State of New South Wales v Barez

EVIDENCE

1. The plaintiff relied on the following evidence in support of the application for final relief: 1. affidavit of Patrick Mullane dated 17 September 2019, together with exhibit PM-1 (the contents of which were marked exhibits A and B in the proceedings); 2. second affidavit of Patrick Mullane, dated 18 October 2019; 3. third affidavit of Patrick Mullane, dated 8 November 2019; 4. the RAR; 5. Supplementary Risk Assessment Report of Rachel Terry, dated 11 September 2019 ("the Supplementary RAR"); 6. a Risk Intervention Report, dated 21 August 2019 ("the RIR"); 7. affidavit of Rachel Terry, dated 17 October 2019; 8. report of Dr Rodger Shanahan, dated 8 September 2019 ("the First Shanahan Report"); 9. supplementary report of Dr Rodger Shanahan, dated 21 January 2019 ("Second Shanahan Report"); 10. affidavit of Senior Constable Ghouse Mohammad, dated 17 October 2019; 11. affidavit of Detective Sergeant Michael Van Eyk, dated 22 October 2019, together with exhibit MVE-1; 12. the Eagle Report; 13. the supplementary Eagle report, dated 6 February 2020; 14. the Dewson Report; 15. further affidavit of Patrick Mullane, dated 28 January 2020, together with exhibit PM-2; 16. further affidavit of Detective Sergeant Michael Van Eyk, dated 28 January 2020, together with exhibit MVE-2; and 17. the evidence of Leading Senior Constable Todd Kirk ("LSC Kirk").
2. The defendant relied upon the affidavits of: 1. Dr Clark Jones, dated 20 January 2020; and 2. his affidavit, dated 29 January 2020.
3. Dr Shanahan and LSC Kirk were required for cross-examination, as was the defendant.

THE STATUTORY REGIME

1. The primary object of the THRO Act is to "provide for the extended supervision and continuing detention of certain defendants posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community" (s 3 of the THRO Act).
2. In making a determination, the Court is required to consider the matters set out in s 25(3) of the THRO Act. It is necessary to have regard to the preconditions for the making of any such order under s 20 of the THRO Act.

Statutory Preconditions (s 20(a)-(c))

1. There was no contest that the statutory preconditions to the making of an ESO are set out in s 20(a)-(c) of the THRO Act. By those preconditions, the plaintiff is required to satisfy the Court of the following: 1. That the defendant is an "eligible offender" (the preamble to s 20). 2. That the defendant is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed) while serving a sentence of imprisonment for a NSW indictable offence (s 20(a)). 3. That the ESO application is made in accordance with Pt 2 of the THRO Act (s 20(b)). Those requirements are set out in ss 23 and 24 of the THRO Act. 4. Pursuant to s 20(c) of the THRO Act, that the defendant is: 1. a convicted NSW terrorist offender; 2. a convicted NSW underlying terrorism offender; or 3. a convicted NSW terrorism activity offender.
2. The Court must also be 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 under an extended supervision order (s 20(d) of the THRO Act).

The defendant is an eligible offender (s 20 of the THRO Act)

1. Section 7 of the THRO Act defines an eligible offender as one who is: 1. 18 years of age or older, and 2. serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence.
2. A "NSW indictable offence" is defined in s 4(1) of the THRO Act to be an offence against the law of the State for which proceedings may be taken on indictment.
3. The defendant is an eligible offender as: 1. he is over 18 years of age; and 2. he was subject to an ISO at the time of the making of the orders, having served a sentence for an offence (being robbery armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act) against a law of the State of NSW that may be dealt with on indictment.
4. At the time the summons brought by the plaintiff was filed, the defendant was serving a sentence for the offence of robbery while armed with a dangerous weapon. As mentioned, his sentence for that offence expired on 18 November 2019. Thus, the defendant was in custody or detention for the purposes of s 20(a) of the THRO Act.

Application in accordance with Pt 2 of the THRO Act (s 20(b))

1. The procedural requirements in Pt 2 of the THRO Act were met: 1. the application has been made in respect of an eligible offender who is in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence (s 23(1)(a) of the THRO Act); 2. the defendant was in the last twelve months of his current custody or supervision, namely the ISO that expired on 18 February 2020 (s 23(2) of the THRO Act); and 3. the application was supported by documentation addressing the matters referred to in s 23(3) of the THRO Act, including the RAR and the supplementary RAR.

