State of New South Wales v Barez

The State's case in summary

1. The State submitted that the application for the ESO satisfies the statutory preconditions for the making of an order under s 20(d) of the THRO Act for the following reasons: 1. The defendant is an "eligible offender" (as defined in s 7), being over 18 years of age and serving a sentence of imprisonment for a New South Wales indictable offence (as defined in s 4), being "the index offending". The defendant was on parole for that offending at the time the Summons was filed (as provided for in s 6); and 2. The defendant is a "convicted NSW terrorism activity offender" as defined in ss 10(1)(c)(i) and (ii) of the THRO Act in that, whilst serving a sentence of imprisonment for a NSW indictable offence, he made a statement advocating support for a terrorist act or violent extremism and/or had a business affiliation with persons advocating support for terrorist acts or violent extremism; and 3. It is open to the Court to be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if he is not kept under supervision.
2. The State further submitted that because the defendant's current supervision under parole will expire before the proceedings for final relief are determined, and because the Court would be satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an ESO, the statutory preconditions in s 27 of the THRO Act for the making of an ISO are satisfied.

Advocating support for any terrorist act or violent extremism - s 10(1)(c)(i)

1. The concept of "advocating support" for a terrorist act or violent extremism in ss 10(1)(c)(i) and (ii) is described in statutory language encompassing a broad range of conduct, including where the eligible offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.
2. In s 10(1A)(b) advocating support for any terrorist act or violent extremism also includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.
3. "Terrorist acts" in s 10(1)(c) takes the same meaning as given to the term in Part 5.3 of the Criminal Code Act 1995 (Cth) ("the Criminal Code").

The attitude of the defendant in the preliminary hearing

1. At the preliminary hearing the defendant conceded that his status as an "eligible offender" and a "convicted NSW terrorism activity offender" is established on the evidence. Subject only to the Court being satisfied under s 27(b) of the THRO Act that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, he also accepted that the Court has jurisdiction under s 27 to make an ISO. He did not wish to be heard as to whether discretionary considerations would operate against the making of an ISO.
2. The defendant does, however, oppose some of the conditions sought by the State for his supervision under the interim order. The range and type of conditions in ss 29(1)(a)-(t) that the Court might consider appropriate to impose on an interim basis (including the conditions in s 29A(1)(a)-(r) which must be imposed unless the Court comes to the contrary view) was the focus of submissions at the preliminary hearing. Those submissions will be considered later in this judgment.
3. In conceding that the plaintiff's application for the ESO was made in accordance with Part 2 of the THRO Act, the defendant acknowledged (or did not put in issue at the preliminary hearing) that the application was supported by documentation addressing each of the matters referred to in s 25(3) of the THRO Act, including, in particular, the risk assessment reports in which Ms Terry assessed the defendant's likelihood of committing a serious terrorism offence as moderate, a matter fundamental to the Court being satisfied that an ISO should be made (see ss 25(3)(b) and (c) of the Act).
4. Although the defendant did not wish to be heard as to whether the evidence allows for a finding that he is a "convicted NSW terrorism activity offender" under s 10(1)(c)(i) or (ii) or the related question, whether the Court would be satisfied to a high degree of probability that the supporting documentation (if proved at the final hearing) supports the making of an ESO, the evidence bearing upon both questions will be set out in summary, including the matters in s 25(3) of the THRO Act to which I am obliged to have regard.

Advocating support for any terrorist act or violent extremism - s 10(1)(c)(i)

