Ms Orr relied upon the defendant's ongoing contact with known or suspected foreign fighters for many years after his incarceration commenced as being a significant part of the case.

313 The most important evidence going to the unacceptable risk limb of the test, acknowledged Ms Orr, is the evidence of the expert psychologists who carried out risk assessments on the defendant.

314 Dealing first with the expertise of the three psychologists called in the case, Ms Orr submitted that it was unsurprising that the expertise of the two experts called by the plaintiff was not challenged, given their considerable and highly relevant experience in assessing the risk of persons engaging in violent extremist offending.

315 Ms Dewson has provided risk assessments under the NSW scheme on six occasions, using the VERA-2R tool on four of these. Her evidence has been accepted and acted upon by the Supreme Court of NSW. In the case of Dr Mischel, she has had a very lengthy professional relationship with the defendant over a period of five years, engaging in no fewer than 43 clinical sessions. She also had first-hand experience of the way he engaged in [redacted]. She is the only witness of the three with such extensive history dealing with the defendant, having spent years conducting clinical assessments of his personality, for example.

316 Ms Orr dealt with the particular attacks made upon Dr Mischel, pointing out that hers was not being relied upon as an independent risk assessment. An attack upon her independence was entirely beside the point. Her extensive experience with the defendant over the years placed her in a strong position to know him and assess the risk he poses. Her ability to provide an accurate risk assessment is in no way hampered by her dual role. Her use of the VERA tool would itself have countered any unconscious bias present, and she took many steps to ensure the accuracy of her assessment. As for the other attacks upon Dr Mischel, they were of no force.

317 Turning to Dr Davis, Ms Orr, whilst acknowledging his expertise in assessing the risk of violent and sexual offenders, pointed out that he has had no experience in assessing offenders for the risk of violent extremism offending. He has never even interviewed a person charged with committing a terrorism offence. This is not his field, and it is simply not correct to assert, as was done by Mr Walters, that he is 'a lot more expert then either Ms Dewson or Dr Mischel'.

318 Furthermore, Dr Davis did not administer the VERA-2R, in which he is not trained.

319 Ms Orr pointed out that the Act requires me to have regard to the results of the risk assessments of the plaintiff's two experts by virtue of s 105A.8(1)(c). As for Dr Davis, he did not carry out a risk assessment, expressing the view that such cannot be done. It was submitted, therefore, that I am not required to have regard to his reports under s 105A.8(1)(c), although I should have regard to the reports to the extent they include other relevant information. Ms Orr submitted, however, that the reports provide very little assistance to the Court in its statutory task.

320 Dr Davis said that that statutory task is impossible. Instead of assisting the Court in that task, it was submitted that what Dr Davis did was to offer a 'very narrow and rigid academic opinion' about the difficulties of statistical prediction in cohorts with low base rates, a matter which is not in dispute.[143]

321 The effect of accepting Dr Davis' opinion would be to deprive the Court of the benefit of any expert assessment of risk in circumstances where the statute requires the Court to have regard to such assessments.

322 Each of the plaintiff's experts, in contrast to the approach of Dr Davis, approached the task of risk assessment pragmatically, applying their clinical judgment and using an appropriate assessment tool.

323 Ms Orr elaborated on the limited use that could be made of Dr Davis' reports and evidence. In dealing with the anamnestic approach he outlined, his reference to imminence is not to the point. The Court's task of considering the risk posed is not constrained by a consideration of what may occur in hours to days to weeks. As for his approach of looking for something blatant, that was an approach with little grounding in reality, which provided no assistance to the Court.

324 In any event, even using that common sense approach of looking for something blatant, in this case, in circumstances where the defendant has maintained his extremist ideology and his belief in the use of violence to further that ideology, there is a blatant risk of him committing a further terrorism offence.

325 In respect of the VERA tool, Ms Orr submitted that much time was spent by the defendant advancing 'technical and academic arguments directed to the absence of a statistical foundation to the risk assessment framework or tool'.[144] She submitted that the fact that the VERA-2R does not provide a measure of the statistical risk does not mean that it is not a useful tool in assessing risk of violent extremism. The Supreme Court of NSW has been considerably assisted in recent years by risk assessments carried out using the tool, including in cases in which Ms Dewson gave evidence. Ms Orr took me to some of these NSW cases.

326 Ms Orr submitted that both Ms Dewson and Dr Mischel were very clear in their evidence that they used their clinical judgment to provide a clinical assessment of the risk posed by the defendant, and in that clinical judgment they took into account the presence of factors connected with the defendant that are specified in VERA and have been empirically linked with violent extremism offending. Ms Orr submitted that Ms Dewson put it very succinctly when she said that, 'The answer to the question of the defendant's risk does not lie within the VERA, it lies within the evidence'.[145]

327 Ms Orr submitted that I should reject the contention of Mr Walters that the plaintiff's experts had not used a structured professional judgment approach to their risk assessments. That was precisely what they had done, with the use of the VERA tool, which each of them described as using a structured professional judgment approach. That approach had all the benefits that Dr Davis himself had attributed to that style of approach.

328 As for the risk factors represented by the indicators in the VERA-2R, Dr Davis did not challenge the contention that there was an association between those factors and violent extremist offending. The complaint was that these factors had not been proved to be associated with recidivism, but it was not demonstrated that they would cease to be relevant to the assessment of risk of reoffending.

329 Ms Orr submitted that the defendant's submissions seem to ignore or fail to understand that the VERA tool requires a clinician to conduct an assessment of dynamic factors over time, not only at the time of the index offending. The focus of the tool is very much on the risk posed by the individual at the time of the assessment. The tool is very time-sensitive, and considers the trajectory of behavioural change and the evidence as a whole, directing attention to where the offender might be in the radicalisation process.

330 As to what constitutes a high risk, Ms Dewson explained that by 'high risk' she means:

the defendant presents with a significant amount of evidence relevant to violent extremism and there are significant concerns in relation to him committing further offences in certain contexts.[146]

331 Ms Dewson emphasised, consistently with the authorities, that:

Considering the risk requires the clinician to take into account both the likelihood and the severity of the conduct that the particular individual is at risk of engaging in.[147]

332 Ms Orr submitted that Ms Dewson and Dr Mischel's explanations of the risk posed by the defendant are clear and pragmatic, specific and individualised to the defendant, based on their review of the evidence and utilising their professional judgment.

333 By contrast, Dr Davis, she submitted, offered nothing more than a semantic debate that failed to grapple with the possibility of such a pragmatic and individualised assessment in the absence of a statistical foundation. He stated that providing risk categories for extremist offenders is extremely difficult, if not impossible. His views paid no regard to the detailed explanations by Ms Dewson and Dr Mischel as to the meaning of their assessments, and unfortunately, gave no assistance to the Court in its statutory task.

334 Ms Orr pointed out that it is for the Court to assess whether the risk posed by the defendant is unacceptable. The identification by the plaintiff's experts of multiple specific risk factors posed by the defendant and their overall clinical opinion of the high risk posed is not only highly relevant to the Court's task, but, according to Ms Orr, provides compelling evidence to satisfy me that the risk posed by the defendant of committing a serious Part 5.3 offence is unacceptable.

335 Finally, in respect of the expert evidence, Ms Orr submitted that neither of Ms Dewson or Dr Mischel's assessments was challenged, and nor was there any challenge to their assessment of the particular type of risk posed by the defendant. Whilst a lot of attention was directed to the VERA tool, the ultimate clinical assessments of the two experts were not challenged. Furthermore, the defendant's challenges to the underpinnings of those assessments failed to undermine the ultimate conclusion that the defendant poses a high risk of committing a serious Part 5.3 offence if released into the community.