A Convicted NSW Terrorism Activity Offender (s 20(c) of the THRO Act)

1. Section 20(c) of the THRO Act provides as follows: 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: … (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, …
2. The defendant is a "convicted NSW terrorism activity offender" as that term is defined in s 10 (see s 20(c)(iii) of the THRO Act).
3. Section 10(1) of the THRO Act is in the following terms: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: (a) the offender has at any time been subject to a control order, (b) the offender has at any time been a member of a terrorist organisation, (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.
4. The defendant was serving a sentence of imprisonment for a NSW indictable offence. The remaining question, is whether the defendant falls within the provisions of s 10(1)(c)(i) or (ii) of the THRO Act. Section 10(1A) provides: 10 Convicted NSW terrorism activity offender … (1A) Without limiting subsection (1)(c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology that supports terrorist acts or violent extremism; (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.
5. By s 4 of the THRO Act, the term "terrorist act", as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code Act 1995 (Cth). There, the term is defined as follows (see s 100.1): "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.
6. The subsections (2) and (3) referred to in the above definition read as follows: (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
7. In R v Lodhi [2006] NSWSC 584, Whealy J (at [75]) observed that the definition of "terrorist act" in the Criminal Code "postulates an action or threat of action of the widest possible kind".
8. The term "violent extremism" is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines "extremism" as "[t]he holding of extreme political or religious views; fanaticism". Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views. In my view, that the inclusion of the term "violent extremism" was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, an act not directed at coercing the government or intimidating a section of the public.
9. In my view, the requirements of s 10(1)(c) of the THRO Act are satisfied in this case, in either or both, of two ways: 1. the defendant has made statements or carried out activity advocating support for terrorist act/s or violent extremism; and/or 2. he has or had a personal or business affiliation with persons advocating support for terrorist act/s or violent extremism.
10. These will be considered in turn.

Advocating support for any terrorist act or violent extremism (s 10(1)(c)(i) of the THRO Act)