1. In February 2014, while in custody for the index offending, the defendant had the letters "ALQAEDA" surreptitiously tattooed along the length of his left arm. Pursuant to cl 4 of the Criminal Code (Terrorist Organisation - Al-Qa'ida) Regulations 2019 (Cth), Al-Qaeda is a proscribed terrorist organisation. At the time the tattoo was discovered by Corrective Services officers, only the letters "ALQ" had been fully inked. Sometime between February 2014 and 30 April 2014, the remaining letters were completed.
2. Further, on 29 March 2014, the defendant is alleged to have said to a Corrective Services Officer, "I wish I had an RPG [rocket propelled grenade] I would blow that plane out of the sky" (referring to a plane flying over the prison). The officer asked the defendant whether he was "inspiring [sic] to be a terrorist", to which the defendant replied, "Well I'm not an extremist but I love Al-Qaeda".
3. On 30 January 2017, following his release to parole in November 2016, the defendant also told police in a routine roadside vehicle stop when they asked about the tattoo, "It's what I believe". I accept that in recent times the defendant has apparently taken steps to have the tattoo surgically removed. However, it appears that decision is influenced by aesthetic considerations and possible health concerns as distinct from a rejection of his allegiance to Al-Qaeda.
4. I am satisfied that the defendant's apparent determination to have the tattoo applied in prison, utilising prohibited materials and equipment, evidences (at least as at 2014 but likely extending into 2017) his support for the Al-Qaeda terrorist organisation and a desire for affinity with its terrorist ideologies, including the terrorist acts and violent extremism the organisation has engaged in over a lengthy period in various parts of the world. That finding is supported by the defendant acknowledging in an interview with Ms Terry in July 2019, conducted for the purposes of the preparation of the Risk Assessment Report, that he supported Al-Qaeda for a period of approximately two years, albeit with the stated proviso that he "didn't know any better". I also note that although the defendant denied any current extremist beliefs or continuing allegiance with terrorist organisations in that interview, he acknowledged a continuing association with individuals who hold extreme religious beliefs.
5. In Ms Terry's second Risk Assessment Report of September 2019, after taking into consideration the expert report of Dr Shanahan and additional information provided to her that indicated the defendant's continued association with individuals who have either held or currently hold extreme religious views, or have been linked by their own conduct to violent extremism, she concluded that the defendant continues to endorse beliefs which support extremist views of Islam. She regarded that as a shift in his attitude from what he had reported to her in July 2019.

An association or affiliation with others advocating support for any terrorist act or violent extremism - s 10(1)(c)(ii)