336 One of the matters Ms Orr addressed the Court on was the failure of the defendant to give evidence in the hearing. She made it clear that in the circumstances, she did not ask me to draw any Jones v Dunkel[148] adverse inference against the defendant from that failure.[149] The fact that he had not given evidence, however, is still relevant, as the Court does not have the benefit of any explanation from the defendant about such matters as the subject matter of any conversations with known or suspected foreign fighters, the subject matter of the coded conversations with his sons, and what was meant when he referred to a treaty in the 2004 recorded conversations.

337 In respect of the 'less restrictive measures' limb of the statutory test, Ms Orr identified in her opening the three potential measures which require consideration. The first of these is a control order. The second is 24-hour police surveillance. The third is cancellation of the defendant's current visa leading to the prospect of his being deported to Algeria.

338 In respect of the control order option, between the time of the opening and closing submissions of Ms Orr, an interim control order had been made by Besanko J in the Federal Court. The terms of this control order, which would only come into effect should I decline to make a CDO, were spelt out clearly to the Court. They are extensive and far-reaching, and are contained as Annexure A to the decision of his Honour.[150]

339 Ms Orr submitted in her opening, and reiterated in her closing submissions, that despite there being a wide range of controls and prohibitions that would operate on the defendant under the interim control order and the final control order which would succeed it, these would not be effective in preventing the unacceptable risk he poses. There are limitations on what a control order can achieve. It would not be capable of prohibiting the defendant from associating with all individuals who might seek him out or otherwise be susceptible to his influence, because it is not possible to identify all such people. A control order would not be able to prevent the defendant attending at mosques and other places and practising his religion, albeit that he would be prohibited from leading prayers and forming prayer groups. He cannot be prohibited from associating with members of his family, including his sons Bakr and Osama who are both individuals of concern. A control order cannot prevent him from associating indirectly with people specified in the control order by using his family as a conduit. A control order cannot prevent him from acquiring or distributing extremist material through other people including family members. It cannot prohibit him from attending at all places in which he might covertly meet with people who might seek him out or be susceptible to his influence. A control order cannot prevent him from breaching its terms in a way which might go undetected. Even though he would be the subject of tracking, that would not mean that the authorities would know what he had done at every location. The potential for him to breach or disregard the terms of the order would be real, submitted Ms Orr.

340 For all of these reasons, Ms Orr submitted that a control order would not be effective in preventing the unacceptable risk posed by the defendant.

341 As for the second option, that is, the use of police monitoring, the first affidavit of Assistant Commissioner Lee demonstrated that it would be impossible for the defendant to be under surveillance 24 hours per day, and in any event, physical surveillance can only be maintained for a short period of time. For that reason, submitted Ms Orr, this should not be considered even as a measure for preventing risk, let alone a measure capable of being effective in addressing that risk.

342 Turning to the final option, the cancellation of the defendant's ex-citizen visa, Ms Orr submitted that there was no evidence that this would actually occur. Notwithstanding that fact, the Court could and should still take into account, as a less restrictive measure, a measure that at this stage remains hypothetical. Ms Orr submitted that the less restrictive measure limb does not limit the Court to consider only measures already in progress or certain to be applicable. The plaintiff was content for the Court to take this approach to the limb, viewing it in a way most adverse to the plaintiff's case. This cautious approach advanced by Ms Orr was not the subject of any authority, but was consistent with some guidance from the extrinsic materials by way of the explanatory memorandum accompanying the provisions.

343 For reasons advanced in detail during her opening of the case to the Court,[151] Ms Orr submitted that even were I to assume that the defendant's visa may be cancelled at some future time, this and the resultant holding of the defendant in immigration detention and possible deportation to Algeria would not be effective in preventing the unacceptable risk he poses.

344 First, she submitted that detaining the defendant in immigration detention would create a higher risk of his committing a serious Part 5.3 offence than if he remained in custody under a CDO as there would be limits on the kinds of monitoring and restrictions placed upon him in immigration detention. Secondly, he may request to be deported to Algeria as soon as reasonably practicable, so may only be in such detention for a short time. Thirdly, even if removed to Algeria, he would continue to pose an unacceptable risk of committing a serious Part 5.3 terrorism offence because each of the relevant offences he poses a risk of committing can be committed from outside this country due to the extra-territoriality of the provisions. He would not need to be in Australia to be able to radicalise, incite, direct, urge or influence others to commit serious terrorism offences, including offences in Australia. Fourthly, any interim or final control order against the defendant would be unlikely to be enforceable from the time of the defendant's removal from Australia. Fifthly, upon his removal from Australia, the defendant would be effectively beyond the reach of Australia's law enforcement agencies. They would be unable to monitor or control his activities, would be unable to identify those in this country with whom he may communicate from Algeria, and therefore would be limited in their ability to identify and disrupt individuals both in Australia and elsewhere whom the defendant may seek to radicalise, incite, direct, urge or influence to commit terrorist crimes.

345 For all of these reasons, it was submitted that the final option, namely, the cancellation of the defendant's ex-citizen visa, with its resultant effects, would not be effective in preventing the unacceptable risk posed by the defendant.

346 Ms Orr dealt with the submission on behalf of the defendant that I should decline to exercise my discretion in favour of the granting of a CDO because of the step taken by the plaintiff to cancel his citizenship, and the prospect of a further step being taken to cancel his ex-citizen visa. Ms Orr submitted that the assertion by the defendant based on the inadequate risk scenario in relation to the environment the defendant would be in in Algeria should he be deported is misplaced, and misunderstands my task.

347 As things currently stand, she submitted, if a CDO is not made, the defendant will be released into the Australian community. There is no evidence to indicate he will instead be detained in immigration detention. Whilst the hypothetical possibility of the Minister making a decision to cancel the visa is something required to be addressed for the purpose of the less restrictive measures limb, it is not something which would lie as a separate reason for the Court to decline to exercise its discretion to make a CDO. For the Court to use the hypothetical possibility that the defendant's visa might be cancelled as a reason to decline the relief sought by the plaintiff where the statutory preconditions are met would be quite unsound and an approach not supported by a proper construction of the provision.

348 Ms Orr pointed out that there does not appear to be any case in the NSW setting where a court has declined to make a CDO on discretionary grounds when the statutory criteria have been satisfied. Indeed, submissions aimed at bringing about such an outcome have been rejected on a number of occasions.

The plaintiff's position is the defendant was at the time of his offending, and remains today committed to a violent extremist ideology, an ideology that justifies the use of violence in the name of religion. He was and is an influential leader who has no plans to stop teaching and proselytising his ideology. He has made no commitment to continue with the deradicalisation program in which he has participated in recent years if he is released into the community; a deradicalisation program of course in which he has failed to meet his treatment goals. The risk that he will, if released, radicalise others again or that he will guide and encourage people who are already radicalised to engage in acts of terrorism is real and extremely significant for the Australian community and we say it is clearly an unacceptable risk. And, for the reasons I've just been elaborating on, there is no less restrictive measure to manage that risk, the only measure is the continued detention of the defendant for the period sought by the order sought by the plaintiff.[152]

350 The defendant's case was supported by the Outline of Submission filed on his behalf, and by the oral closing submissions of Mr Walters. At the outset, it was conceded that the pre-conditions in s 105A.7(a) have been made out in this case.

351 Front and centre in the submissions made on behalf of the defendant was the common law presumption in favour of the liberty of the subject, which was said to underpin the predictive enquiry required by the legislation. Mr Walters took the Court to the decision of Nigro v Secretary to the Department of Justice ('Nigro')[153] in support of that proposition.

352 Mr Walters submitted that implicit in the final words of s 105A.7(b) is the concept of rehabilitation. The safety and protection of the community at the heart of the legislation, and which is one of the matters to be taken specifically into account by virtue of s 105A.8(1)(a), is a broad concept, and as he put it, 'it certainly encompasses the rule of law which protects the community and makes it safer'.[154] He submitted that this concept also 'extends to notions of rehabilitation and the rule of law'.[155]

353 In respect of the standard of proof in this case as reflected in the requirement of proof to a high degree of probability, Mr Walters, by reliance upon the authorities, implicitly went close to asserting that the criminal standard of proof applies.