1. The definition of "advocating support" in s 10(1A) set out above makes clear that the term is intended to capture a broad range of conduct.
2. In February 2014, while he was in custody, the defendant had the letters "AL QAEDA" tattooed in black ink along the length of his left arm. At the time the tattoo was discovered, only the letters "ALQ" had been fully inked. Sometime between February 2014 and 30 April 2014, while still in custody, the defendant had the remaining letters filled in. Subsequent to the commencement of these proceedings, the defendant obtained a further tattoo that sought to cover the "AL QAEDA" tattoo.
3. Pursuant to cl 4 of the Criminal Code (Terrorist Organisation - Al-Qa'ida) Regulations 2019 (Cth), al-Qa'ida is a proscribed terrorist organisation. The involvement of al-Qa'ida in terrorist activities, including the September 11 attacks and the Bali bombings, is well known.
4. I accept the submissions by the plaintiff that the al-Qa'ida tattoo is a clear expression of support for that organisation and, substantially, the terrorist acts and violent extremism it has engaged in over a lengthy period.
5. Consistent with this, the defendant acknowledged in an interview with Ms Terry, conducted for the purposes of producing the RAR, that he had supported al-Qa'ida for a period of approximately two years, stating that he "didn't know any better". The defendant made similar concessions to Dr Eagle and Ms Dewson.
6. At about 9.00pm on 30 January 2017, the defendant was travelling as a passenger in a vehicle being driven by Mr Deen Zakarya when the vehicle was stopped by two police officers, one of whom was LSC Kirk.
7. The vehicle was stopped for a random breath test and because of an issue regarding the absence of P plates, a subsequent search of the car was conducted.
8. During the course of the traffic stop, Mr Zakarya became very aggressive. In contrast, the defendant tried to calm the situation and LSC Kirk confirmed under cross examination that the defendant behaved like "a gentleman".
9. LSC Kirk gave evidence that he had a conversation with the defendant about the tattoo on his arm, asking "what's with the tattoo?" He stated that the defendant said words to the effect of "it's what I believe, everyone has a religion".
10. Subsequently, LSC Kirk reported this conversation to Detective Trovato, who recorded it in an Intelligence Report Summary in the following terms: While speaking to BAREZ, police enquired about the Al-Qa'ida tattoo" on his left arm. BAREZ responded "Its [sic] what I believe.
11. The precise date on which LSC Kirk spoke to Detective Trovato is unclear, but LSC Kirk gave evidence that the conversation took place a day or so after the traffic stop and the document itself appears to have been prepared by Detective Trovato at some stage prior to 8 February 2017.
12. LSC Kirk also prepared a COPS Event report regarding the traffic stop. That did not make mention of the exchange regarding the tattoo. I accept LSC Kirk's explanation that it was not his normal procedure to record in COPS changes in physical appearance unless the entry related to a charge being laid. I also accept that it is understandable that he concentrated on the behaviour of Mr Zakarya.
13. LSC Kirk was cross-examined on his account of the conversation with the defendant. The defendant gave evidence denying anything said to LSC Kirk regarding his tattoo. He was also cross-examined on this topic. Having carefully observed the evidence of LSC Kirk and the defendant, I prefer LSC Kirk's evidence and, in particular, his account of the conversation with the defendant about the traffic stop for the following reasons: 1. I accept the submission for the defendant that LSC Kirk was an overall impressive witness, and readily made concessions about his memory, while consistent that he had a clear recollection of the tattoo conversation with the defendant. He was forthcoming in his observation that the defendant behaved in a respectful manner during the traffic stop. I do not consider the timing of the provision of the statement by LSC Kirk, about two years after the incident, diminishes that conclusion. Nor do I consider the "commotion", which was occurring in the car at the time of the traffic stop, caused by Mr Zakarya, could be said to have adversely affected LSC Kirk's clear memory of the words spoken by the defendant who was, in fact, calm. I do not consider LSC Kirk misheard that statement made by the defendant (a conclusion not further diminished in these proceedings by a failure by the plaintiff to call Mr Zakarya and the other officer attending the scene. 2. The intelligence report prepared by Detective Trovato predated these proceedings by almost three years. It is evidence of an account given by LSC Kirk, which was contemporaneous to that event, and is in conflict with the defendant's denial of such a conversation. 3. I do not consider the fact that the intelligence report records only the words "It's what I believe", without reference to the words "we all have a religion", warrants a conclusion that the words were not spoken, as LSC Kirk was clear in his evidence as to what he informed Detective Trovato. In any event, the core part of the statement, for intelligence purposes, was that part suggesting that the defendant believed in al-Qa'ida, which stands in contrast to the defendant's complete denial. 4. The denial by the defendant must be seen in the context of his previous admitted perjury when he believed that lying to a court would assist him. Further, I found his denial unconvincing (I note that the fact that al-Qa'ida is not a religion, as such, may cause some doubt about those words being spoken by the defendant but he denied all words spoken. Further, the words may have been uttered in the belief that the person hearing them was ignorant of the distinction as a means of explaining or boasting about the significance of the tattoo). 5. The defendant had acknowledged that for a period of approximately two years he supported al-Qa'ida (see the RAR at para 81, the Dewson Report at para 31 and the Eagle Report at para 66). The plaintiff submitted that, even if the defendant's denial of continued support for al-Qa'ida is accepted (as to which, see further below), his previous support for the organisation extended for a period of at least three years, which coincided with the incident in question. 6. The fact that LSC Kirk had worn a patch that others would not, and previously imposed onerous bail conditions on the defendant in 2019, does not provide a sound basis, in my view, on which to conclude that he was somehow motivated to fabricate his conversation with the defendant some three years ago. In fact, my impression was that he gave his evidence in an honest and measured way.
14. The defendant did not deny the provisions of s 10(1)(a) of the THRO Act were met by the affixing of the tattoo in 2014, whilst the defendant was in a prison environment, but contented any support for al-Qa'ida was purely notional.
15. The tattoo, together with the defendant's concessions in interviews with Ms Terry, Dr Eagle and Ms Dewson (to which I will further return) and to the statement by the defendant to LSC Kirk in the traffic stop on 30 January 2017, in my view, satisfies the requirements of s 10(1)(c)(i) of the THRO Act.
16. For completeness, I note that this conclusion is reinforced by the terms of s 10(1A)(a)(ii), by displaying the tattoo, the defendant is "using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism".