1. The State identified three named individuals with whom the defendant has a current and continuing association as persons who have advocated support for violent extremism and/or terrorist acts in the past.
2. On 2 August 2019, traffic police stopped a vehicle in Parramatta. The defendant was driving the car. Mr EB (name suppressed) was a passenger.
3. On 6 October 2017, Mr EB pleaded guilty to giving/receiving services to promote an offence under Div 119 of the Criminal Code, namely, intentionally performing services to assist Amin Elmir to enter Syria with the intention of engaging in hostile activities aimed at, inter alia, the overthrow of the Syrian government contrary to s 119.4(5) of the Criminal Code.
4. By that offending, I am satisfied that Mr EB is a person who is or was "advocating support for any terrorist act or violent extremism" as provided for in s 10(1)(c)(ii). I am further satisfied that following enquiries by the Australian Federal Police, there is a current and continuing association between Mr EB and the defendant. As at 19 July 2019, the two were purportedly working together at Centrix (or Zentrix) Carpentry (the relevance of which see later).
5. On 4 July 2019, police executed a search warrant at the residential address of Ahmed Elomar. Mr Elomar is currently the subject of an ESO imposed under the THRO Act and is subject to supervision by the NSW Police Force's High Risk Terrorist Offender Unit. It would appear that he has been prosecuted for breach of that order, however, it is unclear whether he is serving or has served a sentence for that breach.
6. In executing the search warrant at Mr Elomar's residence in July 2019, police conducted a Cellbrite examination of the phone of Mr Elomar's mother which revealed that Mr Elomar had been using that phone to communicate with a number of people, including the defendant, via the WhatsApp messaging service. Their communications included discussion about the possibility of going for a "horse ride" together. Mr Elomar sent the defendant an image of the branding for what is said to be his horse stud, which - according to Dr Shanahan - bears a remarkable resemblance to the Islamic State flag. I note the "logo" or emblem of the horse stud does not provide any details as to its location. The horse stud emblem includes the word "Baqiyah". Dr Shanahan links that word to the Islamic State motto, "Baqiyah wa tatamaddad", which which translates to "remaining and expanding". Dr Shanahan reports that the fifth edition of the Islamic State magazine Dabiq bears the title "Remaining and Expanding".
7. Among other things the defendant sent to Mr Elomar via the WhatsApp messaging service a video of himself riding a horse and another video of himself using a traditional bow and arrow in which he attaches the commentary, "… teaches the traditional way the Ottomans used to do it" and "Not the English way".
8. Dr Shanahan reported upon the significance of horses, horse riding and archery to the concept of jihad and equated those activities with the values of living according to the dictates of historical Islamic militarism: The combination of images in the brief (horses and archery) would indicate some type of affinity with historical Islamic practices related to the conduct of jihad.
9. He went on to say: The tattoo of a proscribed Islamist terrorist group on the [defendant's] left arm, as well as the sign of the horse stud that has similarities to another proscribed Islamist terrorist group's flag and the stud's name that is the same as Islamic State's motto means that it is reasonable to believe that the persons sharing these images hold a radicalized view of Islam.
10. Both Mr Elomar and the defendant also currently attend the Bodypunch Boxing Gym in Lakemba where they engage in training for and competing in martial arts. In Ms Terry's supplementary Risk Assessment Report she noted that within the supplementary materials she had available to her the defendant was seen using a bow and arrow in a public place. Although this resulted in police attention, no action was taken.
11. Finally, the State relies upon an association between Muhammad Wahabzadah and the defendant. Mr Wahabzadah is nominated as the person associated with Zentrix Carpentry in the Australian Business register, under s 27(4) of the A New Tax System (Australian Business Number) Act 1999 (Cth), current as of 9 July 2019 (elsewhere referred to as Centrix Carpentry). The defendant informed Ms Terry that he works as a carpenter for this business two days a week, with the balance of his working week committed to working in a rug business operated by his father. There is no further evidence as to the commercial profile of the carpentry business; Mr Wahabzadah, is however known to police. He was arrested in August 2016 for possession of a loaded Remington rifle, 24 rounds of ammunition, knives, knuckle dusters, an Islamic Brotherhood embossed sweater, an Islamic State flag and various items of what was described as "Islamic literature". He was also dealt with in the Children's Court in April 2018 for a number of offences of violence, including a charge of reckless wounding which is listed for sentence in the Blacktown Local Court in January 2020.
12. On the basis of the defendant's association with the three named people referred to above, I am satisfied that he is a "convicted NSW terrorism activity offender" by reason of his association or affiliation with them as persons advocating "support for a terrorist act or violent extremism" as provided for in s 10(1)(c)(ii) of the THRO Act.
13. That finding also informs the related question under s 27(b), namely whether the material evidencing an association of that kind and other material comprising the supporting documentation which evidences the defendant's support for a terrorist act or violent extremism would, if proved, justify the making of an ISO. That question then engages the question posed by s 20(d) of THRO Act, namely whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.
14. In the context of the THRO Act, the relevant threshold under s 27(b) in a preliminary hearing has been variously described in the authorities consistently with the test not being a stringent one. In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 at [7]-[10], Rothman J rejected the submission that "prima facie" proof of the matters alleged in the supporting documents is required, taking the approach that the term "matters alleged" (in the supporting documentation) in s 27(b) does not refer to a conclusion but to matters of fact which, if proved, would be open to lead to a particular conclusion. In the context of the enquiry under s 27(b), the State is obliged to identify certain facts in the supporting documentation which, if proved, would lead to a conclusion that would justify the making of an ESO.
15. Consistent with the approach favoured by Rothman J, (to the extent that it differs from an approach which obliges the Court to assess the evidence to a "prima facie" standard) the enquiry at this stage in the proceedings is whether the State has persuaded the Court, on the materials tendered in the proceedings, that there is a proper and adequate basis for the defendant to be supervised on an interim basis. Consistent with the objectives in s 3 of the THRO Act being to provide for the extended supervision of certain offenders posing an unacceptable risk of committing serious terrorism offences to ensure the safety and protection of the community, risk avoidance is the focus of that enquiry. I accept that another statutory objective is to encourage eligible offenders to undertake rehabilitation.
16. I have considered the mandatory considerations for the making of an ESO in s 25(3) of the THRO Act. However, for the purposes of the preliminary hearing, the primary focus is on the considerations set out below, with the paramount consideration being the safety and protection of the community as provided under s 25(2) of the THRO Act.
17. The impact of an ESO on a defendant's liberty and freedom of association may be relevant to the exercise of the discretion to make the interim orders, but it is not to be taken into account in determining whether the preconditions to making a supervision order, on either an interim or final basis, are satisfied.