354 He reminded the Court that the legislation requires the Court to reach its decision on admissible evidence. Given the importance of the liberty of the subject, and the common law presumption in favour of it, the evidentiary requirements should be construed strictly.

355 Mr Walters pointed out that what needs to be established to that high standard is not only that there is an unacceptable risk that the defendant would commit a terrorism offence, but that he would commit a serious Part 5.3 offence. It would not be sufficient to show that by his presence in the community, others might commit offences. It would need to be established that there would be an unacceptable risk that he himself would commit such an offence.

356 Mr Walters emphasised the fact that even if the Court is satisfied of the matters in s 105A.7 of the Code, there would still be a discretion required to be exercised by the Court. He submitted that whilst many things would inform the exercise of that discretion, one thing which would militate against it being exercised in favour of the plaintiff is the fact that on 20 November 2020, the plaintiff made a determination to cancel the defendant's citizenship, exposing him to the consequences of that. The evidence in the case focused on the risk scenario of the defendant being free in the Australian community. There was no evidence which focused on the practical scenario of the defendant being resident in Algeria, and the likelihood of his committing a serious Part 5.3 offence then. Mr Walters described this as 'an evidentiary vacuum'.[156] He submitted that the plaintiff had created this situation, and now was asking the Court to overlook the consequences of his conduct in doing so. Mr Walters submitted that it would not be a proper exercise of the Court's discretion to grant the order sought by the plaintiff.

357 In respect of the 'no other less restrictive measure' aspect of the process, Mr Walters again relied on the evidentiary vacuum in respect of the deportation option, which was not the subject of specific assessment by the plaintiff's experts. More centrally, he relied on the extensive and comprehensive controls provided by the interim control order in place at the time of the hearing. He submitted that this is a less restrictive option which would be effective in controlling the risk posed by the defendant.

358 Turning to s 105A.8(g) and (h), Mr Walters took the Court to paragraphs 65 and 66 of the sentence of Bongiorno J as encapsulating the criminality of the defendant in the index offending. He submitted that whilst the offending was serious, as reflected by the sentence, the fact was that in the result, no injury was caused to any person. He described the offending as being, in a sense, inchoate, in that there wasn't a victim or target identified or injured or hurt in any way. The offending did not get very far, submitted Mr Walters, the defendant being at a fairly early stage of the continuum of offending. The future risk, he submitted, is informed by the fact that even after a period of 18 months of offending, the defendant did not get to the point of hurting anyone, engaging in a good deal of procrastination. This offending was nowhere near as serious as would have been the case if some actual harm was done to someone. He submitted, further, that the risk posed by the defendant now is less than that he posed 15 years ago.

359 In respect of the Sydney allegations as they concern the defendant, Mr Walters made the point that these are untested, with no conviction arising from them. He did not demur from the proposition, however, that the Court can have regard to the allegations to the extent set out in the statement of agreed facts. These events, it should be remembered, occurred 15 years ago, and in terms of the risk assessment exercise as it is now, should have limited weight.

360 Turning to the area of risk assessment, Mr Walters summarised the rationale behind what he said is still an emerging field. The field employs scientific method and statistics to assess the circumstances of an offender compared with factors known to be associated with recidivism. Risk assessment developed as a means of assisting decisions about the allocation of resources. It can only be properly deployed in the assessment of risk of future offending, in justification of coercive measures or detention, when the statistical modelling has been shown to attract sufficient reliability or validity.

361 The emergence of the field in connection with the various statutory schemes in Victoria and elsewhere has taken time, because it has required sufficient numbers of offenders to permit researchers to observe and collate data about recidivism rates permitting the identification of factors that are shown to distinguish between offenders who re-offend and those who do not.

362 There are only some types of criminal offending currently shown to be amenable to this kind of risk assessment. These include sexual offending, and some forms of violent offending.

363 An illustration of the importance of this kind of development can be seen in the early attempts to predict violent recidivism based on what turned out to be an unreliable indicator, according to Dr Davis, of lack of remorse. The fact of someone being retained in custody following his sentence based on such factors would amount to a great injustice.

364 Mr Walters submitted that the statistical validation of a risk assessment tool is necessary before it possesses sufficient proven accuracy to justify its use in detaining an offender who has served his sentence. Mr Walters went on to submit:

The fact that some risk assessment tools have been shown to be sufficiently accurate to be used in this way shouldn't lead to the conclusion that it is possible, reliably, to assess all types of risk or to predict all types of recidivism. In our submission, currently there is no risk assessment tool that the court could use to justify the continuing detention of a violent extremism offender.[157]

365 Mr Walters then turned to a detailed consideration of the VERA-2R. He submitted that an assertion that this tool has some sort of validity even if it does not possess predictive validity represents a misunderstanding of the field. There is no middle category of risk assessment, somewhere between the unstructured opinion from the bad old days, and a properly validated process or structured professional judgment. He submitted that on the evidence of Dr Davis, the VERA-2R is not an example of a structured professional judgment. It contains no method of coding the various factors to give weight to them. It provides no guidance on the question of how to arrive at a risk level. It does not set out a way of identifying how the risk levels of high, medium and low might relate to each other. It does not rank individuals against each other, which is exactly what risk assessment is. The Court was being asked, he submitted, to accept that this tool is not predictive and yet to accept that it can assess risk. As Dr Davis made clear, this tool does only part of what a structured professional judgment tool needs to do. The problem is, as he put it, the tool describes factors present in people who are known extremist offenders. What the indicators cannot do is identify who is going to be a recidivist.

366 Mr Walters took the Court to the passage in Nigro highlighting how notoriously difficult it is to predict the prospect of a person committing a criminal offence in future.

367 When asked about the fact that the VERA-2R has been found to be worthy of use by courts in NSW, Mr Walters submitted that this had occurred without an expert of the quality of Dr Davis giving evidence about why that should not be so. This Court, on the other hand, had the powerful evidence of Dr Davis as to the dangers of the use of this tool.

368 As for the two experts for the plaintiff having given evidence that they have carried out risk assessments using the VERA-2R, Mr Walters submitted that the evidence of Dr Davis is to be preferred, on the basis that he is a lot more expert than either of them. In spite of the fact that he has no experience in conducting risk assessments in the extremist violence area, this is still his field, so it was submitted. He is one of Australia's pre-eminent experts in the field of risk assessment for the commission of crime, and it was not put to him that this particular case was outside his field of expertise.

369 In a field in which the Court must be guided by expertise, Dr Davis says there is a limit to what expertise can achieve here. An assessment of risk can only properly be made in a case where there is something blatant pointing to the risk. The available information in respect of the defendant does not reveal any such blatant factors.

370 Mr Walters went as far as to submit that a Court should never rely on an assessment of risk carried out using, in part, the VERA-2R.

371 He submitted that all the VERA-2R does at best is to identify that a person shares a number of indicators with others known to be violent extremist offenders. That, however, is already known about the defendant. What the tool cannot do is identify whether he or anyone else is at risk of offending again.

372 Mr Walters criticised the evidence of Dr Mischel on a number of scores. One was that she had included material in her report, namely, an indication that the index offending reached the stage of a target being identified, that was wrong. This incorrect information was relied on as pointing to the rigid thinking of the defendant. Another was that Dr Mischel attempted to suggest quite high base rates for violent extremist recidivism, only to be forced to back down and concede significant qualifications to the research on which she based her evidence on the point. It was also submitted that Dr Mischel's ability to provide an independent assessment was hampered by her changing role in respect of the defendant. It is unsurprising that he was unforthcoming about his thoughts and inner life to her.