Associations - s 10(1)(c)(ii) of the THRO Act

1. Whilst not strictly needing to reach a conclusion, in this respect, I will deal with the satisfaction of this provision because of its connection with later argument.
2. The defendant conceded that he had associated with persons who have advocated or extended support to "relevant groups". However, it was submitted that the criterion was easily met as the defendant need not even know of the associate's act of support to satisfy the provision.
3. It may also be noted at this junction, the defendant submitted that, other than two of the defendant's associations, none have their own ESO made against them and that the associations were not, thereby, a risk factor.
4. In any view, the defendant is a convicted NSW terrorism activity offender by virtue of his associations with persons who have advocated support for violent extremism and/or terrorist acts.
5. The THRO Act further defines the term "association" in s 10(1A)(b), which provides: (1A) Without limiting subsection (1)(c): (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.
6. Prior to the insertion of s 10(1A)(b) of the THRO Act, N Adams J in State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 noted that the phrase "associated or otherwise affiliated with" is intended to capture a wide range of relationships (at [30]): [30] As for s 10(1)(c)(ii) of the THRO Act, a defendant will also fall within the terms of s 10(1)(c) if he or she is "associated or otherwise affiliated with" other persons or with organisations advocating support for engaging in any terrorist acts … It was submitted by the State that the phrase "associated or otherwise affiliated with" captures a variety of relationships. I accept that such a construction would be consistent with the broad protective purpose of the legislation.
7. I will turn then to the respective associations for the purposes of this provision, although the associations are relevant to the later discussions as to whether the plaintiff has demonstrated that the provisions of s 20(1)(d) have been satisfied.

AB

1. On 2 August 2019, police stopped a vehicle in Parramatta in relation to a traffic infringement. The defendant was driving the car. AB was in the passenger seat.
2. Inquiries by the Australian Federal Police also confirmed an association between AB and the defendant; as at 19 July 2019, the two were working together at Zentrix Carpentry.
3. On 6 October 2017, AB pleaded guilty to an offence of give/receive services to promote a s 119.1 offence (namely, the offence by Mr Elmir of entering Syria with the intention of engaging in a hostile activity), contrary to s 119.4(5) of the Criminal Code.
4. AB is a person who "is or was advocating support for any terrorist act or violent extremism"; he has been convicted of intentionally performing services to assist Mr Amin Elmir to enter Syria with the intent to engage in hostile activities aimed at, inter alia, overthrowing the Syrian government.
5. The defendant's association with AB satisfies the requirements of s 10(1)(c)(ii) of the THRO Act.

Ahmed Elomar

1. Counsel for the defendant submitted that his uncontested evidence was that he had never associated with Mr Elomar, except for his meeting at the Body Punch boxing gym in Lakemba and a WhatsApp message pertaining to a horse riding/breaking business. He also accepted that he had met Mr Elomar whilst in custody.
2. On 4 July 2019, police executed a search warrant at the residential address of Mr Elomar. In executing that search warrant, police conducted a Cellebrite examination of Mr Elomar's mother's phone. This examination revealed that Mr Elomar had been using his mother's phone to communicate with a number of persons, one of whom was the defendant.
3. Mr Elomar was the subject of an ESO under the THRO Act and was subject to supervision by the NSW Police Force's High Risk Terrorist Offender Unit.
4. The communications between the defendant and Mr Elomar included discussions of the possibility of the two men going for a horse ride together. Mr Elomar sent the defendant an image of the branding for Mr Elomar's horse stud, which, according to Dr Shanahan, bears a resemblance to the Islamic State flag. The horse stud emblem also bears the word "Baqiyah", which is used in the Islamic State motto: "Baqiyah wa tatamaddad" (remaining and expanding).
5. Among other things, the defendant sent Mr Elomar a video of himself riding a horse and another video of himself using a traditional bow and arrow. Both Mr Elomar and the defendant attended the Body Punch boxing gym in Lakemba.
6. The communications between the defendant and Mr Elomar constitute an association between the two for the purposes of s 10(1)(c)(ii) of the THRO Act.

Muhhamed Umar Wahabzadah

1. I will return to the defendant's association, in this respect, in reviewing mandatory considerations under s 25(3) of the THRO Act.

Summary of the Defendant's Evidence

1. Putting aside the defendant's evidence in relation to words spoken to LSC Kirk at the road stop, dealt with earlier in this judgment, in summary, the defendant gave the following evidence (by affidavit and oral evidence).

Religious beliefs

1. The defendant gave evidence that he was brought up as a practicing Muslim and has continued this practice into adulthood.
2. Upon his release from custody, the defendant attended Quakers Jill mosque each Friday. The defendant conceded to being a Salafist. He acknowledged that the Salafist ideology formed the foundation for groups such as ISIS and al-Qa'ida. However, the defendant denied that he had ever been a supporter of ISIS.
3. As to his religious practice and interest in archery and horse riding, the defendant's evidence was as follows: Archery is an art to me and horses are the most intriguing and beautiful animals which brought me closer to appreciating animals. These things are sunnah the same way growing a beard is sunah. These sports do not bring about terrorist related ideas …

Criminal Record

1. The defendant conceded that he made a lot of poor decisions while he was in custody; decisions that he would not make as a grown man and father.
2. Further, the defendant stated that the criminal offences that he committed and religious beliefs that he held were in the past.