Presentation during interview

1. In the Executive Summary to the Risk Assessment Report, it was noted: [The defendant] is a 26 year old male of Afghan descent who was born in Australia, with a relatively stable upbringing. [His] offence history is exclusively related to interpersonal violence and aggression perpetrated alongside his peers, including the use of weapons. [The defendant's] pattern of interpersonal violence commenced during adolescence across a variety of contexts including, group based physical violence at school, criminal violence and institutional violence whilst incarcerated. He currently holds enforceable Weapons and Firearms Prohibition orders. [The defendant] is currently under the supervision of Community Corrections and appears to have demonstrated a period of relative stability. He presents with limited insight into his personal history, or factors which might precipitate or perpetuate his offending and high risk situations.
2. The defendant participated in two interviews for a total of three hours for the purpose of the Risk Assessment Reports. On both occasions, he arrived some 40 minutes late, but is described as having been "easily engaged, albeit distracted at times".
3. Ms Terry observed that the defendant "at times presented as a poor historian, particularly with respect to discussing his history of aggression and peer relationships".

General offending risk assessment

1. Ms Terry noted that in December 2018, on application of the LSI-R actuarial risk tool to assess the defendant's risk of general reoffending, a score of 9 (out of a possible 54) was returned, placing him in the low risk category. However, in July 2019, on application of the Violence Risk Scale (VRS), a score was yielded placing him in the high risk category.

Violent extremism risk assessment

1. Ms Terry also applied the Violent Extremism Risk Assessment - 2R (VERA-2R), a structured risk assessment tool, which yielded an overall risk profile for extremist violent offending in the moderate range.
2. Ms Terry identified a number of risk factors underpinning that risk assessment, the most significant of which related to the defendant's current and continuing association with the men named earlier who the evidence indicates hold (or have held) extreme religious views and/or have been linked to violent extremism. Ms Terry regarded the risk of the defendant participating in extremist violent offending as linked to his vulnerability to being heavily influenced by his peers, including those with whom he associated as sharing a common terrorist ideology, an association which was forged, it would seem, from his time in custody and his previous links with organised criminal networks with a demonstrated ability to carry out planned acts of violence, including the use of weapons.
3. In seeking to assess potential risk scenarios regarding the defendant, Ms Terry observed: … His acceptance of instrumental violence as a means of interpersonal problem solving and personal gain in the past presents as an ongoing risk factor for him, in terms of increasing his propensity or capacity to inflict a high degree of violence on others, in addition to his capacity to acquire weapons, including guns. Should Mr Barez engage in acts of instrumental violence in the future, including within a religious context, it is likely to follow similar patterns to that noted previously within his history. Violence would likely be instrumental rather than reactive in nature, although may include impulsive acts of violence should the opportunity present itself. He would likely engage in offending within a group context, and this may include the use of weapons, and threatened or actual violence. It remains unlikely that he would engage in individual acts of extremist violence. It is recognised this could occur in the context of seeking approval, influence or praise from his peers or others he is seeking to impress. This therefore highlights the concern of Mr Barez's peer and religious influences.

