State of New South Wales v Alam

Supreme Court of NSW|2020-03-19|Before: Wilson J, Dr J

Judgment

HER HONOUR: By Summons filed on 14 October 2019 the State of New South Wales ("the State") asks the Court to make orders, ultimately, for the supervision of the defendant in the community for a period of three years, pursuant to ss 20, 25(1)(a), 26(6) and 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the THRO Act"). The matter came before the Court on 19 March 2020 at the preliminary stage, with the plaintiff seeking orders to facilitate the examination of the defendant by a psychiatrist and psychologist (s 24(5)) and, in the interim, for his supervision (ss 27, 28(1), and 29 of the THRO Act).
The defendant opposes the final orders although, in an affidavit of the day preceding the hearing, he suggested that he would agree to interim supervision as in his own best interests, without conceding that he poses any danger to others.

The Evidence Filed by the State

The State relies upon: 1. Affidavits of Amay Tembe affirmed on 11 October 2019 and 14 February 2020, annexing, respectively, Exhibits AT-1 and AT-2, together with a further affidavit affirmed on 9 March 2020; 2. A further affidavit of Amay Tembe of 9 March 2020 annexing a record of conviction for Talal Alameddine; 3. A psychological risk assessment report ("RAR") prepared by Dr Tamara Sweller on 28 August 2019; and 4. Two expert reports from Dr Roger Shanahan dated 2 May 2019 and 18 October 2019 respectively.

The Defendant's Criminal Past

The defendant was born in 1987. He has a fairly lengthy criminal history that commenced when he was aged about 20 years (Ex. AT-1.1).
In October 2007 the defendant was placed on two supervised bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act) for multiple counts of larceny and destroying property. These bonds were later called up, the defendant having breached them, and the defendant was sentenced to community service orders. When he breached those orders he was again called up, and periods of home detention were imposed.
In November 2007 he was convicted and fined for two offences of having goods in custody. A month later the defendant was subjected to a number of supervised good behaviour bonds of two years in duration pursuant to s 9 of the CSP Act for charges of larceny, and destroying property.
In April 2008 he received two 6 month bonds pursuant to s 12 of the CSP Act, having been convicted of two counts of obtaining money by deception. The defendant breached the bonds and was called up in October 2008, receiving a custodial sentence of 6 months periodic detention.
He has a number of traffic matters against him: for driving whilst license suspended (three offences in 2007); driving whilst disqualified (three in 2008, a further offence in 2010 attracting a full-time sentence of three months imprisonment, three offences in 2016, two of which were penalised by terms of imprisonment, and one in 2017 also attracting a term of imprisonment); and offences of driving under the influence of drugs in 2016 and 2017.
The defendant has been convicted of firearms offences: possessing ammunition without permit in 2009 and a further such offence in 2012; also in 2012 offences of not keep pistol safely, possessing an unregistered pistol, and possessing an unauthorised pistol, all dealt with by way of sentences of imprisonment. In August 2014 he was made the subject of a Firearms Prohibition Order pursuant to s 73 of the Firearms Act 1996 (NSW) by the Commissioner of Police.
The criminal history also records convictions for offences of violence. In March 2013 the defendant was sentenced to two years imprisonment with a non-parole period ("NPP") of fifteen months for an offence of assault occasioning actual bodily harm ("AOABH"). The NPP was conditional upon the defendant participating in anger management and management of emotions programmes, and accepting psychological assessment. The following month he was convicted pursuant to s 10A of the CSP Act of assaulting an officer [a prison officer] in the execution of duty.
Between March 2013 and March 2014 the defendant's conduct was restrained by an Apprehended [Personal or Domestic] Violence Order: p.84, Ex. AT-1.11.
In June 2016 the defendant received custodial sentences for offences of stalking and intimidation, and entering a building with intent to commit an indictable offence. In October 2016 he was gaoled following conviction for three counts of common assault (all relating to assaults upon prison officers).
In August 2018 the defendant was convicted of further traffic offences, the more serious of which resulted in his current term of imprisonment, being driving recklessly in a police pursuit, driving whilst disqualified, and driving in a manner dangerous. For those crimes, and an offence of assault law officer, (the officer being a prisoner officer) the defendant was sentenced to an aggregate term of imprisonment for two years and one month, commencing on 27 April 2018 and expiring on 26 May 2020. The NPP specified was a term of one year and three months. That NPP expired on 26 July 2019 but the defendant was denied (statutory) parole pursuant to s 130 of the Crimes (Administration of Sentences) Act 1999 (NSW).
Other offences dealt with at the same time as the index offences were driving under the influence of drugs, stating a false name, and possession of a prohibited drug. Conviction only penalties were imposed.
In October 2018 the defendant faced further traffic offences, being convicted of driving under the influence of alcohol and driving whilst disqualified, together with possessing a prohibited drug. The two driving matters attracted fines, sentences of imprisonment, and further disqualifications from driving.
In July 2019 the defendant received a term of six months imprisonment, expiring on 1 October 2019, for an offence of entering a building with intent to commit an indictable offence.
The defendant failed to appear before the courts off bail on a number of occasions, and there is one conviction recorded against him for failing to appear.
Statements of Fact or Remarks on Sentence for these crimes forms part of the material before the Court (Ex. AT-1). The conviction for AOABH from 1 March 2013 relates to an offence of 9 January 2011 that took place within a cell in the North Coast Correctional Centre, where the defendant was an inmate held on remand. On that date he assaulted another inmate, an offence detected through closed circuit television footage and forensic evidence. The victim sustained fractures to his left eye socket, jaw, and nose, together with bruising and swelling. The sentencing judge described the violence employed by the defendant as "extreme" and the injuries to the victim as "very serious" (Ex. AT-1, p.72).
Documentation produced (at Ex. AT-1.2) by the Department of Corrective Services ("DCS") records numerous instances of breaches of prison discipline by the defendant, including recently, on 9 July 2019, an incident of assaulting an officer. On 2 November 2019 the defendant was found in possession of methylamphetamine, and on 12 November 2019 he refused to give a urine sample, saying it would be "dirty anyway". There are regular entries over a number of years outlining assaults by the defendant upon DCS staff, threats to rape female officers, assaults upon inmates, inciting other inmates to violence, intimidating others, fighting, extortion, and "standing over" inmates, and other lesser infractions such as having possession of a mobile telephone, possessing tobacco, stealing, creating prohibited goods, and disobeying directions. The defendant was frequently placed into segregation, or subject to other internal discipline.
The Computerised Operational Policing System ("COPS") Event or other entries relating to some of these incidents provide detail of what has been reported against the defendant. For example, in August 2015 the defendant was recorded as one of a number of prison inmates who discovered the address of a DCS staff member, and threatened to burn the officer's house down, and rape and behead her and another officer (Ex. AT-1.10, p.81). In November 2016 the defendant is reported as having threatened, then assaulted, an inmate who wore a crucifix around his neck and identified as a Christian, although the inmate refused to give any details, other than to observe that such things "happen in a gaol" (Ex. AT-1.18, p.104; Ex. AT-1.19, p.105).