Tattoo

1. Whilst the defendant was in custody at Wellington Correctional Centre, he got the word "AL QAEDA" tattooed on his arm.
2. As to his reason for getting the word "AL QAEDA" on his arm, the defendant stated as follows: …I didn't really care what I wanted to get on my arm, I just wanted to get something going down my arm like a sleeve… we were talking about it and everyone was sort of constantly talking about it and then I thought that would be a good idea to get that on my arm.
3. As to his tattoo of the name "Hassan Kalache", the defendant gave evidence that it was the name of his cell mate while he was incarcerated at Wellington Correctional Centre. The defendant conceded that he was friends with Mr Kalache, knew that he was a convicted murderer and was aware that Mr Kalache had a tattoo on his back with the name "Osama bin Laden". However, the defendant went on to say that he wouldn't describe Mr Kalache as a supporter of Osama bin Laden.
4. The defendant gave evidence that he "grew out of that state of mind after a year or two of getting the tattoo". The defendant went on to describe the tattoo as "one of the most foolish and regretful decisions I have ever made in my entire life".

Knowledge of al-Qa'ida

1. The defendant acknowledged that, while he was in custody, he was under the impression that al-Qa'ida was a religious group that sought to help the oppressed. The defendant gave evidence that he "had a false picture of them in my head of what they stood for".
2. Further, the defendant stated that, while in custody, he took part in conversations with other inmates, in which he was told that al-Qa'ida were defending innocent individuals against oppression and invasion.
3. The defendant gave evidence that at the time he was incarcerated and had "Al Qaeda" tattooed on his arm, he did not know that the group was responsible for the murder of three and a half thousand people in New York City in 2001 or the Bali bombings. Further, the defendant denied any knowledge of the group called Jamia Islamia.
4. The defendant gave evidence that in his last year of custody his religious beliefs began to change. The defendant stated that lawyers and other Muslim individuals, including his family, started to educate him about the Prophet Muhammad and versus of the Quran. This led the defendant to further educate himself about the Islamic religion.
5. The defendant gave evidence that he did not support terrorism, and that following his release from custody, he was no longer "influenced by extremism or extremists".

Criminal associations

1. The defendant was examined on the nature of his relationships with several individuals named in the plaintiff's evidence as associates. It is clear from his evidence that he was, in my view, attempting to limit the extent of his association.
2. The defendant gave evidence that following his release from gaol, he worked as a carpenter with AB, once a week, for approximately nine months. The defendant gave evidence that he had knowledge of AB's conviction but had never had a conversation with AB that pertained to terrorism or extremist views.
3. With respect to Mr Elomar, the defendant gave evidence that he was in custody at the same time as Mr Elomar and that they would speak from time to time. Further, the defendant contended that he had a conversation with Mr Elomar inside a boxing gym in Lakemba, in which they spoke about family, marriage and horses. When questioned about other forms of communication with Mr Elomar, the defendant stated that he had a telephone conversation with Mr Elomar and that Mr Elomar had sent the defendant photos of his horses and his business logo.
4. The defendant described Mr Ishmail Hicham and Mr Bilal Elzamtur as friends that he met while he was incarcerated.
5. The defendant stated that his last interaction with Mr Tekirdag, whom the defendant stated he did not have a close relationship with, was a week following the issue of his ISO.
6. With respect to Mr Zakarya, the defendant submitted that he had known Mr Zakarya as a child and had trained at the same gym as him.
7. When asked about his relationship with Messrs Nayef Salameh, Mahmoud Sumrein, Omar Ammouche or Peter Vai, the defendant gave evidence that he did not have a close relationship with them.