Overall assessment

1. Ms Terry went on to provide a number of summary observations including, relevantly, the following: Mr Barez demonstrates a history of and current network of associates who are associated with or express views supportive of violent extremism, in addition to a network of criminal peers. His ongoing associations with these groups, particularly given his susceptibility to influence and related potential motivational indicators remain his most significant risk factors. … … … Mr Barez denies current extremist beliefs or intentions to engage in violence for religious causes, and there is limited verified collateral information suggesting he does hold such views, outside of his current associations. It is difficult to assess his current religious ideology without a detailed theological assessment from a qualified religious scholar. However it remains plausible, particularly given his current associates that he holds an ideology which is supportive [of] the use of violence within a religious context.
2. Ms Terry concluded by noting that: … Given his history of group based violent offending, history of allegiance to extremist organisations, history of naïve acceptance of extremist religious beliefs; and susceptibility to influence from current associations and limited insight into these potential vulnerabilities Mr Barez's risk of engaging in politically motivated violence, violent extremism or terrorist activity is in the Moderate risk range.
3. As noted above, on 11 September 2019, Ms Terry produced a supplementary risk assessment report which confirmed her assessment of the defendant as at moderate risk of engaging in politically motivated violence, violent extremism or terrorist activity. In particular, Ms Terry noted that: 1. the defendant continues to associate with individuals who hold extremist religious views or have been linked to violent extremism and presents with limited insight into the risks presented by those friendships; 2. his current associations increase his capacity in terms of organisational skills (that is, access to funding and sources of help); 3. there is some evidence of reduced empathy or intolerance to those outside his group; and 4. his extracurricular activities are noted by Dr Shanahan to have martial aspects to them, suggesting an affinity with historical Islamic practices related to the conduct of Jihad.
4. Ms Terry was of the ultimate opinion that should the defendant remain "on the current pathway without intervention, his trajectory would likely progress to a point which would significantly increase his risk of future extremist violence".

Defendant's criminal history - s 25(3)(j)

1. The defendant's criminal history dates from 2010, when he was charged as a juvenile with two counts of common assault. His criminal history also includes further common assault offences, assault occasioning bodily harm, affray and robbery in company. He has also been charged in respect of breaches of bail.

The index offences

1. The armed robberies occurred on 7 March 2011 and 19 May 2011, while the conspiracy charge related to activities engaged in between 10 and 13 March 2011.
2. In summary, at about 11:00pm on 7 March 2011, the defendant entered the Brewhouse Hotel in Blacktown with two other offenders. One of the offenders was armed with a pistol, another had a knife and the third had a shopping bag. It is not clear which of the three was the defendant. One of the offenders threatened an employee with a knife and obtained money from the front cash register while another offender pointed the pistol at a security guard and asked for directions to the safe. $30,000 was stolen from the safe, together with cash from the cash register.
3. At the time of this offence, the defendant was on conditional liberty; he was due to face the Children's Court for an offence of affray and an offence of assault occasioning actual bodily harm.

Offence 2 - 10 to 13 March 2011

1. Between 10 and 13 March 2011, the defendant conspired with four others to rob a hotel while armed with a dangerous weapon.
2. On 13 March 2011, intercepted phone calls revealed that the defendant was picked up in a BMW and heading towards the Prospect Hotel after his co-accused had purchased gardening gloves. They discussed the commission of a robbery. Police arrested one of the four conspirators in the driver's seat of the BMW, and two other conspirators after they attempted to escape. The defendant successfully evaded police.
3. A number of items ostensibly connected with the robbery were located in the bushland near where the defendant's co-accused were arrested. Most notably, the police found a black pistol with a silencer.

Offence 3 - 19 May 2011

1. At about 5:50pm on 19 May 2011, the defendant drove with another male to the Chambers Cellars in Winston Hills in a motor vehicle bearing stolen number plates. Both men were wearing balaclavas. The defendant carried a submachine gun which he pointed at staff in the shop, demanding that staff open the cash drawers which were then emptied into a backpack. The defendant asked the manager to take him to the safe, but it could not be accessed because of a time delay mechanism.
2. The submachine gun was later located by police at the house of the defendant's co-accused. It appeared to have been homemade and was capable of propelling projectiles in rapid succession.
3. The index offences, together with the defendant's criminal history generally, bear significantly upon the assessment of the risk of him committing a serious terrorism offence. In particular, they reveal: 1. a propensity to engage in group-based violent conduct; 2. a significant capacity for organised criminal offending; and 3. the ability to access firearms, including silenced weapons and a homemade sub-machine gun.