Terrorism Links

Some of the prison infractions referred to above have or may have the flavour of religious extremism to them, including the alleged assault upon a Christian inmate who wore a crucifix, or the threat to behead, a form of execution used by Islamic extremists (report of Dr Shanahan, 18 October 2019, at [23], objected to by the defendant).
A Koran found in the defendant's property when he was in custody in February 2011 bore references to "fighting 'til death or others are defeated", and sentiments hostile to the United States of America (Ex. AT-1.21, p. 113).
There is some, generally hearsay, evidence which, if accepted, could establish that the defendant is an Islamic State ("IS" or "ISIS") member, supporter, or sympathiser.
A DCS officer who guarded the defendant when an inmate at Lithgow Gaol noted that his behaviour became more aggressive and threatening from about April 2014. The officer noted that the defendant became focused on television news stories concerning ISIS, and he thought - without being able to be sure - that the defendant had a black ISIS flag displayed on an occasion (Ex. AT-1.22, p.163). Another officer observed a paper in the defendant's vicinity that could have been a black flag.
The increase in aggression from about April 2014 may be significant. Dr. Shanahan notes at [27] of his report of 18 October 2019 (being a disputed section of the report), that there was a dramatic escalation in military activity in Syria at this time, involving conflict between IS and some Western countries, including Australia.
DCS Intelligence reports note that the defendant has been "identified to hold extremist views relating to his Islamic beliefs" and he was suggested to have attempted to fund terrorist organisations, and planned a terror attack in Australia, although the suggestions were recorded as "unsubstantiated" (Ex. AT-1.30, p.197). Threats made on a number of occasions by the defendant (or by persons in his company) to behead DCS staff were noted.
In December 2014 a DCS Intelligence Report observed that, Unsubstantiated information was received from an external source that [the defendant] was implicated in firebombing the home of [a particular family], maintains extremist views, and has links to proscribed terrorist organisation Islamic State (IS) and 'terrorists in the Middle East' (Ex. AT-1.36, p.243).
When asked questions in July 2015 by DCS Intelligence staff (in an attempt to assess the level of security risk posed by the defendant), the defendant said that, […] he was of the belief that all Islamic inmates should adhere to the "eye for an eye" mentality and if an inmate was identified as ADF [Australian Defence Forces] they would be targeted given they represent his country's current enemy.
The defendant referred to "his country" as having been attacked with civilians dying "at the hand of western forces" (p.199). It was understood that by his "country" the defendant was referring to Syria (although his heritage is Lebanese). The defendant also said that he should not be housed with Jewish prisoners, and proclaimed that he was Sunni Muslim, and that Shia Muslims were not truly Islamist. The defendant's asserted religious intolerance is noted (Ex. AT-1.32, p.212).
In December 2018 police received a photograph of the defendant taken on uncertain date showing him with a raised index finger, consistent with a gesture known as the tawhid, a gesture co-opted by IS to symbolise the adherence of its members to the belief in "one god", a fundamentalist approach to Islam. On the defendant's right forearm is a tattoo in Arabic which gives the acronym "Da'ish" (also referred to as "Daesh"), the Arabic language equivalent of ISIS (Ex. AT-1.20, p. 106; report of Dr Shanahan of 2 May 2019, at [9] - [10]).
The defendant is or was a friend and correspondent of an inmate, Talal Alameddine, who is presently serving a very lengthy sentence for a serious terrorism offence. Letters in evidence that were exchanged between the two in recent years relate to matters concerning family and mutual friends, expressions of love, and discussion of custodial conditions: see Ex. AT-1.39 - 48, and the aide-memoire to the exhibit.

Offender Information Management System ("OIMS") Notes and other DCS Documents

Since the defendant has been regularly incarcerated over the last decade or so a substantial body of information about his conduct in custody and under DCS supervision has accumulated.
There are references to the defendant taking a leadership role in the conduct of group prayers by Muslim inmates, and regarding himself as an "Imam". There are also numerous references to the defendant's abusive or violent conduct in custody, to an extent where he was frequently placed in segregation (on something like eleven occasions during his overall time in custody) and on occasion removed to the Individual Violent Offenders Intervention Programme ("IVO-IP") at Lithgow Gaol. An entry from the OIMS notes of 5 August 2013 records that the defendant is "a serious security risk to any correctional centre in which he is housed" (Ex. AT-1.21, p. 124). On the same date he was noted (p. 125) as having asserted that he had become a member of the criminal gang known as Brothers For Life.
Entries in the notes continue to record instances of aggressive conduct by the defendant during his many periods of incarceration, conduct frequently directed at female staff, including verbal abuse of a sexual nature, and assaults such as throwing human waste over staff (for example, at Ex. AT-1.21,p.131; p.161).
The statement of one DCS officer, who worked in the IVO-IP at Lithgow, noted that, after about April 2014, Because the constant threats of violence became so common, nothing really stands out. The abuse and threats became so regular and aggressive that it ended up being a daily occurrence (Ex. AT-1.22, p.163).
In July 2015 the defendant was reported to have made comments about there being "a plan for you guys [DCS officers]" involving "an unpredictable attack" (Ex. AT-1.34, p.224). The author of the report observed that the comments could have been no more than a fabrication intended to frighten staff.
At around this time, the defendant was hospitalised after ingesting a battery and (reportedly) razor blades, action taken by the defendant apparently as some sort of protest at being found guilty of various prison infractions. When subsequently housed in a safe cell his response was to abuse and threaten DCS staff (Ex. AT-1.21,p.136). Similar events occurred at other times: see Ex. AT-1.49 for example, which details an incident in May 2018).
On those occasions when the defendant was on parole, numerous breaches, such as breaches of curfew orders, were noted. When he was returned to custody, reports of threats and violence by the defendant are continuous in the notes (for example, at Ex. AT-1.21, p.152).
It seems that the defendant was not always confident that his conduct would improve in the community. On 25 March 2019 the OIMS notes record the defendant as stating that, away from the routine of gaol, he feels that he is just waiting to do something wrong in the community to be sent back to gaol [..] he always feels like it's just a matter of time before he will go back (Ex. AT-1.21, p.157).

Response to Past Supervision

The defendant has been subject to the supervision of DCS staff almost continuously when in the community since April 2008, when the first supervised bonds were imposed upon him. On only one occasion has his response to supervision been regarded as "adequate" (being the completion of a home detention order); he has breached all other terms of supervised conditional liberty in some way, resulting in his almost continuous incarceration over the last decade or so.
In August 2014 the defendant's parole was breached after only a week at liberty, by the commission of further offences. He was regarded by his supervising Community Corrections Officer as displaying an "inability to adapt to a lawful life in the community" (Ex. AT-1.26, p.171).
In July 2016 the defendant breached his parole by the commission of further offences.
In April 2017 the defendant was breached when on parole, as a consequence of having been charged by police with further offences and remanded in custody. He had, in any event, failed to report as directed during his parole, visited a place he was prohibited from attending, and failed to obey directions (Ex. AT-1.23).

Psychological Assessments

On 29 May 2016 and again on 1 October 2016 Anna-Marie De Santa Brigida, clinical psychologist, assessed the defendant at his own request to prepare a report for his use when being sentenced for three counts of common assault (Ex. AT-1.28). Each of the assaults reflected the defendant's conduct in throwing human waste over three DCS officers at Lithgow Gaol.
The defendant reported being the eldest of his parents' five children, and referred to a degree of estrangement from family members, who all lived law abiding lives, and did not approve of the defendant's criminal conduct. He gave a history of being educated to Year 12 level, although with some changes in schools due to expulsion and very poor performance. He then partially completed a carpentry apprenticeship, before commencing to use prohibited drugs - cannabis and cocaine - at 19 years of age, and engaging in criminal conduct. His frequent incarceration followed.
Although she regarded the defendant as having a "very complicated" psychiatric and psychological profile, having conducted her assessment of him, Ms De Santa Brigida concluded that the defendant had a Conduct Disorder - Adolescent Onset, and a Borderline Personality Disorder ("BPD"), with some anxiety and depression, probably associated with incarceration and BPD.
She noted that some of the history given to her by the defendant that was able to be independently checked, was not accurate. For example, he reported having been admitted as a psychiatric patient to Auburn Hospital, despite hospital records showing that the only contact with him had been out-patient appointments made but not kept. Asserted treatment by a psychiatrist, Dr Tristian Warren, could not be confirmed, with no such doctor able to be located. Ms De Santa Brigida also observed that not all test results could be relied upon as the defendant did not seem to do his best to answer questions in the tests administered to him.
She concluded that the defendant was at high/moderate rate for [general] recidivism.