373 Not only was her ability to provide an independent assessment hampered by her dual roles, but so was her ability to provide an accurate assessment. As Mr Walters put it:

independence is a hallmark of accuracy in these kind of things: it's not the only hallmark, but in our submission her assessment was not accurate because she appeared to rely on facts that were shown to be wrong and she also was attempting to say that there was a level of recidivism which there just isn't in relation to this, and her evidence is very unsatisfactory for your Honour and she should not be accepted in our submission.[158]

374 Faced with an enquiry whether or not I should view Dr Mischel as the person, of the three experts, who knows the defendant the best, Mr Walters submitted that whilst she had known him the longest, that did not mean she knows him best.

375 Mr Walters submitted in summary that the evidence the plaintiff relies upon in this case, by way of the expert evidence, is unreliable.

376 He admitted that it was not put to either of the plaintiff's experts that their evidence was unreliable, that their expertise was deficient, or that Dr Davis was a more highly qualified expert. As to the latter, it was submitted that such a criticism would not ordinarily be put to an expert witness, but a consideration of the relative qualifications of the experts would bear out the contention. As to the plaintiff's experts, Mr Walters conceded that they are qualified experts, but would not accept the adverb 'highly' in association with 'qualified' where they were concerned.

377 In relation to the associate evidence, Mr Walters relied on the submissions advanced previously in pursuit of the exclusion of the evidence. I summarised these submissions in the ruling I delivered on some evidentiary matters before handing down this judgment.[159] In short, the contention of Mr Walters in respect of the defendant's ongoing association with a number of known or suspected foreign fighters was that in the absence of information about what they discussed, the evidence did not prove much.

378 In respect of the claims made by the defendant over the years as to his changed beliefs on the obligation to wage jihad in Australia, Mr Walters emphasised that this is a claim which has been made repeatedly by the defendant, but did not dispute the proposition that the claim was made for the first time after the first refusal of parole. As for not having revealed his change of heart to anyone between 2014 and 2017 when he first raised the matter, Mr Walters submitted that the defendant was effectively in solitary confinement for a couple of years in that period, limiting his capacity to reveal his changed thinking to people. He acknowledged that there was nothing to indicate that any revelation was made to his clinician after his release from solitary confinement and before the parole refusal. As for making the revelation after the refusal of parole, reformation is, after all, one of the purposes of parole, and one of the functions of a penalty of the nature that the defendant has received for his conduct is to have a salutary effect on him, and get him to change and acknowledge an altered position. When parole was refused, the defendant, it may be thought, realised the significance of his changed views. He revealed the change to the authorities, and has repeatedly done so since then. He can do no more than he has done in clearly and repeatedly making his new position clear. His significantly depressed state throughout the period of non-disclosure after 2014 and other aspects of his personality including his tendency to do things contrary to his interests which are not carefully and rationally thought out may go some way to explaining his failure to disclose more promptly.

379 In relation to the CISP material, Mr Walters relied on and did not repeat his submissions about this material made in the application to exclude it. He pointed out that insofar as the plaintiff relies upon things adverse to the defendant in [redacted], he relies on the things which are to his favour in [redacted].

380 As for the apparent knowledge and use by the defendant of the term 'treaty' in 2004, he did not link that term in the conversations with the concept at the heart of his revelations in recent times. When Mr Walters was asked what it was to which the defendant was referring by the use of the term 'treaty' in 2004, he said, 'Your Honour, I don't know. I'm not sure that he would know now. It's 16 years ago'.[160] He indicated that he had no instructions as to what the defendant was talking about, other than he was not talking about the concept currently under discussion.

381 On the question of ideology, Mr Walters noted the evidence of Dr Davis that it is plausible that the defendant has changed his view. [161] Ms Dewson accepted that the defendant's changed views as expressed by him are moderately protective. She did not dismiss them as being implausible or fake. Dr Mischel noted in her first report, 'Fluctuating and often contradictory views regarding Mr Benbrika's belief may be indicative of ongoing reinterpretation of his ideology'. Mr Walters accepted, however, that what is important is what I make of the evidence about the supposed change of heart by the defendant, not what the experts made of it. That acceptance was accompanied by a reminder to the Court about the high onus resting on the plaintiff in relation to this issue.

382 On the question of the failure to denounce violent jihad, Mr Walters submitted there is a real misunderstanding as to the significance of this conduct. He pointed to the account of Professor Abdalla on the matter, and the contention of the witness that 'Violent jihad is not synonymous with terrorism'. [162]

383 When the Court pointed out to Mr Walters that Bongiorno J had been satisfied that the defendant explained more than once to members of the jemaah that jihad meant violence to those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Sharia law, he indicated that that was not as he was now instructed, and that is not now the defendant's view.

384 In further explaining the defendant's apparent refusal to denounce violent jihad, Mr Walters indicated that there is a defensive aspect to jihad. He further submitted:

The fact that he now accepts that you don't engage in violent jihad in Australia doesn't mean that the concept has got nothing, no further work to do because there's that defensive aspect. Yes, we accept that was the view back in 2004/2005, but asking him to renounce it for all purposes and all meanings, which is what that would be, is asking him to do something which would be contrary to Islam according to Professor Abdalla. [163]

385 Mr Walters submitted that by the time he failed to renounce jihad, the defendant had come to the view that jihad was a defensive concept. That was not drawn out in the [redacted] and in sessions with the clinicians because the mentors and clinicians did not go there.

386 Mr Walters concluded his submissions as follows:

In our submission, the power that your Honour has under s.105A.7 is to be regarded as an extraordinary power because it involves a court committing a person to prison not for the commission of crime, but for a risk that they may do so in future. As we've attempted to advance, the exercise of that power must give great weight to the principle of the liberty of the subject. The power should only be used in very clear, and we would say, indeed blatant cases, and we say that this case is an unsatisfactory amalgam of suppositions and suspicions. There's no sound scientific risk assessment, there's no expressed intention to commit any relevant crime. Mr Benbrika served his full sentence, including the non-parole period in accordance with the sentence imposed by Bongiorno J, and for the reasons that we've advanced, your Honour, he shouldn't be committed to prison further.[164]

387 I may only make a CDO if the three requirements of s 105A.7(1) are met. There is no dispute that the defendant is a terrorist offender as defined in the Code, and that this application has been made in accordance with s 105A.5. It follows that there are two things of which I would need to be satisfied before the discretion to make a CDO would arise.

388 First, I would need to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if he is released into the community.

389 Secondly, I would need to be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

390 Section 105A.13(1) dictates that the Court must apply the rules of evidence and procedure for civil matters during this proceeding. Therefore, in accordance with s 140(1) of the Evidence Act 2008 (Vic), the standard of proof is satisfaction on the balance of probabilities. Pursuant to subsection (2), I am required, in deciding whether I am satisfied to that standard, to take into account:

1. the nature of the cause of action or defence;
2. the nature of the subject matter of the proceedings; and

391 Ms Orr submitted that this statutory articulation of Briginshaw_[165]_, as she put it, has application in this case, in light of the obviously serious nature of the case.

392 In respect of the test in connection with unacceptable risk, there is, as submitted by Ms Orr, a further modification which needs to be applied to the standard by virtue of the requirement for the Court to be satisfied to a high degree of probability. This, submitted Ms Orr, is a particular species of the civil standard, but whilst a higher civil standard, it is lower than and not to be equated to the criminal standard of proof. I accept those submissions.

393 As for the test of whether there is no other less restrictive measure, Ms Orr submitted that it was telling that Parliament did not apply the requirement of satisfaction to a high degree of probability to that part. She submitted that the ordinary civil standard with its Briginshaw underpinnings applies. I accept that that is so.

394 It is worth noting that it is the overall case of the plaintiff which needs to be proved. I could not make a CDO unless satisfied to a high degree of probability of the unacceptable risk posed by the applicant, and satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

395 This does not mean, however, that every item of evidence, or every aspect of the case, must be established to a high degree of probability or to any particular standard. What is required is that in the end, I am satisfied to the requisite standard of the case made on behalf of the plaintiff.