The views of the sentencing court - s 25(3)(k)

1. The defendant was sentenced for the index offences by English DCJ on 15 March 2013.
2. The defendant gave evidence on sentence. Her Honour described him as a "particularly unimpressive witness". In particular, her Honour expressed concerns in relation to contradictions in the material and evidence regarding his use of drugs; her Honour did not accept the defendant's evidence regarding his reported heroin habit.
3. Her Honour went on to observe: "I find that his inability to tell the truth does not bode well for his rehabilitation … he clearly has not learnt that it is essential to tell the truth, particularly when on oath, and of course he has done nothing by way of attending courses or counselling or undertaking employment whilst he has been in custody". Subsequently, her Honour noted: "His prospects for rehabilitation are impacted upon by his misconduct whilst he has been in custody and his inability to tell the truth".
4. Having made a series of further observations in that respect, her Honour noted: "He is certainly someone in need of a high level of intervention post release in any event to minimise his risk of re-offending". Her Honour later observed: If he does have a drug habit to the extent he says, he will of course need significant assistance once he is eventually released from custody. He will need considerable assistance to learn to avoid negative peers and he will need considerable assistance to learn right from wrong and how to tell the truth.
5. As to the nature of the offences, her Honour stated "there was a degree of criminal professionalism in the execution of these two robberies unlike the spontaneous type of robbery committed by other young persons when an opportunity presents itself".

Beliefs or commitments that support engaging or participating in terrorism activities - s 25(3)(l)

1. Dr Shanahan's report carries particular weight supporting a conclusion that the defendant continues to harbour a significant interest in literalist interpretations of Islam and the martial aspects of Islam:

• There is a clear connection between both archery and horse riding and hadith regarding jihad.
• Modern jihadist groups, including Al-Qaeda, have prominently featured horse riding as part of the jihadist narrative.
• The defendant's WhatsApp profile picture bears a quote from Ibn Taymiyyah who is "considered a core intellectual source for many hard-core, radical Salafist groups" and "has been quoted heavily in Islamic State's online magazine Dabiq", said to have influenced the thinking of leading jihadists such as Osama bin Laden.

1. The State submitted that the defendant's affiliation with fundamentalist belief structures is evidenced by the documented instances of support for violent extremist activities or behaviour in the past referred to in the Risk Assessment Reports. This is said to reflect his adherence to an extremist religious ideology and, in more recent times, his involvement with an apparent network of associates whose activities are suggestive of his continued adherence to, or an affinity with, historical Islamic practices related to jihad.

Risk Intervention Report - s 25(3)(d)

1. A Risk Intervention Report dated 21 August 2019 has been prepared on behalf of Corrective Services NSW.
2. As to the defendant's risk, the authors of that report observed: The majority of Mr Barez's offending has involved armed robbery and assault/aggression in company. The concerns regarding terrorism risk relate to Mr Barez's obtaining tattoos and making statements supporting extremist organisations. There is also information relating to his involvement in Sharia law practices when in custody and in the community. This coupled with the use of firearms and planning in relation to his index offences, indicates a potential for Mr Barez to commit a serious terrorism offence. Mr Barez's current associations with persons holding extremist views are concerning and he lacks insight into how such relationships increase his risk. Should Mr Barez be subject to an extended supervision order, he will be subject to intensive community supervision and strict monitoring of his activities and associations. The kinds of conditions considered necessary and appropriate to mitigate Mr Barez's risk of committing a serious terrorism offence are outlined in this report.
3. There is nothing in the Risk Intervention Report to suggest that it would not be practicable to manage the defendant in the community under an ESO.