Risk Assessment

In consideration of the commencement of these proceedings, a Psychological Risk Assessment Report was prepared by Dr Tamara Sweller, on 28 August 2019. Dr Sweller is a Senior Psychologist with the Terrorism High Risk Offenders Unit.
Dr Sweller met and assessed the defendant on two occasions: on 8 August 2019 and 15 August 2019. The defendant participated in approximately 5 hours and 45 minutes of interviews over those days. Dr Sweller had available to her the voluminous documentary record which has accumulated over the course of the criminal proceedings against the defendant and his subsequent incarceration, and which includes OIMS notes and DCS Intelligence reports.
At the time of the interview, the defendant was aged 31 years old. He was cooperative and reported a desire to speak to Dr Sweller due to his ongoing rumination about his situation. He presented with rapid speech that was, at times, "pressured and tangential" ([9] of Dr Sweller's report of 28 August 2019). He felt aggrieved about the perceived injustice of being considered for an order under the THRO Act, a procedure he described as unfair and unreasonable. He stated that there were no facts to support the application, only allegations, and complained that he was "labelled a terrorist based on nil evidence". He stated that he had shown that he could live in the community without putting others at risk through acts of violent extremism, as he had been released from custody and not engaged in such behaviour.
Dr Sweller described the defendant as an "inconsistent historian" when asked about his past (at para [12] of her report). He provided multiple versions of events in relation to the same situation, and information which conflicted with histories taken from him on other occasions. He sought to minimise his prior problematic behaviour, both in custody and in the community.
There was no evidence to suggest that the defendant had cognitive deficits to explain the inconsistent reporting. Dr Sweller thought it more likely that the inconsistencies were a reflection of his attempt to present a positive impression to her.
The defendant gave a history to Dr Sweller of being the eldest of five children to his parent's union. He stated that his parents "cast me out, it was like I was their pet… not allowed to think for myself… my past was shit, I hated it" ([13] of her report). Dr Sweller noted that there was conflicting information regarding the nature of his relationship with his father. Previously, the defendant had reported that he was occasionally subjected to violence perpetrated by his father, which he described as strict paternal discipline. Dr Sweller noted that the defendant had reported to DCS staff on many occasions that his parents flushed his head down the toilet as a means of disciplining him, and he told Dr Sweller that he was the only child in his family to receive physical punishment from his father in his formative years.
The defendant asserted that an incident when he was aged 14 or 15 years old involving his mother had led to a sharp deterioration in his relationship with both parents. Dr Sweller noted that other information suggested the defendant had maintained emotional support from both parents. The defendant's sister had indicated to Community Corrections that the defendant had had a "great" upbringing, with general discipline from their parents.
Dr Sweller observed that the defendant's relationship with his parents appeared to have been adversely affected by a combination of his personality characteristics and associated problematic behaviour, resulting in consistent police contact, and periods of community supervision and incarceration.
The defendant told Dr Sweller that his father was the only family member that had continuously supported him, whereas he and his mother had "never seen eye to eye", due to his criminal lifestyle ([15] of her report). Dr Sweller notes that contrary information is evidenced in DCS file notes, where it is recorded that the defendant left the family home in 2016, after ongoing conflict with his father. In a Community Corrections report referred to by Dr Sweller, the defendant's father described a decade of trauma and destruction caused by the defendant, despite him having been afforded every privilege. The defendant told Dr Sweller that his mother and siblings ostracised him; he believed that this was due to their concerns regarding his criminal activity.
Dr Sweller noted that the defendant's contact with his extended family appeared to be based on criminal activity. The defendant had previously asserted to Community Corrections officers that his "rich cousins" had funded the cost of his daily cocaine habit, and that his extended family was involved in criminal activity. He had also indicated that he did not want any further contact with them.
In relation to the defendant's education and employment history, there was further inconsistency in file information provided. The defendant told Dr Sweller that he hated school and found it very difficult. He was bullied, and always "cast out", as he was not "white" or one of the "cool kids". In year 12, the defendant was suspended from school for having a knife in his possession.
Dr Sweller noted that other documentation showed that the defendant had various periods of employment in unskilled and semi-skilled occupations, including cleaning, sales and in the construction industry. He commenced a degree in Construction Management; however it appeared that he did not complete it. Dr Sweller noted that the defendant owed approximately $200,000 to the State Debt Recovery Office, as well as owing drug-related debt. It was not known whether this latter debt remained outstanding.
In custody, OIMS notes recorded the defendant as unmotivated to engage in employment, being a distraction to other inmates, and argumentative when approached by staff. The defendant said that he intended to gain employment upon release and had discussed carpentry or building work with a friend, despite having no solid plan. He had previously noted to DCS staff, in April 2019, that he did not want to work when he was released from custody.
The defendant reported longstanding substance abuse. He said that he commenced using illicit substances when he was 18 years old. His cocaine use was initially recreational but increased to daily use when he was 19 years old, costing up to $10,000 per week. Previous reports stated that this was paid for by his cousins. The defendant also reported daily cannabis use and, between the ages of 19 and 24, problematic gambling. He told Dr Sweller that he had not previously engaged in rehabilitative treatment for his cocaine abuse. In 2017, he had expressed intent to do so, but then changed his mind. Since discovering that he had a daughter, the defendant said that he had decided he needed to stop using cocaine.
Dr Sweller concluded that drug use appears to continue to be one of the defendant's primary coping strategies. His initial reaction after learning about the present application was to use cocaine. He told Dr Sweller that he had used cocaine in the community and in custody but reported no use in the seven months prior to speaking to her.
The defendant has been the victim of physical attacks. In 2012, he was the victim of a drive-by shooting outside his family home and was hospitalised. He claimed that the shooting was perpetrated by his own mates, in retaliation for his attempt to take over cocaine distribution in his area.
Three months after the shooting, the defendant alleged that he was kidnapped, beaten, and stabbed by unknown assailants. The injuries inflicted then, and in the shooting incident, have affected his ability to maintain employment in the community.
In 2017, the defendant was the victim of a stabbing during the early hours of the morning. Dr Sweller noted that a Breach of Parole Report recorded that the defendant refused to give police the details of the attack or to cooperate with the investigation.
He was treated with benzodiazepines and analgesic medication for his injuries, which he became dependent upon, and then abused.
Dr Sweller noted that the defendant had previously reported experiencing anxiety, depression, post-traumatic stress disorder and paranoia, although Dr Sweller noted Ms De Santa Brigida's opinion that the defendant did not suffer from schizophrenia, despite the symptoms he described. He stated that he heard voices that told him to swallow things and hurt himself. These voices were more frequent when he was in solitary confinement. Dr Sweller also observed that the defendant had previously experienced paranoia, where he thought people were talking about him and out to get him. He also previously reported an issue with angry outbursts followed by amnesia. Assessments suggested that the defendant may have been exaggerating problems to present himself as requiring clinical intervention. Dr Sweller noted that Psychological and Justice Health reports from 2015 - 2016 showed that the defendant met the criteria for a Borderline Personality Disorder diagnosis.
The defendant has poor emotional regulation skills resulting in problematic coping strategies. These include illicit drug use, self-harm, and aggression. He described himself as a very anxious person and emotionally challenged. He told Dr Sweller that he would not ask DCS staff members for help as they were responsible for his problems. Dr Sweller observed that the pattern of difficulties and poor coping strategies displayed by the defendant is consistent with Borderline Personality Disorder.
In custody, the defendant has engaged in self-harm on various occasions. This behaviour appeared to be triggered by a combination of boredom and a desire to leave his cell, attempts to disengage from the non-voluntary IVO-IP at Lithgow Gaol, and attempts to avoid court escorts. The defendant acknowledged to Dr Sweller that he had never experienced suicidal ideation and his self-harming behaviour was to manipulate DCS staff to achieve a desired outcome, such as to be removed from the IVO-IP. He stated that "they had me on so much medication; I didn't know what I was doing" (at para [31] of her report).
The defendant undertook a Personality Assessment Inventory ("PAI"). He reported some stress and anxiety, in addition to a sense of inadequacy and powerlessness. Dr Sweller noted that there were some discrepancies between the defendant's personality profile compared with collateral information. His lifestyle appeared to sit at contrast to his PAI scores; which were reflective of an individual who has a stable, predictable and uneventful life. He reported close connections with family and friends, despite relationships appearing superficial and unstable. Dr Sweller noted that these discrepancies may indicate an attempt to under-report symptoms or reflect poor insight.