396 The case put by the plaintiff is in part a circumstantial one. Ms Orr invited the Court to draw inferences. In respect of the considerations in such a case, Ms Orr referred to a number of passages in State of NSW v Ceissman (No 2) ('Ceissman (No 2')),__[166] in which reference was also made to the High Court decision of The Queen v Baden-Clay.[167]

397 Section 105A.7(1)(b) and in particular, the concept of unacceptable risk used in the provision, have not been the subject of any judicial consideration. Unacceptable risk is not defined in the Code.

398 As submitted on behalf of the plaintiff, guidance may be drawn from judicial consideration of similar provisions in the THRO Act and the State sexual or violent offender supervision and preventative detention schemes upon which Division 105A of the Code was modelled.[168]

399 In the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), the meaning of the term was considered by the Court of Appeal in Nigro.

400 In that case, the Court stated that 'the concept of unacceptable risk is a flexible one which is "calibrated to the nature and degree of the risk so that it can be adapted to the particular case"'.[169]

The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable. [170]

Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[171]

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 the sentences which are attracted by a relevant offence.[172]

404 These observations have been adopted and applied by this Court in relation to the Serious Offenders Act 2018 (Vic).[173]

405 In NSW v Naaman (No 2),[174] the NSW Court of Appeal said of the relevantly similar s 20(d) of the THRO Act (which provides that the Supreme Court may make an extended supervision order if, amongst other things, the Court is 'satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order') that it is 'forward looking' and that it will be 'relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct'. The Court observed in relation to whether a risk is or is not 'unacceptable' that even if there is a slim probability of the offender committing a terrorist act, that risk may be unacceptable having regard to the consequences of such an act. Similar views have been expressed by a number of single judges of the Supreme Court of NSW considering cases under the THRO Act.

406 In Ceissman (No 2),[175] Rothman J in discussing the meaning of 'unacceptable risk', stated:

A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm. The unacceptability of risk balances the likelihood of 'the risk' and the seriousness of the outcome of its realisation. Thus, as the seriousness of the harm which may eventuate increases, the required degree of likelihood of the risk manifesting required to overcome the threshold of 'unacceptability' decreases.

The Court is required to evaluate that equation and to be satisfied to a high degree of probability that the defendant poses an unacceptable risk: State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. The onerousness of the order on the defendant, if the order be onerous, or the interference with the liberty of the individual, is not a factor that is to be considered in determining whether there is an unacceptable risk.[176]

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.[177]

The safety and protection of the community; s 105A.8(1)(a)

408 The first matter outlined in s 105A.8(1) to which the Court is required to have regard is the safety and protection of the community, which is unsurprising bearing in mind the sole object of Division 105A set out in s 105A.1.

409 Mr Walters submitted that whilst this part refers to the community's safety from the commission by the defendant of serious Part 5.3 offences, it is not so confined. The community is also made safer, and protected, by the rule of law and by the confidence the community holds in the rule of law. Weight should be given to the terms of the sentence imposed by the trial judge. The community is made safer, and protected, by adherence to the norms of international law, and by the common law presumption in favour of the liberty of the subject. Further to the above, Mr Walters submitted that the concept of rehabilitation is implicitly contained within the words of s 105A.7(1)(b) and encompassed in s 105A.8(1)(a).

410 Ms Orr emphasised that the current legislation does not expressly articulate a rehabilitative purpose, its sole express object being to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk. That stands in contrast to the legislation considered by the Court of Appeal in Nigro and to the NSW THRO legislation. Ms Orr submitted that this does not mean that rehabilitation of the offender is not relevant. In a number of respects,[178] the provisions do expressly contemplate the relevance of rehabilitation. As Ms Orr put it, Parliament clearly turned its mind to the role of rehabilitation in this scheme, giving it a very specific and identified role in respect of the assessment of unacceptable risk. It was implicit in Ms Orr's submissions as I perceived them, however, that the pursuit or fostering of rehabilitation should play no role when the safety and protection of the community is being considered as one of the matters under s 105A.8(1).

411 I think Mr Walters read too many unwritten words into ss 105A.7(1)(b) and into s 105A.8(1)(a). The stated purpose of the legislation is clear, and the safety and protection of the community is to be achieved, where appropriate, by the continuing detention of terrorist offenders who pose an unacceptable risk of reoffending. The question of whether an offender has rehabilitated is clearly relevant to the overall question whether he or she will pose an unacceptable risk,[179] but the focus in s 105A.8(1)(a) is not on rehabilitation.

The defendant's prior terrorism offending; s 105A.8(1)(g)

The views of the sentencing court; s 105A.8(1)(h)

412 The considerable seriousness of the defendant's prior offending is amply demonstrated, to my mind, by the reasonably lengthy summary of the offending and reasons for sentence of Bongiorno J set out in this judgment.

413 Mr Walters submitted on behalf of the defendant that although his offending was serious, as reflected by the sentence, the offending did not get very far, and that indeed, the defendant was at a fairly early stage of the continuum of offending. He described the offending as 'inchoate', in that no victim or target was identified or injured. He submitted that the offending was nowhere near as serious as would have been the case if some actual harm was done to someone. He submitted that the future risk posed by the defendant is informed by the fact that even after a period of 18 months of offending, the defendant, who engaged in a good deal of procrastination, did not get to the point of hurting anyone.

414 In my view, those submissions underplay the seriousness of the defendant's past offending. When the ongoing offending of the defendant was interrupted by his arrest in November 2005, he was not at an early stage in the continuum of his offending, and nor would it be correct to say that he had not got very far in that offending. He had recruited, organised and indoctrinated a group of young men, imbuing or seeking to imbue in them a fanatical hatred of non-Muslims, and a willingness to contemplate shocking crimes aimed at the heart of the democracy which had been the defendant's home for much of his adult life and in which all seven of his children had been born and raised. This was no momentary lapse. He had pursued his criminal aims for 18 months.

415 In sentencing the defendant, Bongiorno J considered that the conduct of the defendant had created a significant risk that a terrorist act would be committed in this community.

416 Insofar as Mr Walters submitted that the future risk posed by the defendant is informed by the fact that he did not physically hurt anyone by his offending, I do not believe that fortunate fact to be an appropriate measure by which to assess the risk the defendant would pose should he still harbour the malevolent beliefs which governed his conduct at the time of his offending. At the time of his offending, it is clear that the defendant represented a very real danger to the safety of the community. It was only the intervention of law enforcement authorities which prevented potential mayhem and tragedy.

417 A further submission made by Mr Walters, based on his analysis of the criminality of the defendant indicated above, was that the risk posed by the defendant now is less than that posed by him 15 years ago. There is a live issue in this case whether the defendant still harbours the extreme beliefs and thoughts which drove his actions in the past. If, in the end, a consideration of the evidence indicates that that question should be answered in the affirmative, then the mere passage of time since his original offending, and the fact of that offending having not led to an actual terrorist attack, would in no way justify Mr Walter's submission.

Have the extremist beliefs and attitudes of the defendant changed?

418 Ms Orr submitted, correctly in my view, that the question of whether or not the defendant's ideology has truly changed is at the heart of the risk posed by him, and therefore at the heart of the case itself.

419 That is not to say that the determination of this question will determine the case, because no matter what the current views of the defendant may be, the validity of the assessments of risk carried out by the plaintiff's experts is very much in question, as is the matter of the availability of less restrictive measures than a CDO to prevent the risk.

420 An important starting point in contemplating this question is a consideration of the extreme and powerful nature of the beliefs which drove the criminal conduct of the defendant during his offending, and the circumstances in which these beliefs arose. The defendant was a mature person who, from the time of his arrival in this country many years earlier, had embraced his religion and pursued his study of it zealously and single-mindedly. As indicated above, his crimes were not the product of some moments of carelessness or lack of judgment. His was well-organised and executed conduct driven by very powerful feelings and beliefs which had him perfectly willing to perpetrate extreme and outrageous crimes in the name of his faith.