Compliance with obligations and post-release conduct - ss 25(3)(h) and (i)

1. The defendant has some history of failing to comply with his parole obligations. Whilst on parole (which commenced on 16 November 2016), he has failed to report on a number of occasions and at other times has been late.
2. After his release from prison on parole, the defendant was charged with an offence of affray, contrary to s 93C(1) of the Crimes Act. The offence was alleged to have arisen as a result of the defendant's involvement at a fight at the Rouse Hill Town Centre food court on 20 January 2017. The defendant's involvement in the fight appears to have been fairly minimal; it was alleged that he threw one punch after it commenced and made some attempts to break the fight up. He was ultimately found not guilty following a hearing of that charge.
3. Parole was revoked on 23 March 2017, on account of the events of 20 January 2017, and an apparent breach of a condition not to associate with Mr Deen Zakarya in February 2017.
4. On 9 June 2017, approximately two weeks after the Local Court granted the defendant bail in relation to the affray offence, the revocation of his parole was rescinded.
5. On 11 April 2019, the defendant was charged with shoplifting after he allegedly took an item from a pharmacy.

Treatment or rehabilitation programs - s 25(3)(f)

1. The defendant has had little engagement with treatment programs, though this is attributable to his score on the LSI-R measure of general reoffending risk rather than any unwillingness to participate in such programs.

Other relevant matters - conduct in custody - s 25(m)

1. During his time in custody the defendant was charged with 23 different institutional breaches. Those breaches include the following: 1. seven assaults in April, July and September 2012; 2. two fights or other physical combat in June and July 2016; 3. five disobey directions; 4. three failures to comply with correctional centre routine; 5. four steal; 6. one tattoo; and 7. one unlawfully use phone or fax.
2. On four occasions the defendant was placed in segregation during his time in custody and received various warnings, including a warning for intimidation, and an Extreme Threat Inmate warning for being involved in a group assault with weapons in June 2016.

The ultimate assessment of risk

1. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328, at [29], the Court of Appeal referred to the test in s 20(d) of the THRO Act as prospective. The question is not whether the State has demonstrated that the defendant meets a certain description because of what has happened in the past; rather, it requires an inquiry be made of the inherently uncertain future as to whether something will occur. It also requires the Court to be satisfied to a "high degree of probability" of future events. As to that test the Court said at [29(3)]: 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".
2. The Court went on to observe that the prospective evaluation turns on the premise that the defendant is supervised under an ESO, thereby requiring a determination of the risk that the defendant will commit a serious terrorism offence which, in turn, requires an assessment of both the likelihood of the offence being committed, and the relative seriousness of the offending conduct.
3. Finally, the Court is to determine whether that risk is or is not "unacceptable". As the Court of Appeal observed at [29(5)]: 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%.
4. It is at the culmination of that exercise that the discretion under s 20 is engaged, as to which the Court observed at [29(6)]: 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.
5. In my view, the offences of greatest relevance to the risk posed by the defendant would appear to be: engaging in a terrorist act (s 101.1 of the Criminal Code); or doing acts in preparation for, or planning, a terrorist act (s 101.6). Additionally, the lengths the defendant has previously gone to demonstrate his support for Al-Qaeda, and the apparent currency of his continued allegiance to that terrorist group (through his association with named others) also raise the prospect that he might commit an offence relating to the membership of a terrorist organisation (s 102.3) or the provision of support to a terrorist organisation (s 102.7). These offences are serious terrorism offences for the purposes of the Act.
6. In assessing the unacceptability of the risk of such offences, I take into consideration not only the probability of such offences being committed but, equally as critically, the degree of harm likely to result as Rothman J said in State of NSW v Ceissman [2018] NSWSC 508: [26] … In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. [27] The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant.
7. In that respect, I also take into consideration the fact that the defendant has a history of engaging in highly organised violent offences involving the use of firearms, including a working submachine gun. Should the defendant's capacity and willingness to obtain and use such weapons, the commission of a terrorism offence, whether or not under the influence of adverse peer pressure from those with whom he is currently associated, would be productive of a grave risk of harm.
8. Having regard to the defendant's criminal history, together with Ms Terry's observations regarding the ways in which the risk of the defendant committing a serious terrorism offence might manifest, I am satisfied that, if the matters alleged in the material supporting the plaintiff's application are proved, an ESO would be justified and, accordingly, an ISO should be made. There are no discretionary considerations in the present case that would lead me to refrain from making that order.