The defendant has a limited history of romantic relationships, which he related to his history of incarceration. He told Dr Sweller that he was currently in a romantic relationship, and had been for about a year. After a "one-night stand", he found out that the woman's youngest daughter is likely his biological child. Dr Sweller notes that the defendant's descriptions of this relationship are reflective of his general ambivalence and poor sense of self. The defendant described his partner as his "rock", despite not being in love with her. He said he feels more stable being in a relationship and thought that this would assist him in remaining crime-free upon release. He did not, however, think it would result in a long-term relationship or marriage.
The defendant also had difficulty identifying his friends. He had one friend that he spent time with when last released from custody, who used drugs, but otherwise lived a healthy lifestyle and was married with children. He spoke to Dr Sweller about another friend whose brother [Talal Alameddine] was serving a custodial sentence for terrorism-related offences. This friend was very caring, and would not support the defendant if he started using drugs again. The defendant also stated that he did not want to associate with anyone who was involved in crime upon his release.
Dr Sweller noted that the defendant has a network of associates within organised criminal networks in addition to reported friendships with individuals who are known to hold beliefs commensurate with violent extremism. The defendant told Dr Sweller that he knew people in outlaw motorcycle gangs, and Brothers for Life members. He gave inconsistent accounts of how he knew those people.
The defendant reported that he had spent time with another inmate in the past who was known within the violent extremism sphere. He found this individual's behaviours "shocking". He said he did not share these beliefs and found them uncomfortable. The defendant also referred to his friendship with Talal Alameddine but denied this contact was related to religious ideology. He told Dr Sweller that he had Facebook friends who had links to violent extremism, but he never spoke to them about this.
The defendant discussed his plans upon release from custody. He intended to move out of the Guildford area, and away from his childhood memories and unhelpful influences. He indicated that he was not currently involved with a criminal network but acknowledged that if he were told that he would be provided with money he may become involved again.
The defendant was raised as a Sunni Muslim. He reported to Dr Sweller that he had chosen not to follow a religious school of thought and identifies only as Muslim. His father was a "very moderate Muslim". He feels guilty when he does not pray but has never cemented his beliefs as a proper Muslim and continues to question the fundamentals. He prays more regularly during incarceration than when he has been in the community. He told Dr Sweller that he had "stopped being Muslim" when he had received notice regarding the potential THRO Act application, due to his difficulty coping with this news. He told Dr Sweller that he was interested in ISIS at the time that the group was becoming better known; attracted to the excitement of everyone who spoke about it, rather than the ideology. He does not hold strong religious beliefs of any sort and reported "I'm an Australian citizen, a happy citizen" (at para [47] of her report). Dr Sweller noted that despite his assertions, the defendant had a reported history of making statements that may reflect violent extremist beliefs.
The defendant has a history of criminal violence, dating from 2007, including weapon use, violent and non-violent offences. When he felt mistreated, he reacted with violence in order to threaten and intimidate others. The majority of his violent offence convictions were related to his behaviours in custody towards inmates and staff. His behaviour appeared both reactive, and instrumental. In relation to the incident of the defendant throwing a milk carton with human waste over custodial officers, Dr Sweller observed that this violence may have related to revenge-seeking in order to regain a sense of control and adequacy after the defendant's privileges had been removed. The defendant told Dr Sweller that he had anger issues and only ever engaged in violence when using drugs, even in custody. There was no collateral information available to Dr Sweller regarding the accuracy of this assertion.
Dr Sweller noted that some of the defendant's reported statements and behaviour in custody reflected violent extremist beliefs. She noted that in other documents he had previously admitted he believed all Islamic inmates should adhere to the "eye for an eye" mentality, and if an inmate was associated with the ADF, they would be targeted as they represented his country's current enemy. The defendant denied making this statement and reported that he did not believe in an "eye for an eye". In the second interview with Dr Sweller, the defendant reported that he had forgotten about the statements until he received the THRO Act application, and was still in denial as he did not remember making them. He acknowledges that due to his immaturity and previous mindset, he may have impulsively made such statements.
In relation to the photograph of the defendant making the hand signal with his index finger pointing upwards, associated with IS, the defendant noted that the photograph was taken four or five years ago, after he had won a boxing match. The pose was in response to winning the match and represented "number one" (at para [60] of her report).
The defendant has a tattoo on his arm of the symbol "Da'ish", a name used to refer to ISIS. He told Dr Sweller that he got the tattoo five years ago after a dare from a friend. His motivation was to gain attention and be "cool", and since then he had changed the "D" to an "R" so it no longer read the same.
In relation to custodial supervision, the defendant indicated that when he was initially incarcerated, he felt like he was at school again and decided that, instead of being bullied, he would fight. His general pattern of behaviour in custody presented as dismissive of rules and of individuals in authority, resorting to aggression. There was an active alert in custody regarding threats of rape and violence against female staff. His ongoing behaviour suggested a number of self-regulation limitations including poor problem solving, impulsivity, and hyper-sensitivity with poor emotional regulation capabilities.
Dr Sweller undertook a risk assessment relevant to the defendant. Noting that it is not scientifically possible to accurately predict whether an individual will reoffend, she took into account the available information at the time of the assessment including earlier assessments, and administered tests afresh herself.
In 2018, the defendant was administered the Level of Service Inventory-Revised ("LSI-R") test, and assessed as at moderate-high risk of general offening.
Assessment of the defendant by Dr Sweller in August 2019 using the Violence Risk Scale ("VRS") indicated that he fell within the high range of risk for violent reoffending. The most salient risk indicators included the defendant's personality profile which demonstrated lack of emotional control, impulsivity, violence during institutionalisation, criminal attitudes, and poor compliance with supervision, work ethic and cognitive distortion, as well as his history of association with criminal peers and unstable relationships with family, friends and romantic partners.
In 2019, the defendant also completed the Violence Extremism Risk Assessment- version 2 Revised ("VERA-2R") with Dr Sweller, on two occasions.
Dr Sweller concluded that the defendant falls into the low-moderate risk range in relation to his risk of engaging in politically motivated violence, violent extremism or terrorist activity. The primary circumstances likely to escalate this relate to his peers and criminal opportunism.
Dr Sweller regarded the following risk scenarios as relevant to the defendant's potential to engage in serious terrorism activity: 1. His unstable sense of self combined with poor emotional regulation and problem solving. This may increase his risk of violent extremism if additional factors are also present. If the defendant has contact with peers who hold violent extremist ideologies, he may be at increased risk due to his susceptibility to influence and desire to fit in. He may seek revenge on those he perceives as mistreating or victimising him. If he reverts to using substances, his impulsivity might increase. 2. His poor sense of self may lead him to attaching himself to a particular cause or lifestyle to strengthen his sense of identity. Whilst he denies past and current extremist beliefs and appears not to have a strong adherence to his faith, he is susceptible to extremist interpretations and influence. Further, he may be at increased risk of seeking out previous criminal peers if he does not seek to develop pro-social relationships. 3. Dr Sweller noted that behavioural indicators of increased risk may include increased or exclusionary activities with associates of concern; attendance at places in the community known to intelligence authorities to hold and/or proselytise extremist views; use of language that promotes acceptance of religiously motivated violence; the development of a grievance to western armed forces, or to individuals in authority; rumination on his grievance and feelings of mistreatment; and seeking access to weapons.
Dr Sweller concluded that the defendant's primary risk indicators include his history of violence, history of allegiance to criminal networks and access to funding, susceptibility to influence, perceived grievance and injustice, and expressed emotions in relation to these grievances. Further, Dr Sweller concluded that his personality characteristics including his poor sense of identity, impulsivity and unstable relationships, increase his vulnerability to associate with negative influences and engage in general violence and could extend to involvement in or facilitation of extremist violence and serious terrorism activity.
Dr Sweller considered that, if the defendant is subject to an "ESO", he may benefit from intensive supervision and case management by the DCS Terrorism High Risk Offender and NSW Police Force High Risk Terrorism Offender Units. He may benefit from the development of a suitable risk management plan, which includes pro-social connections, and activities and outlets to replace his anti-social lifestyle. This could also include electronic monitoring to encourage compliance, weekly schedules of movement to monitor activities, reminder calls to assist with meeting reporting obligations, monitoring and restrictions on online activity, and, monitoring and/or restrictions on his associations and activities. An ESO may assist the defendant in developing a pro-social lifestyle within the community and implementing structure. He could also benefit from religious assessment and support.