421 It is notable that by the time he was sentenced more than three years after his arrest, by which time he had had ample opportunity to reflect upon his conduct, he not only had taken no step to renounce his commitment to violent jihad, but had actively pondered the continuation of the jemaah in custody.

422 The evidence would well entitle the conclusion that until at least 2014, nine years after he was charged, when he claims that he first became aware of the treaty or rule which would absolve him of the obligation to wage jihad in this country, he had travelled no significant distance on the path to de-radicalisation.

423 In my view, a whiff of implausibility hangs around the claim later made by the defendant that in 2014, as a result of reading a particular work by an Islamic scholar, he realised the error of his thinking, and resolved to put aside his previously strong desire to pursue violence in the name of Allah.

424 First, it strikes me as highly unlikely that a person such as the defendant, with his narcissistic personality traits and well-developed sense of religious and intellectual superiority and infallibility, would have been moved, either instantaneously, or over time, to embrace the views of another which were so contrary to his own views which had so occupied his mind for many years.

425 Secondly, the failure by the defendant to reveal this critical change in his ideology for a period of three years after its asserted occurrence speaks strongly as to the falsity if his eventual claim. In the interim, the defendant had numerous opportunities to reveal the change. All along, he would have clearly realised the importance of doing so as soon as he could. He must have fully understood that his adherence to his past extremist ideology was concerning to the authorities and would be a roadblock to his future prospects of parole.

426 Thirdly, the timing of the defendant's first proclamation of his changed ideology is itself very telling. It occurred a mere two weeks after parole had been refused for the first time. Seemingly out of the blue, and three years after his epiphany, this convenient claim was aired for the first time.

427 Fourthly, there is evidence which tends to establish that despite his claim, the defendant maintains his belief in violent jihad, and continues to reject the laws of Australia in a number of ways. As asserted by Ms Orr, many aspects of the evidence, including the notes of the clinical and [redacted], the parole assessment interviews, and the interviews conducted by Ms Dewson, Dr Mischel and Dr Davis, support this proposition. The defendant has refused to renounce jihad, and as asserted by Dr Davis, has engaged in a good deal of mental gymnastics to justify this. Furthermore, he has advanced a new meaning of jihad which entirely flies in the face of the meaning he attributed to the concept at the time of his offending.

428 Fifthly, there is, as Ms Orr submitted, ample evidence of the defendant's willingness and inclination to be deceitful in order to meet his objectives.

429 Sixthly, the defendant's claim as to his changed ideology and when and how it occurred conflicts with evidence showing his awareness of the so-called covenant or treaty during the period of the index offending. In spite of the submission of Mr Walters to the contrary, it is implausible that some different concept was being discussed in 2004 and 2005.

430 Ms Orr submitted during her opening to the Court that the defendant's claim of changed ideology is not genuine and should be rejected, being no more than a convenient fiction created by the defendant shortly after he was first denied parole in an effort to persuade the authorities to release him.

431 I accept those submissions. I am satisfied that the defendant has not renounced or changed his previous beliefs which justified terrorist violence in the name of Allah.

432 I have reached that firm view without the need to have regard to the opinions of Ms Dewson, Dr Mischel, and to an extent, Dr Davis which would themselves lend some support to that conclusion. On my own analysis of the evidence, I am satisfied that the claimed change of heart by the defendant is a fabrication by him.

The problematic associations maintained by the defendant

433 Being satisfied, as I am, that the defendant to this day still harbours the extremist views which so governed his behaviour in the past, and bearing in mind the clear evidence pointing to his strong belief in his own infallibility and importance as a religious figure, and his willingness to impart his knowledge and beliefs to others, his continued contact over many years with persons of national security interest is unsurprising. Another matter which no doubt contributed to this is the status the defendant seemingly maintains in some segments of the Islamic community. He has often made it clear that he expects that were he to be released, people in the community would seek him out for guidance and wisdom. There are indications in the evidence which would tend to support the correctness of his view.

434 The steady stream of problematic individuals visiting the defendant in prison for many years after his incarceration, in some cases seemingly facilitated and aided by his two eldest sons, was only brought to a halt by the actions of the authorities.

435 To my mind, the continuing desire and willingness of the defendant to maintain these associations is an important matter pointing to the risk he may pose in future should he be released from custody.

436 Another matter pointing to the degree and nature of the risk the defendant poses has already been touched upon. From the totality of the evidence, including the circumstances of the index offending, the way in which he has handled himself since his custody commenced, the things he has said to clinicians and to [redacted] over the years, the psychological testing carried out upon him, and the opinions of the three expert psychologists who examined him and gave evidence before the Court, it is apparent that the defendant has a personality structure and a view of himself and his place in the world and the community to which he would seek to return which raises real concerns as to the risk he may pose should he be permitted to do so.

437 Ms Dewson described the defendant's apparent religious grandiosity and his grandiose sense of self, and noted his own description of himself as being driven by ideology. Dr Mischel noted his narcissistic personality style, 'which includes grandiosity, inflated sense of self-importance' and his need for excessive admiration. She remarked upon his apparent belief of being ideologically, religiously and morally superior to all others, with an obligation to guide and influence others to adopt his doctrine. She considered him to be motivated by religious and moral superiority. Dr Davis, too, noted the grandiosity displayed by the defendant. All of them noted the rigidity of his thinking, and his unwillingness to be swayed by others.

438 It seems to me that the personality structure of the defendant, insofar as the Court can understand it, coupled with his ongoing extremist beliefs, speaks volumes as to the risk posed by the defendant to the safety of the community. That is so without any reliance on the expert opinions before the court in which that risk has been assessed. I turn to that expert evidence now.

439 In this case, two highly qualified and expert psychologists gave evidence to the Court of their assessment of the risk posed by the defendant. Ms Dewson found him to continue to pose a high risk of violent extremism. She assessed him as a high risk of committing a serious offence should he be released into the community. The primary risk the defendant poses, she considered, concerns his capacity to influence, indoctrinate and radicalise others. Dr Mischel found the defendant to fall within the high-risk category of committing a serious Part 5.3 offence. Again, in her case, she considered the risk posed by the defendant to relate to his ability to influence others as a religious leader within his Muslim community.

440 Both of these experts used the VERA-2R tool as part of their process of carrying out their risk assessments. Their use of that tool was at the heart of the attack launched upon their evidence by Mr Walters, supported by the strong view of the defendant's expert witness, Dr Davis, that the tool is not appropriate for use in the assessment of risk of violent extremist offending.

441 I note at the outset, however, that there was a lot more to the evidence of Ms Dewson and Dr Mischel than mere blind reliance upon the VERA-2R.

442 In my view, there is no doubt that Ms Dewson and Dr Mischel are highly qualified and very experienced experts in the field of risk assessment for violent extremist offending. That there is such a field is clear enough, albeit that the particular field is a relatively new one.

443 The assertion of Mr Walters that Dr Davis is 'a lot more expert than either Ms Dewson or Dr Mischel' is difficult to accept in the circumstances, in light of their proven experience in the specific area of the carrying out of risk assessments in the violent extremist domain, and the fact that to this day, Dr Davis has never carried out such an assessment. That is not to diminish the considerable expertise of Dr Davis in the field of risk assessment more generally, which is well known to this Court.

444 Dr Davis in his evidence showed a distinct lack of regard, bordering on contempt, for the VERA-2R. For reasons he spelt out clearly, he does not believe this tool to be a legitimate one for use due to its lack of predictive validity as a result of the very low recidivism rate for extremist offending. In that respect, his opinions differ from those of Ms Dewson, Dr Mischel and other experts whose evidence in respect of the use of that very tool has been accepted for some years in the Supreme Court of NSW.

445 Furthermore, Dr Davis expressed the strong view that there is no valid way of assessing extremist risk. In the circumstances, I cannot accept that evidence. So to do would be to conclude that there could never be evidence meeting the description of the reports and evidence countenanced by s 105A.8(1)(b) and (c) of the Code. That cannot be so.