The schedule of conditions

1. It was put on the defendant's behalf by Mr Johnson that the range and extent of conditions to which the defendant will be subject under the ISO, as sought by the plaintiff, do not fairly reflect the defendant's current circumstances. While it is acknowledged that his parole was briefly revoked in January 2017, the revocation was rescinded in June 2017 and thereafter he has been considered to be compliant and cooperative with his supervising officer to the extent that supervision was suspended for a period between June and November 2018 due to his assessed low risk of reoffending. Further, whilst the defendant accepts that the evidence establishes a clear nexus between his past offending and adverse peer associations, Mr Johnson emphasised, and fairly so, that the index offending was committed in 2011 when he was 18 and he has not reoffended since his release to parole in November 2016, other than a minor charge of larceny which attracted a fine.
2. Emphasis was also given to what was said to be the defendant's established work regime, reflecting his commitment to provide for his wife and infant daughter, with a second child expected in February 2020 and his commitment to amateur boxing with a training regime of five days a week.
3. Finally, it was put on his behalf that whilst he attends the Quakers Hill Mosque to practice his religion, he continues to deny holding any extremist views or adherence to Islamic State theology, and that is so despite being a co-worker with Mr EB on a casual basis at Zentrix Carpentry, as to which it is said that there is no evidence of any concerning conduct by either of them in association with each other or with Mr Wahabzadah, the proprietor of that business.
4. Although it was accepted for the purposes of the preliminary hearing that the defendant's association with these people might give rise to some risk of the kind against which the conditions are designed to protect, Mr Johnson submitted that the impact of some of the proposed conditions, in particular that the defendant would be prevented from associating, in any way, with the three named individuals, and prevented from attending the Bodypunch Boxing Gym at Lakemba under the direction of the Enforcement Officer (the position announced by senior counsel for the plaintiff as the intention in providing for condition 1(n) and (p)) has the potential to impact significantly on the defendant's financial circumstances and his well-being generally, including interrupting a progressively well-established pathway to rehabilitation, evidenced by his casual employment as a carpenter, his chosen sporting activities and his membership of a particular sporting community.
5. In substitution for a blanket prohibition on attending Bodypunch Boxing Gym, it was proposed that the defendant provide, as part of the weekly schedule of his movements, designated times when he intends to be at the gymnasium in training sessions and that his Enforcement Officer coordinate with the Enforcement Officer responsible for the supervision of Mr Elomar to ensure that both men are not in the gymnasium training at the same time. I can see some force in that proposal.
6. Mr Johnson also addressed the terms in which proposed conditions 6, 7(c), 10, 11, 20 and 28 are expressed. I propose to modify conditions 6, 7(c) and 17; the balance of conditions will be imposed in the form proposed by the plaintiff.
7. In doing so, I am conscious of the need to be satisfied of the appropriateness of the general discretionary conditions provided for in s 29(1) of the THRO Act and the conditions in s 29(1A) that must be imposed subject only to being satisfied that they need not be imposed at all or that they might be modified to ensure that they are the least intrusive conditions on the defendant's liberty, consistent with the assessment of the type and extent of risk to which the THRO Act is directed, a risk which I am satisfied, at this time, is established on the evidence for the purposes of the orders sought.
8. In that regard, I have been assisted by the detailed supplementary submissions prepared by the plaintiff in reply to Mr Johnson's written submissions furnished in advance of the hearing.

Orders

1. I make the following orders: 1. Pursuant to s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is subject to an interim supervision order for 28 days commencing on 18 November 2019. 2. Pursuant to s 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is to comply with the conditions in the Schedule attached to this judgment. 3. Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) I appoint one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations respectively of the defendant and to furnish initial reports to the Court on the result of those examinations. 4. The Court directs the defendant to attend those examinations.

---

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: 15 November 2019