Risk Intervention

Susan Mitrevski, a Senior Community Corrections Officer with the Terrorism High Risk Offender Unit within the DCS, reviewed relevant documentation, including Dr Sweller's report, and prepared a risk intervention report on 16 November 2019.
Ms Mitrevski had access to the defendant's history of interaction with the DCS, and noted that, in the period 20 October 2007 to 8 July 2019, the defendant was found guilty of 51 institutional offences, and has been frequently held in segregation due to violent or unpredictable behaviour. As at the date of writing, Ms Mitrevski could discern no improvement over time in the defendant's behaviour. She regarded him as, at best, "on a flat trajectory" ([5] of her report).
In the community, Ms Mitrevski observed that the defendant has generally failed to comply with sentences involving his conditional liberty, and responded to supervision in an unsatisfactory way. She set out the defendant's history in that regard, noting that only once has the defendant complied with a community based sentencing order, being a term of 5 months home detention in 2009 - 2010, where his response was regarded as "adequate".
A number of risk factors apply to the defendant in Ms Mitrevski's view. His former access to firearms and demonstrated willingness to possess firearms, including by carrying a concealed pistol, is regarded as posing "a significant risk to the community" and to law enforcement officers (at [10]). He is assessed to be in the high range for the risk of [non-specific] violent offending.
The defendant's links to criminal networks is a risk factor, as is the defendant's violent conduct in custody, particularly in circumstances where some of that violence is reported to be linked to extremist views. His history of drug use, and failure to undertake appropriate rehabilitative programmes, adds to the problem.
Finally, the defendant's mental health presents as a further feature indicative of risk, with the defendant reportedly suffering from anxiety, depression, and Post Traumatic Stress Disorder (after being shot in a drive-by shooting), and having a Borderline Personality Disorder.
To manage these identified risks, Ms Mitrevski regards a combination of supervisory conditions as necessary. These are, 1. monitoring and reporting conditions, involving at least weekly meetings with a supervisor, scheduled and unannounced home visits, attendance upon appropriate rehabilitative programmes and positive activities, and a requirement for truthful reporting by the defendant of his circumstances; 2. requiring the defendant to comply with a schedule of movements, which would ensure appropriate travel, activities, and associations; 3. electronic monitoring, to ensure compliance with curfews, place and person restrictions; 4. a requirement to reside only at an approved residence; 5. restrictions on travel and attendance at particular locations, such as airports; 6. requiring the defendant to obtain approval for any employment, volunteer activity, or education; 7. monitoring the defendant's finances to detect any suspicious activity; 8. drug and alcohol testing; 9. restrictions on persons with whom the defendant may associate; 10. restrictions on using or possessing weapons; 11. monitoring the defendant's access to and use of cars or other vehicles; 12. restrictions upon the defendant's access to the internet, with an absolute prohibition on the use of any encryption services; 13. a power for officers to search the defendant or his residence and to seize any illicit or unapproved items; 14. prohibiting the defendant from accessing extremist literature or other similar material; 15. restricting the defendant from any alteration to his personal details or appearance; and 16. requiring the defendant to undertake appropriate medical or rehabilitative treatment.
Ms Mitrevski noted that a proposal for the defendant to live with his partner is suitable.
She concluded that the defendant has demonstrated that he poses a risk of both general and violent reoffending, but that the restrictions on his liberty that she had proposed should be able to manage that risk effectively in the community

Reports of Dr Shanahan

Dr Shanahan is a Research Fellow with the Lowy Institute with a distinguished military and diplomatic background. His doctorate is in Arabic and Islamic studies, and his particular area of expertise encompasses the use of religiously motivated violence as a political tool.
Dr Shanhan was asked to provide evidence concerning the photograph which shows the defendant standing with his right index finger raised, a tattoo visible on his right forearm. As to the hand signal, Dr Shanahan states that the gesture is a sign of "tawhid", or the oneness of God, which is pronounced at the start of "shahada", the affirmation of the Islamic faith expressed by the formula "There is no God but God". Although the gesture expresses a monotheistic belief generally, Dr Shanahan says that it has been co-opted as part of the symbolism employed by exponents of violent "jihad". It has become closely associated with IS in particular, with many members of that group depicted on social media gesturing with a raised right index finger. It operates as a readily recognisable means of demonstrating adherence to ISIS or IS. In a statement that is objected to by the defendant, Dr Shanahan notes, In this regard the display of the tawhid sign seen in the photo is both ideologically and politically significant and has a direct connection to terrorist ideology through its direct and well known association with Islamic State symbology ([13], report of Dr Shanahan, 2 May 2019).
IS (or ISIS) is described by Dr Shanahan as "an intolerant Salafist jihadist group that seeks […] to implement a purist form of Islamic rule by force" (ibid, at [11]).
The tattoo visible on the defendant's right forearm as he is shown in the photograph is the Arabic script for "Da'ish", which Dr Shanahan says (in a portion of his report to which objection is taken) is an acronym for Dawla al-Islamiyyah fil Iraq wa ash-Sham. In translation, these words mean "Islamic State in Iraq and ash-Sham" (the latter being an historical area including modern-day Syria), or ISIS. The group has been referred to by that and other names, including Islamic State, or IS.
Dr Shanahan is of the view that the display of these symbols is an indication of adherence by the bearer to the philosophy espoused by IS. This opinion is repeated in Dr Shanahan's second report, that of 18 October 2019. The defendant takes objection to the relevant portions of both reports.
In his second report, Dr Shanahan considered some further information provided to him, namely, the defendant's asserted hostility to persons of Jewish faith, to those who identify as Shia Muslims, and to members of the Australian Defence Forces; together with information as to the defendant's reported threats to behead DCS staff members. Dr Shanahan regards each of these features as consistent with views typically held by persons affiliated with IS ideology. The defendant disputes the admissibility of this portion of the report.

The Evidence Filed by the Defendant

The defendant relies upon his own affidavit, sworn on 18 March 2019. In it, he deposes that he understands there to be "a hit out on" him, and that "some people want me dead". The defendant states that he was assaulted in custody by a number of "boys" in January 2020, and he thinks that the safest place for him is in the community under close supervision. He said, I think I have more chance of getting released from custody sooner if I am on an interim supervision order. I don't mind being on the interim supervision order because I won't be doing anything illegal. I do not want to associate with criminals. I want to live a normal life. I have been in gaol for 10 years of my life and the supervision will help me get use [sic] to daily life. I think I need the structure, at least for a bit of time to help me adjust.
The defendant deposed that he does not want to use illegal drugs in the community.
He believes that he will not be granted parole by the Parole Authority as the DCS does not have the resources to ensure his adequate supervision on parole. He regards it as more likely that staff involved in supervising offenders subject to interim or extended supervision orders would be able to supervise him appropriately, thus ensuring his release from custody.
The defendant's solicitor, Christine Hall, has provided an affidavit affirmed on 16 March 2020, which is principally directed to collating some of the more recent and favourable OIMS Notes provided by the State. Of the notes annexed by Ms Hall to her affidavit, an entry from 4 June 2019 records the defendant's partner or former partner, Ms Hennessy, as willing to provide accommodation for him upon his release from prison, living with her and her four children, one of whom may be the daughter of the defendant. A home visit was conducted to her address by DCS staff on 7 June 2019, and the residence was assessed as being suitable and stable accommodation for the defendant. Ms Hennessey was not concerned for her safety or that of her children in having the defendant live with her. She expressed a willingness to encourage the defendant to remain compliant with any conditions attached to his release from custody.
On 7 August 2019 a DCS staff member discussed the State's present application with the defendant. He was reported as emotional, and asserted that he was not a terrorist. The defendant was concerned that, if branded a terrorist, he would be disowned by family, and would lose his parents, "wife", and child. He stated that those of his actions which might have been regarded as linking him to terrorism were jokes, and the photograph of him with an ISIS tattoo had been "photo-shopped", the tattoo being now altered in any event.
An OIMS note of 6 January 2020 refers to the defendant's attitude as greatly improved over the preceding two months, whilst a note of the following day refers to him as showing a "more positive attitude and behaviour lately in the wing". He was described as being helpful to staff, and doing whatever he was asked to do.
On the same day, the Chaplain recorded the defendant as looking forward to his release from custody, and intending to maintain a positive attitude, associating only with the right people. The Chaplain concluded, "he has no thought of harm or violence act [sic]".
An OIMS entry for 20 January 2020 noted that the defendant had been "the victim of an assault" the previous day. He was placed in segregation as a consequence of the assault upon him.
On 5 February 2020 the defendant asked DCS staff for assistance with access to a rehabilitation programme following his release from custody. He said that he had the support of his father and sister in pursuing that goal. The author of the entry observed, Issam reported having many regrets from his former years, he said that he was young and impressionable and "had a chip on my shoulder" with authority. He believes that his past choices and anti-social behaviour was mainly due to his immaturity and peer pressure and he has served many years in custody for "stupidity". […] Issam was polite and co-operative throughout interview, and has some pro-social and appropriate goals for post release.
Some further OIMS and other departmental material were produced by Diane Elston, in her affidavit affirmed on 18 March 2020. Like Ms Hall, Ms Elston is a solicitor assisting the defendant. She too has produced some material from the documentation served upon the defendant by the State.
Some of that material serves to confirm that the defendant was seriously assaulted by a number of other inmates on 18 January 2020 at Shortland Correctional Centre. He was found that day on the floor near his cell, bleeding from the mouth and in a confused state. He had sustained lacerations and bruising to his face and eye area, right ear, and nose. He was transferred to Maitland Hospital for examination and treatment.
Notwithstanding the assault, OIMS entries for 13, 17 and 19 February 2020 record the defendant's concern for his safety if moved to another prison, and his unwillingness to leave the facility at Cessnock.
A protective custody order relevant to him was revoked on 7 March 2020 to facilitate his transfer to another institution, and the following day the defendant was transferred to Mid North Coast Correctional Centre.
A DCS file note of 12 February 2020 records the defendant's surprise at the strictness of conditions associated with an ESO, but his willingness to understand the requirements if made subject to such an order.
Entries for 20 and 26 February 2020 refer to the defendant as polite, well behaved, and focused on his goals for a positive life upon release from custody.