446 I am left with the impression, with all due respect to Dr Davis, that his misgivings about the VERA-2R may have clouded his view as to the impossibility of assessing extremist risk. Implicit in his evidence seemed to be the proposition that without an actuarial risk-assessment tool of the type he described, no form of risk-assessment in a particular field would be possible. That surely cannot be correct. It is possible to envisage many situations in which an appropriately qualified expert, equipped with all of the available evidence and data about an individual, and armed with the product of a long interview carried out with the subject, would be able to assess the magnitude of a particular risk posed by the subject without being able to rely on the results of an actuarial risk-assessment tool.

447 Indeed, looking logically at the evidence of Ms Dewson and Dr Mischel, it is apparent that quite aside from the results of the VERA-2R each of them administered, each had access to a vast array of material which, in their expert hands, would be capable of throwing real light on the question of the risk posed by the defendant of future extremist offending. As I said before, the results of the VERA-2R were only a part of the overall picture, a picture which to them, was a very clear one.

448 As I see it, the shortcomings of the VERA-2R, which were openly acknowledged by each of the plaintiff's expert witnesses, do not mean that it is not a useful tool for use in an overall assessment of risk. Both Ms Dewson and Dr Mischel considered it to be so. It has been accepted as such by numerous judges of the Supreme Court of NSW. In the circumstances, I can see no reason why it was not appropriate for this tool to be used as part of the structured professional judgment which each of Ms Dewson and Dr Mischel considered they had carried out in this case.

449 Ms Orr submitted that each of the plaintiff's expert witnesses approached the task of risk assessment in this case pragmatically, applying their clinical judgment and using an appropriate assessment tool. I accept that submission.

450 In the case of Dr Mischel, I make the additional point, as was made by Ms Orr, that her extensive experience with the defendant over the years placed her in a strong position to know him and assess the risk he poses. I further consider that the particular position in which she found herself in carrying out the risk assessment of having been a long-standing clinician to the defendant, may have meant she was not independent, but did not impinge on her ability to provide an accurate risk assessment. Indeed, it would have enhanced it.

451 In the end, what was important in these risk assessments carried out by Ms Dewson and Dr Mischel were not the results spat out by an infallible tool, but the product of their expert clinical judgment upon the vast mass of material at their disposal, including the results of the VERA-2R.

452 I accept the evidence of Ms Dewson and Dr Mischel as to the risk assessments they conducted. I am required to take those assessments into account pursuant to s 105A.8(1) of the Code in deciding whether the defendant poses an unacceptable risk. I propose to do so.

453 I make the observation that the two experts called by the plaintiff reached their clear opinions as to the high risk posed by the defendant without relying on a concluded view as to the validity or truthfulness of his claimed change in ideology, although they did express some misgivings as to the legitimacy of his position. When I come to consider the question whether the plaintiff has satisfied me that the defendant poses an unacceptable risk, as well as being able to have resort to the strong opinions of the experts as to the risk posed, and all of the other evidence, I will contemplate the matter in the knowledge of my concluded view, expressed earlier, that the claimed change of ideology by the defendant is nothing more than a fiction.

454 As for the reports and evidence of Dr Davis, as he clearly conceded, he did not carry out an assessment of the risk of the defendant committing a serious Part 5.3 offence. In those circumstances, I would not be required to take his evidence into account pursuant to s 105A.8(1)(c). As acknowledged by Ms Orr, that does not mean that I would not have regard to the reports and evidence of Dr Davis. I would do so under s 105A.8(1)(i) to the extent that other relevant information is included.

455 There is a good deal of that. Dr Davis had a lot to say about the personality type and attitudes of the defendant which would be relevant to the risk he poses. His evidence would tend to confirm the extent to which the defendant places his own religious knowledge and standing above those of others. He considers himself to be a self-proclaimed Sheikh. He derives satisfaction from his status as a Sheikh, which according to Dr Davis, feeds his narcissism. Dr Davis indicated that the defendant informed him that the cessation of the visits he previously received from many people and the exchanges of mail between him and others, had come about as a result of the actions of CV, rather than through his own choice. The defendant apparently told Dr Davis that he is pretty good at getting people to do what he wants, which he can accomplish because, 'word of God they trust'. The evidence of Dr Davis would tend to confirm the reality that the defendant still feels no remorse for his previous criminal actions, feeling that at the time he had simply been doing his job. Dr Davis indicated, also, that on his perception of it, the defendant was a 'challenging' participant in CISP, that he likely would be in future, and that his apparent unwillingness to engage in CISP in future is a potential concern, as is the continuing desire of the defendant to proselytise in the community. Dr Davis confirmed that the defendant still has a belief in the concept of 72 virgins waiting for him in paradise after his death. Dr Davis indicated that when he asked the defendant whether he would inform authorities if he learnt of a terrorist plot, the defendant replied that he would try to convince the actors to stop. It was the opinion of Dr Davis that the defendant 'was trying to find a balance between his newfound ideology and following his previous rigid rule that he should never inform against fellow Muslims'. Dr Davis confirmed that in his conversations with him, the defendant stated that he could not renounce violent jihad. He indicated that the defendant's narrative suggests that he 'engages in considerable mental gymnastics in order to keep his various rules coherent'. Indeed, Dr Davis stated at one point during his evidence that the defendant 'has got this weird thing where he believes in jihad but not being violent'. Importantly, Dr Davis made it clear that he was not saying that the defendant poses a low risk.

456 Touching on the evidence of the plaintiff's experts, Dr Davis did not challenge the proposition that there was an association between the indicators used in the VERA-2R and violent extremist offending.

457 As already indicated, Dr Davis did not carry out a risk assessment of the defendant. He considered that the best that could be done in the case of the defendant was to refer to factors present in his life when he committed the index offences and seek guidance from these, in what he termed an 'anamnestic' approach. The features he highlighted would, he considered, provide a 'speculative indication' as to whether the risk of inciting others into extremist behaviour is imminent. Dr Davis made it clear that by imminent, he meant 'within the very short-term...within the first couple of weeks of somebody being released'.[180]

458 It should be noted that in no way is it the Court's task to determine whether there is an unacceptable risk of the imminent commission by the defendant of a serious Part 5.3 offence if he released. There is no temporal requirement to the finding.

459 Dr Davis expressed the view that there would be no way of assessing the defendant's risk of terrorist offending unless there was something so blatant that it could overcome the low recidivism rate, in which there would be a 'common sense override'. Ms Orr criticised this common sense approach, but submitted that even if such an approach was taken in the case of the defendant, there is a blatant risk in his case of his committing a further terrorism offence.

460 I am not to be taken as suggesting that the decision of this Court would be made on such limited material, but it does seem to me that there are a number of features of the defendant's presentation and circumstances which, taken in combination, would lend support to the assessments of risk made by Ms Dewson and Dr Mischel. Some may consider these features, in combination, to be blatant, in the sense in which that term was used by Dr Davis.

461 Fifteen years after his arrest for terrorism offending, the defendant exhibits no real signs of regret or remorse for his actions. He maintains the same extremist views which governed his offending and led to his incarceration, in spite of all efforts to shift them. He has developed an even more over-inflated sense of his worth and importance as a religious leader. He continues to feel an obligation to impart his knowledge and beliefs upon others, and harbours the strong desire and a clear willingness to do precisely that. After all these years of incarceration, the defendant still occupies an important place in the hearts and minds of a sector of his community, a matter of which he is acutely aware, and from which the narcissistic aspects of his personality obtain succour.

462 The defendant has a proven track-history of using his position of moral and religious authority or leadership in the community to form a dangerous organisation which had at its core a belief in the validity and desirability of wreaking violence in support of an extreme view of religion, no matter what the consequences. There is nothing to indicate that the personality features or extreme views which led to this occurring have changed or diminished. Indeed, there may be further risk factors which have arisen or been magnified by the passage of time and the experiences of the defendant during that long period. For one, he may have an even more negative view of the system and the government which he sees as responsible for his long incarceration.