Change in circumstances

1. Upon his release from custody on 18 November 2018, the defendant moved into his parents' house, commenced full time work with his father in the family business and within four weeks of his release, married his wife.
2. The defendant gave evidence that since his release into the community, he had been focused is on his career, family and religion.
3. However, the defendant gave evidence that he had experienced difficulty in managing work and maintaining his lifestyle because of the requirement that he schedule his movements a week in advance. The defendant gave evidence that this requirement was too onerous and restricted his ability to maintain his employment as a carpenter and manager of his family business. Further, the defendant gave evidence that his wife is spontaneous and loves to go to the zoo, beaches, to visit family or out to dinner and the defendant cannot go with her because of the conditions imposed.
4. The defendant stated that his father hopes for him to take over the family rug business. In doing so, the defendant has expressed a desire to travel to the Middle East to meet the suppliers.
5. Having summarised the defendant's evidence, it will be clear from earlier aspects of this judgment, and what follows, that I have not found the defendant's evidence credible in certain respects. Further, I do not consider him to have been entirely candid, particularly as to his associations and beliefs.

Unacceptable Risk of Committing a Serious Terrorism Offence (s 20(d))

1. The Court is only able to make an ESO if 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 under the order (s 20(d) of the THRO Act).
2. The Court is not required to determine that the risk of committing a serious terrorism offence is "more likely than not" (s 21 THRO Act).
3. The elements of s 20(d) of the THRO Act were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328. There, the Court summarised the key aspects of the provision as follows (at [29]): (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 defendant 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 defendant 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 defendant 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 defendant were kept under supervision, that might ground an exercise of discretion to decline to make an order.
4. The test in subparagraph (d) is whether the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
5. "Serious terrorism offences" are defined to be offences against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s 4(1)). Those offences include: 1. engaging in a terrorist act (s 101.1); 2. doing acts in preparation for, or planning, a terrorist act (s 101.6); 3. membership of a terrorist organisation (s 102.3); 4. recruiting for a terrorist organisation (s 102.4); 5. getting funds to, from or for a terrorist organisation (s 102.6); and 6. providing support to a terrorist organisation (s 102.7). These offences cover a very broad range of conduct and do not, for example, require the commission of an act of violence.
6. The questions raised by s 20(d) may be assisted by reference to some of the mandatory considerations for the making of an ESO set out in s 25(3) of the Criminal Code (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [42] (per Harrison J), referring with approval to Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [22]; State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [59].
7. There were significant aspects of the plaintiff's submission summarising features of the material with respect to these considerations, which were uncontroversial and the evidence uncontested (so far as the summary concerned). They have, thus far, significantly informed the discussion of the mandatory factors which follow.

Reports of Dr Eagle

1. As part of the assessment process, Dr Eagle conducted an interview with the defendant over a period of approximately 130 minutes on 13 December 2019.
2. The defendant was logical, coherent and engaged cooperatively with the assessment process. Dr Eagle concluded that the defendant did not display signs of a major mental illness and his capacity to regulate his emotional responses and control his behaviour appears to have improved over the last few years.

Religious ideology and beliefs

1. The defendant acknowledged to Dr Eagle that he had become more committed to his faith since he left custody. Dr Eagle observed: He said he now prayed regularly, fasted, read the Qur'an, and tried to follow the ways of the Prophet. His said his wife was "covered," and he preferred that. He said he stayed away from alcohol and drugs and did not engage in adultery. He said that he became more committed to his religion when he had about 18 months to go in custody. He said it was because he "wasn't pleased with myself." He said he then met his "missus." He said she was a "good girl." He said she had never had a boyfriend and had been introduced to me by his cousin.
2. Dr Eagle asked the defendant about the al-Qa'ida tattoo in interview. He is said to have stated: I knew what Al Qaeda was. What I knew about them I liked. I had very little knowledge or understanding about religion or politics. It wasn't to consciously support anything. If I was strictly religious, I wouldn't have got a tattoo.
3. Dr Eagle observed that the defendant "said that the nature of al Qa'ida had been portrayed to him in a very one-sided way. He said he found out, for instance, that they were "killing people senselessly." He said initially he thought they were defending innocent people. He said when he realised that they were placing "suicide bombs in market places" he no longer supported the organisation.
4. Dr Eagle noted that the defendant had the original al-Qa'ida tattoo covered by a second tattoo. The timing of the second tattoo was not explored with him.
5. As concerned the robbery offences that comprised the index offence, the defendant informed Dr Eagle that he was "doing it for the excitement".
6. In addition to his history of violent offending involving firearms, the defendant had a history of carrying a pocket knife at times as a weapon. The defendant had "displayed antisocial traits such as the failure to conform to social norms with respect to lawful behaviours; deceitfulness; aggressiveness; and a reckless disregard for the safety of others". However, Dr Eagle noted that the defendant did not clearly satisfy the criteria for an antisocial personality disorder.