The Legislative Scheme

The primary objective of the THRO Act is given in s 3(1) as to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community.
It is this primary objective, ensuring the safety and protection of the community, which must guide the Court in implementing the legislation.
Section 3(2) provides for another object of the Act, to encourage offenders to undertake rehabilitation.
Orders can be made with respect to an "eligible offender", a phrase defined by s 7 of the Act, as long as a number of statutory preconditions are met. They are, relevantly: 1. The offender was in custody when the application for orders under the Act was filed, serving a sentence of imprisonment for an indictable offence (s 20(a)); 2. The application complies with Part 2 of the THRO Act (s 20(b)); 3. The Court is satisfied that the offender is a convicted NSW terrorism activity offender (s 20(c)); and 4. 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 (s 20(d)).
The defendant does not dispute that he is an eligible offender, that the State's application complies with Part 2 of the Act, or that he falls within the statutory definition of a convicted terrorism offender, at least on the basis of his association with Talal Alameddine, a person who advocated or advocates support for terrorism or violent extremism: s 10(1)(c)(ii).
The defendant does take issue with the question of whether the Court could be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision, even on the basis that the matters asserted in the State's case are accepted at this preliminary stage as able to be proved.
A "serious terrorism offence" is defined by s 4 of the Act as an offence against Part 5.3 of the Commonwealth Criminal Code ("the Code") that carries a maximum sentence upon conviction of 7 years imprisonment or more. Relevant offences proscribed by Part 5.3 of the Code are:

engaging in a terrorist act (s 101.1), where "terrorist act" is widely defined by s 100.1(1) of the Code (for this and all offences referring to such an act) as including a threat made with a relevant intention;
providing or receiving training connected with a terrorist act (s 101.2);
possessing a thing connected with a terrorist act (s 101.4);
collecting or making documents likely to facilitate a terrorist act (s 101.5);
doing any act in preparation or planning for a terrorist act (s 101.6);
directing the activities of a terrorist organisation (s 102.2);
being a member of a terrorist organisation (s 102.3);
recruiting for a terrorist organisation (s 102.4);
providing or receiving training from a terrorist organisation (s 102.5);
funding a terrorist organisation or receiving funds from a terrorist organisation (s 102.6);
providing support for a terrorist organisation (s 102.7);
providing or collecting funds for a terrorist act (s 103.1); and
providing or collecting funds for a terrorist (s 103.2).

The State points in its application to an unacceptable risk of the defendant committing an identified offence contrary to Part 5.3 of the Code, particularly an offence of engaging in a terrorist act, possessing a thing connected with a terrorist act, doing an act in preparation for a terrorist act, or making funds available to or collecting for a terrorist organisation. In my opinion, such specificity is unlikely to be required, having regard to the language employed in s 20 of the Act ("a" serious terrorism offence, not "the" serious terrorism offence).
The Court is to consider the risk of the defendant committing one of the offences referred to in Part 5.3 of the Code, bearing in mind the provisions of s 21 of the THRO Act, which provides that the Court is not required to conclude that the risk of the defendant committing a relevant offence is more likely than not. As I observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71], determination of "unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate". A low risk of a very grave offence being committed may still be an unacceptable risk for the purposes of the Act.

The Submissions of the Parties

The State submits that the defendant is a convicted NSW terrorism activity offender because he is serving a sentence for an indictable offence and because he falls within the terms of both s 10(1)(c)(i) and s 10(1)(c)(ii) of the THRO Act, on the basis that he has advocated support for a terrorist act or an act of violent extremism, and has an association with Talal Alameddine.
With respect to the former, the State points to the tattoo on the defendant's right arm of the Arabic acronym "Da'ish"; the photograph of him gesturing with a raised right index finger; the intelligence that the defendant displayed an IS flag in custody; the general threat the defendant made to any ADF personnel in custody; and the threats to rape or behead DCS staff that the defendant is said to have made.
The latter, pursuant to s10(1)(c)(ii), is said to be established by the evidence of correspondence between the defendant and Talal Alameddine (notwithstanding that there is nothing in the letters which touches on extremist beliefs or ideology). Talal Alameddine is a person who is or was advocating support for a terrorist act or violent extremism, in that he is a person convicted of an offence contrary to s 101.4(2) of the Code, of reckless possession of a thing connected with the preparation of a terrorist act: R v Alameddine (No 3) [2018] NSWSC 681. He is currently serving a sentence of 14 years and 2 months imprisonment for that crime. In sentencing him, Johnson J concluded that the offender indicated "at least a level of sympathy for Islamic State" (at [38]).
The State argues that, having regard to the matters enumerated in s 25(3) of the Act, the Court would conclude that the defendant poses an unacceptable risk of committing a serious terrorism offence, at this preliminary stage.
The State points to the risk assessment undertaken relevant to the defendant by Dr Sweller, who concluded that the defendant is at low-moderate risk of engaging in politically motivated violence. Dr Sweller noted that the defendant is susceptible to the influence of others, has in the past associated with a negative peer group, and feels a sense of injustice at his treatment by society. His particular personality may make him more vulnerable to radicalisation.
The defendant has failed to complete - for various reasons - appropriate rehabilitative programmes when in custody, and has failed to adhere to conditions of supervised liberty pursuant to sentencing orders in the past. He has consistently engaged in violent or abusive conduct in custody, particularly towards prison officers, and has links to criminal groups. Those matters coupled with the defendant's criminal history and evidence of extremist beliefs are indicative, in the State's submission, of a likelihood of the defendant engaging in terrorism offending.
It is submitted that the defendant poses a low to moderate risk of committing an offence involving violent extremist crime, this being a risk which is unacceptable. That being the case, the State contends that the Court would find that, on the basis that the supporting material is proved, the defendant poses an unacceptable risk of committing a serious terrorism offence, unless made subject to supervision, with the conditions sought in the summons.
Although the defendant states in his affidavit that he would not mind being made the subject of an ISO, he does so on a basis not provided for by the THRO Act. He disputes that the label "terrorist" can be applied to him, and disputes the State's contention that he poses any risk of committing a serious terrorism offence, let alone an unacceptable risk.
The defendant concedes that he is an eligible offender, and one to whom s 10(1)(c)(ii) of the Act applies, but submits that the Court could not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. He characterises the State's application as "a weak case for the preventative curtailment of liberty".
The defendant does not accept that all of the material relied upon by the State in support of its application can be properly considered as "supporting documentation". Reliance is placed upon the observations of Rothman J at [20] in State of New South Wales v Loto [2018] NSWSC 1522 that "matters alleged in the supporting documentation" (relevant to an application under the Crimes (High Risk Offenders) Act 2006 (NSW)) must refer to fact and not mere allegations, to argue that those documents containing only rumour or report cannot be considered when determining the application. Further, the defendant submits that only documentation that addresses those matters referred to in s 25(3) of the Act can be characterised as "supporting documentation". On that basis, Dr Shanahan's reports would not fall within the description "supporting documentation", because they do not address the matters referred to in s 25(3) of the Act. Whilst they may be accepted in compliance with ordinary rules of evidence; the admission into evidence of the reports is further hampered by the fact that the Court's leave was not sought to file the reports, they being expert evidence to which rule 31.19 of the Uniform Civil Procedure Rules 2005 ("UCPR") applies.
Further, the defendant submits that the weight of much of the material relied upon by the State - such as the RAR - is negligible, as it is based upon unsubstantiated report and rumour, such as the "hearsay" evidence that the defendant has threatened to rape DCS staff. Evidence which is hearsay, or inadmissible opinion evidence, is not, in the defendant's submission, capable of satisfying the Court, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence.