463 In considering this question, I have had regard to all of the matters to which I am required to have regard under s 105A.8(1) of the Code. I have considered all of the evidence before the Court, and the submissions made. Importantly, I have taken into account the assessments of risk carried out by each of Ms Dewson and Dr Mischel. I have had regard to the statements of authority as to the practical meaning of unacceptable risk.

464 At the conclusion of her submissions to the Court, Ms Orr submitted:

The plaintiff's position is the defendant was at the time of his offending, and remains today committed to a violent extremist ideology, an ideology that justifies the use of violence in the name of religion. He was and is an influential leader who has no plans to stop teaching and proselytising his ideology. He has made no commitment to continue with the deradicalisation program in which he has participated in recent years if he is released into the community; a deradicalisation program of course in which he has failed to meet his treatment goals. The risk that he will, if released, radicalise others again or that he will guide and encourage people who are already radicalised to engage in acts of terrorism is real and extremely significant for the Australian community and we say it is clearly an unacceptable risk.[181]

465 I accept those submissions. I am satisfied to a high degree of probability, on the basis of admissible evidence, that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community.

Is there any less restrictive measure that would be effective in preventing the unacceptable risk?

466 I have carefully considered the evidence and submissions touching on the question of whether or not the plaintiff has satisfied me that there is no other less restrictive measure that would be effective in preventing the unacceptable risk posed by the defendant.

467 Three possible measures were raised for consideration. One of them, the prospect of 24 hour surveillance being carried out by the police upon the defendant, would be so inadequate and unworkable as to not warrant the label of 'measure'.

468 As to the other two, namely, the control order which would come into effect in interim form should I decline to make a CDO, and the third option, namely, the cancellation of the defendant's non-citizen visa with the subsequent implications of that action, whilst each possesses some superficial attraction, when the overall circumstances of this case are considered, and the virtues and drawbacks of each of the proposed measures are weighed in the mix, it is apparent that neither measure would be effective in preventing the risk posed by the defendant.

469 Largely for the reasons advanced in detail by Ms Orr during the hearing, I am satisfied that there is no other less restrictive measure that would be effective in preventing the risk posed by the defendant in this case.

Should the Court exercise its discretion in favour of the making of a CDO?

470 I turn, finally, to the question of whether or not, having reached the above findings, I should proceed to make the CDO which the findings would entitle me to make.

471 As already indicated, Mr Walters relied upon the decision of the Minister for Home Affairs in making a determination to cancel the defendant's citizenship on 20 November 2020 as being a matter which should lead the court to decline to make a CDO. It was submitted that an evidentiary vacuum exists as to the practical risk scenario should the defendant be deported to Algeria. This, so the submission went, was a situation of the plaintiff's making, and the Court was now being asked to overlook the consequences of this. It would not be a proper exercise of the Court's discretion to make the order sought by the plaintiff, so the submission went.

472 I do not accept those submissions. In my view, the considerations relied upon would not be a proper reason to decline to make a CDO in circumstances where I am satisfied of the matters contained in s 105A.7(1)(b) and (c).

473 No case was drawn to my attention in which a court has declined to make a CDO on discretionary grounds when the statutory criteria have been satisfied. I do not need to ponder the circumstances in which that might properly occur. Suffice to say, this is not such a case.

474 Before I conclude, I consider it appropriate to return to a submission made by Mr Walters at the end of his final submissions to me in this case, in which he emphasised the serious step constituted by the making of a CDO. He said:

The power should only be used in very clear, and we would say, indeed blatant cases, and we say that this case is an unsatisfactory amalgam of suppositions and suspicions. There's no sound scientific risk assessment, there's no expressed intention to commit any relevant crime. Mr Benbrika served his full sentence, including the non-parole period in accordance with the sentence imposed by Bongiorno J, and for the reasons that we've advanced, your Honour, he shouldn't be committed to prison further.[182]

475 It follows from what I have said earlier in this judgment that I do consider this case to be a very clear one for the making of a CDO. I do not accept that the case can be characterised in the way advanced by Mr Walters. Nor do I consider that there is any deficiency in the evidence. To my mind, the evidence was comprehensive and compelling, pointing inescapably to the correct outcome of this case.

476 In my view, the plaintiff's case has been clearly made out to the requisite standard. The only appropriate course is for the Court to make a CDO.

477 As for the duration of the CDO, the maximum period is 3 years. The evidence does not suggest that the unacceptable risk posed by the defendant will dissipate or be otherwise prevented at any particular point during this period. In the circumstances, the CDO will be for a period of 3 years, commencing today.

478 The Court orders that the defendant, Abdul Nacer Benbrika, be subject to a continuing detention order under s 105A.7(1)of the Criminal Code Act 1995 (Cth) ('the Code')

479 Pursuant to s 105A.7(4) of the Code, the continuing detention order will be in force for a period of 3 years commencing today, 24 December 2020, and concluding on 23 December 2023.

480 The effect of the order pursuant to s 105A.3(2) will be to commit the defendant to detention in a prison for the period the order is in force.

481 I note that by operation of law, the plaintiff will be required to apply to the Supreme Court for a review of the continuing detention order before 24 December 2021.[183]

[1] s 105A.2 Criminal Code Act 1995 (Cth) ('the Code').

[2] R v Benbrika and ors [2009] VSC 21 ('Benbrika and ors').

[3] Benbrika v R [2010] VSCA 281; (2010) 29 VR 593.

[4] This account of the facts is largely based on the reasons for sentence of Bongiorno J in R v Benbrika and ors [2009] VSC 21.

[15] The contact between the defendant and the Sydney conspirators is summarised in the Statement of Agreed Facts.

[17] Annexure JAP-01 to first affidavit of Jennifer Perrin, Exhibit G.

[19] Annexure FD-137 to first affidavit of Frank Dumic, Exhibit M.

[28] The leader of Islamic State until his death on 26 October 2019.

[30] The results of the review appear as Annexure [redacted].

[31] The concept of kus akbar is dealt with in the affidavit of Dr Adrian Gully, Exhibit R, at page 56.

[32] Annexure [redacted] to [redacted].

[34] Inserted into the Act on 17 September 2020.

[46] Parole Assessment Report - Commonwealth, 4 September 2017, p 4.

[78] Ibid [76]-78] (citations omitted).

[98] An expert in the field of Islamic studies.

[116] Ibid [135] (citation omitted).

[118] Ibid [147] (citations omitted).

[122] Ibid [165] (citations omitted).

[139] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[148] (1991) 101 CLR 568.

[149] Ms Orr did put it on record that the plaintiff regards the NSW decision of Wales v Donovan [2015] NSWCA 280, insofar as it may govern the current legislative scheme, as being wrongly decided, and that that may be sought to be argued by the plaintiff should this matter find its way to the Court of Appeal.

[150] Lee v Benbrika [2020] FCA 1723 (Exhibit GG).

[153] [2013] VSCA 213; (2013) 41 VR 359 ('Nigro').

[159] Minister for Home Affairs v Benbrika (Ruling No 1) [2020] VSC 886.

[166] [2018] NSWSC 1237 ('Ceissman (No 2)).

[167] [2016] HCA 35; (2016) 258 CLR 308.

[168] See Explanatory Memorandum, Criminal Code Amendment Act (High Risk Terrorist Offenders) Bill 2016 (Cth).

[169] Ibid [165] (citations omitted).

[173] See, for instance, Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722; MTE (No 2) [2020] VSC 356; Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707; Secretary to the Department of Justice and Community Safety v SS [2019] VSC 60.

[174] [2018] NSWCA 328.

[177] Nigro (n 153) [124] (citations omitted).

[178] Sections 105A.8(1)(e), 105A.6(7)(d) and (e), 105A.4(2)(a) the Code.

[183] Section 105A.10(1A) and (1B) the Code.