Risk Assessment - Dr Eagle

1. Dr Eagle adopted a structured professional judgment approach to the assessment of the risk presented by the defendant, employing the Violent Extremism Risk Assessment - Version 2 revised ("VERA-2R") structured professional judgment tool to assist with her assessment.
2. Dr Eagle discussed the limitations in the process of risk assessment and the use of a structured professional judgment approach as follows: 137. There are inherent limitations in any process of risk assessment (even in established areas of violent and sexual offending), although the best evidence supports a structured professional judgment approach. Risk assessment has been regarded as most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending). 138. Risk assessment in the area of violent extremism has been described as particularly challenging given the variable nature of terrorism, the low base rate and the dearth of reliable evidence regarding risk factors. Actuarial tools in this area are regarded as unlikely to be effective. Existing instruments for the assessment of violence are not considered to be of assistance because of the different characteristics that have been found to be associated with terrorists and violent extremists. A further significant limitation is that the factors associated with violent extremism can differ substantially in different jurisdictions. In addition, risk factors for lone-actor terrorism can differ significantly from the risk factors for group-based terrorism. Approaches that process information in a structured way are likely to be of value if used to inform formulation and risk management. 139. As a result of increasing research in the area, there has been the emergence of potential structured professional judgment risk assessment tools such as the TRAP 18 (Terrorist Radicalisation Assessment Protocol) and the VERA 2R (Violent Extremism Risk Assessment - Version 2 revised). At this stage given the lack of available research, these tools are regarded more as an assessment protocol or investigate template. They are not actuarial tools and do not provide reliable information regarding risk categorisation. They identify risk factors that have been associated with terrorist events and violent extremism based on the available evidence.
3. Dr Eagle examined, in that context, risk indicators across four main categories.

Beliefs, attitude and ideology

1. First, Dr Eagle noted that, whilst the defendant currently denied commitment to a belief system or ideology that justified the use of violence, he had "acknowledged previously supporting al-Qa'ida and believing that the acts of al-Qa'ida were justified but stated this was in response to the influence of peers in the correctional environment and a misunderstanding of the organisations actions, particularly in relation to those he considered innocent people such as women and children".
2. As to the defendant's assertions that his beliefs have shifted, Dr Eagle observed the following: … Collateral information has indicated that following incarceration Mr Barez has continued to associate with those considered to be either supportive of violent extremism or suspected of being involved in violent extremism. Most recently in June 2019, Mr Barez was found to be in contact with Mr Elomar, a person considered to be a supporter of violent extremism. Mr Barez maintained this communication was initiated by Mr Elomar through his boxing gym and that their communication was solely in relation to his interest in horses and archery. Expert witness, Dr Shanahan, considered various communications, images and documents including his interest in archery and horse riding; his communication with Mr Elomar and his tattoo. He concluded that it was "reasonable to believe that Mr Barez publicly supports extremist views of Islam and has an affinity with terrorist ideologies." Mr Barez' capacity for honesty has previously been questioned including by Judge English in the context of his sentencing proceedings for the Index Offences. Mr Barez' account must be considered in light of this previous behaviour and a realistic motivation in this context to present himself in a particular light in order to avoid an ESO. Mr Barez has previously demonstrated a commitment to a terrorism organisation, al Qa'ida. On his own account, he justified his support for the organisation on the basis of a belief that it was responsible for attacking personnel on army barracks on the basis that these persons were harming "innocents." Given all of the available information, it could reasonably be concluded that Mr Barez may remain committed to an ideology that justifies the use of violence to achieve ideological goals. Mr Barez' [sic] account must be considered in light of this previous behaviour and a realistic motivation in this context to present himself in a particular light in order to avoid an ESO. Mr Barez has previously demonstrated a commitment to a terrorism organisation, al Qa'ida. On his own account, he justified his support for the organisation on the basis of a belief that it was responsible for attacking personnel on army barracks on the basis that these persons were harming "innocents." Given all of the available information, it could reasonably be concluded that Mr Barez may remain committed to an ideology that justifies the use of violence to achieve ideological goals.