Consideration

At this preliminary stage, if the offender's current custody will expire before the determination of the proceedings, and the Court is satisfied that the matters alleged in the documentation supporting the application would, if proved, justify the making of an extended supervision order ("ESO"), the Court must make orders for the appointment of appropriate experts to examine the defendant and report to the Court, and for the defendant to attend the examinations: s 24(5). On the same basis, the Court may make an order for the defendant's interim supervision: s 27.
If not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the application must be dismissed: s 24(7).
There is no contention other than that the defendant's current custody will expire prior to the final determination of the application for an ESO. The defendant is serving the balance of term of his sentence, a sentence which will expire on 26 May 2020. The Parole Authority is due to reconsider the question of the defendant's admission to parole on 31 March 2020. It is possible that the defendant will be admitted to parole at the end of this month, but he must be released from prison on 26 May 2020 at the latest. The hearing of the State's application for the final orders sought in the Summons could not be heard by the latest date, and thus, s 27(a) of the Act is met.
The Court must next turn to the terms of s 27(b): does it appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
There is a question as to what of the State's evidence may properly be regarded as "supporting documentation", and what may be accepted to be "the matters alleged" (s 24(5) and s27(b)).
There is also a dispute as to the interpretation and application of s 24(5) and s 27(b), and specifically, how the test encompassed by the language of the section is to be understood. Section 24(5), which provides the Court with the power to order expert assessments of the offender, provides: (5) If, following the preliminary hearing, [the Supreme Court] is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders [….].
Section 27(b), which provides for interim supervision orders, is in similar terms. An order may be made if s 27(a) is satisfied, and it appears to the Court, (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
The plaintiff, referring to State of NSW v Lynn [2013] NSWSC 1147 at [18] per Button J (a decision under the broadly comparable Crimes (High Risk Offenders) Act 2006 (NSW)) describes the test as "not a stringent one" and, by reference to State of NSW v Manners [2008] NSWSC 1242 at [8] per Johnson J, one which is similar to the prima facie case test applied by magistrates as part of committal proceedings as they were formerly conducted under the now repealed s 65(1) of the Criminal Procedure Act 1986 (NSW).
Conceding that the test as described by the plaintiff has been frequently applied in the Supreme Court, the defendant contends that, nevertheless, it is an outmoded analogy by which to understand what is required of the Court by s 24(5) of the THRO Act. The Court was referred to State of New South Wales v Sancar [2016] NSWSC 867 at [74] per Garling J, State of New South Wales v Thurston [2017] NSWSC 1760 at [19] - [20] per Rothman J, State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [18] - [19], per R A Hulme J, and State of New South Wales v DK (Preliminary) [2018] NSWSC 1947 at [11] per Fullerton J.
In State of New South Wales v Naaman (No 2) [2018] NSWCA 328 the Court of Appeal observed at [17] that the determination made at the interim stage was made to "a lower standard than applies to the making of an extended supervision order".
Accepting that a lower standard applies to the present determination than that which will apply at any final hearing, the Court must consider the matters alleged in the supporting documentation. Noting the dispute as to what the term "supporting documentation" means, it must firstly be decided what constitutes the "supporting documentation" to the State's application, before turning to the matters alleged therein.
The term is specifically defined in s 4 of the THRO Act to mean "the documentation referred to [relevantly] in s 23(3)".
Section 23(3) provides for an application for an ESO under the Act to be supported by (pursuant to ss(3)(a)) documentation addressing those matters referred to in s 25(3), and (pursuant to ss (3)(b)) a report from an appropriately qualified expert.
Section 25(3) of the Act provides: 25 Determination of application for extended supervision order […] (3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (h) the likelihood that the offender will comply with the obligations of an extended supervision order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole, or (ii) subject to a control order, or (iii) subject to an earlier extended supervision order or interim supervision order, or (iv) subject to any other order of a court, (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.
Although ss(3)(a) - (l) refer to documentation going to very specific matters, the opening paragraph to the sub-section makes provision for the Court to have regard to a much broader range of information - "any other matter it considers relevant" - which, it seems, includes documentation that need not fall within any of the particular descriptions provided by ss(3)(a) to (l). Section 25(3)(m) is similarly broad, and provides for the Court to have regard to "any other information" relevant to the likelihood of the defendant committing a serious terrorism offence.
The breadth of those provisions would include, in my opinion, the reports of Dr Shanahan, or at least those portions of his reports which advance matters of fact. This includes the information concerning the proscribed terrorist organisation IS, and the meaning and political relevance of the defendant's tattoo and raised right finger as depicted in the photograph of him. Those parts of the reports which contain factual matters and which can be accepted as falling within the term "supporting documentation" are [1] - [13], [18] of the report of 2 May 2019; and [1] - [9], [11] - [12], [14] - first sentence of [19], and [20] - [26] of the report of 18 October 2019, but would not necessarily include Dr Shanahan's opinions as to the meaning to be drawn from the matters of fact. Arguably, that is a conclusion reserved for the Court.
I have proceeded on that basis, and considered those parts of Dr Shanahan's reports which set out information within his knowledge, but not those matters about which he has drawn a conclusion about the defendant's motivation or intent.
Of course, the fact that any particular document is "supporting documentation" does not necessarily mean that its contents will be "matters alleged" by the State. As a matter of common sense, a matter alleged would have to have some proper foundation, and could not include matters of rumour, possibilities unfounded in fact, or wholly unsupported speculation.
For example, intelligence reports and the like fall within the phrase "supporting documentation", but not all of the contents of each of those documents are relied upon by the State as matters alleged by it. Some matters patently could not be matters alleged, such as the report of the defendant threatening some unspecified "action" to DCS officers, a threat unrelated to ideology that was recognised at the time as potentially being an empty threat made to cause fear, rather than one with any real substance behind it; or the speculation that an assault upon a fellow prison inmate who wore a crucifix about his neck was motivated by extremist beliefs. Similarly, those reports that contain no more than rumours recognised to be "unsubstantiated" could not refer to matters alleged, there being no evidence of any proper basis for such allegations.
In summary, the State alleges a number of matters which, if proved, would justify the making of an ESO. They are: 1. that the defendant is tattooed with an Arabic language acronym for the Arabic equivalent of ISIS, from which his membership of or support for that terrorist organisation may be inferred; 2. That he has been captured in a photograph standing with his right index finger raised (the "tawhid"), a gesture from which the Court may also infer his support for ISIS; 3. That the defendant has displayed a black ISIS flag, a fact from which the Court can also conclude his support of extremism; 4. That the defendant has threatened ADF personnel because they represent the enemy of his country; 5. That the defendant has threatened to carry out acts of violence (to behead and rape) of such a nature as to evidence his support for extremist ideology; and 6. That the defendant maintains a friendship with a convicted terrorism offender, from which his subscription to a terrorist belief system may be inferred.
The question now is whether these matters as alleged in the supporting documentation would, if proved, justify the making of an ESO: s 24(5); 27(b).
Section 20 of the Act sets out the matters which must be established for an ESO to be made. Although they are summarised at 125 to (4) above, it is convenient to reproduce s 20 here: 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
Of those matters referred to in s 20, and on the basis that the matters alleged can be proved, the evidence readily satisfies s 20(a)(i), and s 20(b).
I am less sanguine as to the capacity of the evidence to satisfy s 20(c), but am prepared at this preliminary stage to accept that s 20(c)(i) can be satisfied on either or both of two bases: that the defendant has had a personal association with Talal Alameddine which brings him within the operation of s 10(1)(c)(ii) of the Act (even if in the most technical and threadbare way); and that the tattoo of "Da'ish" (or "DAESH") adorning the defendant's right arm amounts to the display of a symbol associated with a group or organisation that supports violent extremism (ISIS), thus bringing him within s 10(1A)(a)(ii) of the Act. Having so concluded, it is not necessary to determine whether an image of the defendant holding a raised right index finger, devoid of any context that clearly links the gesture to extremist ideology, is also evidence of his advocacy of terrorist acts.
The point at which the State's application fails, however, is in the fourth and final matter of which the Court must be satisfied, to a high degree of probability, that being that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. Of s 20(d) the Court of Appeal said, at [29] of Naaman (No 2), Paragraph (d) is a complicated provision, and in light of the State's submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately. (1) First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. (2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". (4) Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence". 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. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.
Everything in the State's evidence points to a conclusion that the defendant is highly likely to commit crime, and even violent crime, if released from prison without a regime of close supervision. Indeed, it is likely that even close supervision will be insufficient to prevent the defendant from committing crime.
The defendant has a long and consistent history of anti-social conduct, characterised by defiance of both the criminal law and of societal norms of decent conduct. He typically conducts himself in a violent and aggressive way when confronted by law enforcement officers and when in custody, and he presents as a dangerous menace to both arresting police or those DCS staff unfortunate enough to be obliged to supervise him. That he has in the past been able to acquire firearms is deeply troubling, and presents as a significant cause for concern with respect to his possible future violent criminal behaviour. The defendant is a serial traffic offender, and must be regarded as being unlikely to comply with the lengthy disqualification from driving that applies to him. He is an untreated drug addict, a fact that is likely to lead to ongoing criminality.
Every risk assessment has placed him at a high risk of violent or general recidivism, and the defendant himself has expressed a pessimistic opinion concerning his capacity to live in the community without committing crime and being returned to prison.
However, even taking all of that evidence together, and making the determination to the lower standard referred to in Naaman (No 2), I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. The point made by the Court of Appeal at 29 of Naaman (No 2) is particularly instructive: the issue posed by the statute is not resolved by mere speculation. Much of the State's evidence requires the Court to speculate, or involves accepting the speculation of others.
It is important to bear in mind the specificity of the nature of the risk, that of committing a "serious terrorism offence". Such offences relate to the commission or threat of the commission of a terrorist act, or the provision of some aid to a terrorist organisation. A terrorist act is defined by s 100.1 of the Code as, "terrorist act" means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public.
A terrorist organisation is defined by s 102.1 of the Code as, "terrorist organisation" means: (a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4) ).
(Sub-sections (2), (3) and (4) need not be considered for present purposes.)
Whilst the defendant is a regular offender against the criminal law, and is likely to remain so, he has never been convicted of any offence committed in support of a particular ideology, extremist or otherwise, or with the intention of coercing, or influencing by intimidation, the public or government (s 100.1 of the Code). The index offences which keep the defendant in his present custody are a useful example: they are entirely unconnected with ideology, religion, or politics, and bear no relationship to serious terrorism offences.
There is no evidence that the defendant has ever threatened to commit a serious terrorism offence. Although there is some evidence of a threat made by the defendant to DCS staff concerning a "training exercise", even taking that evidence at its highest it does not amount to a threat to commit an offence captured by Part 5.3 of the Code. Neither does his expressed hostility to ADF personnel or those of other faiths amount to evidence supporting a conclusion that the defendant poses an unacceptable threat of committing a serious terrorism offence.
The threats to rape and behead, if proven as alleged, could do no more than establish that the defendant made such a threat, or that he was in a group of persons from which threats of that nature emanated. Even if the defendant did make the threats, the surrounding circumstances do not suggest that they were made in support of an extremist ideology, but rather as part of an ongoing dispute with DCS staff not connected to religion or politics.
The evidence of the defendant having possession of or displaying a black flag with white writing on it can do no more than establish that bare proposition: there is no evidence that he in fact possessed an ISIS flag. Neither of the DCS officers who saw a black flag-like object in the vicinity of the defendant or his cell took possession of it or could describe it clearly. There is no evidence to directly link the object or objects to the defendant, or to ISIS. Evidence concerning the mobile telephone in the defendant's possession on 2 December 2016 that was "believed" by DCS staff to contain ISIS or terrorism related material, was never recovered, and there is no evidence as to the basis of the belief being anything other than speculation.
The evidence of the tattoo that the defendant has on his arm, even setting aside his explanations concerning it, says little without some broader context to give the evidence the relevance the State contends for.
The fact that the defendant is a Muslim, has attended a mosque, or led prayers, cannot of itself give that context.
Neither can his friendship with Talal Alameddine point to the prospect of the defendant committing a serious terrorism offence, since there is no evidence that the friendship is based upon, or encompasses, a shared extremist ideology, or that the two have ever discussed or corresponded about matters connected with extremism. There is no evidence that Alameddine himself continues to express sympathy for extremism.
Dr Sweller's report must be seen against that overall background.
Of the actuarial assessment tools used to assess the risk posed by the defendant, only the VERA-2R specifically measures the risk of politically motivated violence. The other actuarial tools employed by Dr Sweller do not specifically assess that risk. The LSI-R assesses the risk of general reoffending. The VRS assesses the risk of recidivist violence for forensic subjects.
The VERA-2R tool incorporates intelligence and policing information, together with other features. Unlike other actuarial risk assessment tools, the VERA-2R requires the assessor to have regard to information beyond the test results and make a judgment based upon all of the information. Much of the material provided to Dr Sweller and on which she based her assessment of the defendant, at least in part, is speculative, has no foundation in any factual information, or is inconclusive of the meaning ascribed to it.
Even so, having assessed the defendant as presenting as at high risk of violent reoffending, and at a moderate to high risk of general reoffending, Dr Sweller placed the defendant within the low to moderate category for the risk of extremist violence.
Dr Sweller observed that the process of risk assessment of violent extremism or politically motivated violence is comparatively new and, one of the consequences of its newness is that the sample against which others are compared is small. Therefore, [..] any prediction of future engagement in acts of violent extremism, politically motivated violence or terrorism related offences does not have the statistical basis common in other ordinary criminal offending risk assessment tools (at [81]). .
The assessment provided "is based on the clinician's assessment of the available information at the time of the assessment" (at [82]). Much of the information provided to Dr Sweller, and to which she (necessarily) had regard is, as noted above, based upon speculation or conjecture.
The defendant's complaint to Dr Sweller to have been labelled a terrorist on "nil evidence" is not wholly without foundation.
The THRO Act is not designed to prevent the commission of ordinary crime, or to minimise the risk that such crime will occur. Neither is it intended to facilitate the protection of an offender from those who may wish him harm, or assist him in securing release from custody. It is not intended to provide an alternative to parole. It is directed to protecting the community from an unacceptable risk of the commission of a serious terrorism offence.
Whilst I think it is highly likely that the defendant will continue to engage in criminal conduct when released to the community, to the jeopardy of others, I am not able to conclude that he may pose an unacceptable risk to the community by engaging in the commission of a serious terrorism offence. He presents as a violent offender who is unable to conform to a law abiding life and, when in custody, who poses a serious management issue for the Corrections authority. He does not present as posing, if not kept under supervision, an unacceptable risk of committing the very specific politically or ideologically motivated offences from which the Act aims to protect the community.
He would benefit from an extensive period of strictly supervised parole, but that is not the function of orders such as those sought by the State.
The State has failed to establish those matters of which the Court must be satisfied to make orders pursuant to s 24(5) and s 27 of the Act. Accordingly, the Summons must be dismissed.

Costs

Subject to hearing any specific application, I would not make an order for costs. This is an application properly placed before the Court, in the interests of the community's safety, and both parties are publically funded.

ORders 1. The summons filed on 14 October 2019 is dismissed. 2. Subject to order (3) no order as to costs. 3. Should the defendant seek an order for costs, he is to file and serve an application and submissions in support in writing within seven days. The State should file and serve any submissions in reply seven days thereafter. Any application for costs will be determined by the Court on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2020

Criminal Code Crimes (Administration of Sentences) Act 1999(NSW)

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