Social context and intention

1. Secondly, as concerned the defendant's social context and intentions, Dr Eagle noted the defendant's interest in archery and horse riding, as well as his contact with Mr Ahmed Elomar. She then observed: The information available may suggest that Mr Barez is using or accessing violent extremist materials through third parties (such as Mr Elomar) via social media or otherwise. However, it is difficult to interpret Mr Barez' motivations on the available information.
2. Aside from the defendant's comment regarding his desire to shoot down a plane with an RPG, there is no other information to suggest he has or had a specific target for a potential terrorist attack in mind.
3. Dr Eagle then noted that the defendant's personal contact with persons supporting violent extremism was concerning: The information suggested that Mr Barez has had recent personal contact (2019) with persons known or believed to support violent extremism such as Mr Elomar, Mr Wahabzadah and AB. He also has a history of associating with inmates suspected of supporting violent extremism in custody and has received a visit from persons' associated with violent extremism. Mr Barez' continued association with persons known or believed to support violent extremism, particularly in the context of his vulnerability to peer influence, could be considered a significant risk indicator.
4. In a similar vein, Dr Eagle observed under the heading "Susceptibility to influence, control and indoctrination" that the defendant "has demonstrated a consistent susceptibility to peer influence and indoctrination". While his wife and child may mitigate his susceptibility to influence, this mitigation has yet to be observed, and Dr Eagle considered that his "susceptibility to influence, control or indoctrination could be considered a significant ongoing risk factor".

History, action and capacity

1. Regarding this category of risk factors, Dr Eagle observed that the defendant's family have led a prosocial lifestyle. He did not appear to have received any specific paramilitary style training, though his association with persons with extremist beliefs "may suggest that he has received some informal training in extremist ideology in correctional settings".
2. Dr Eagle noted that the defendant had "shown the capacity to plan and engage in relatively organised criminal activities". Additionally, while it was not clear whether he had access to significant funding or assistance, "his ongoing contact with potential violent extremists is of concern in this regard".

Commitment and motivation

1. The defendant reported a commitment to his religious beliefs. Dr Eagle observed that his actions generally could be perceived as, at least partially, motivated by religious obligation. Dr Eagle, however, perceived his strongest motivation to be a "sense of brotherhood and group belonging". She noted that he "has shown a consistent affinity to establishing strong peer groups and has been influenced by those groups, both in custody and in the community".

Protective factors

1. Dr Eagle reported that the defendant asserted that he no longer supported al-Qa'ida or violent extremism and said that his family had become his priority. Dr Eagle then stated: This may reflect a reinterpretation of his ideological beliefs, although due to his ongoing contact with violent extremists, his history of deceitfulness in a legal context and is susceptibility to indoctrination, it is difficult to accept with confidence that he has committed to a significant change or reinterpretation of his values and rigid ideology.

Summary of Dr Eagle's Risk Formulation

1. In summary, Dr Eagle observed that the defendant's risk indicators: ... primarily involve his continued association with known violent extremists and susceptibility to influence. His previously declared support for a known terrorist organisation, al Qa'ida, reported to be in response to the influence of others, and his ongoing contact with those associated with violent extremist beliefs would suggest that he may continue to support violent extremism either directly or indirectly.
2. In Dr Eagle's view, continued contact with violent extremists constituted the "most likely scenario of increased risk" as it would leave the defendant "susceptible to ongoing indoctrination and influence and may either directly or indirectly support or propagate the extremist ideology and potentially recruit others to the ideology".
3. Dr Eagle also considered the defendant's established capacity for instrumental violence to be of significant relevance to the risk he presented. She noted: "He has an established capacity for violent behaviours that could cause potentially lethal harm if undertaken in the name of an extreme ideology".
4. Dr Eagle provided the following summary of her assessment of the defendant's risk of committing an act of violent extremism: On the basis of the available material, Mr Barez displayed a number of risk indicators that have been associated with acts of violent extremism. The most significant risk indicators are his ongoing potential commitment to an ideology that justifies violence; his persistent contact with persons identified as supporting violent extremism; his susceptibility to influence, control and indoctrination; his violent criminal history; and the potential ongoing motivation of camaraderie or group belonging. Notably, Mr Barez has described a reinterpretation of his ideological beliefs and denies ongoing support for terrorist organisations such as al Qa'ida. However, his history of dishonesty and inconsistencies in providing information, particularly in the legal context, makes his account less reliable. Nonetheless, he appears to have avoided violent reoffending since his release and developed a stable relationship with his wife. He also has a supportive prosocial family and has consistently worked towards a career goal as a carpenter. Overall, I am of the view that Mr Barez risk of engaging in an act of violent extremism is primarily associated with his ongoing association with violent extremists and his susceptibility to influence and indoctrination. On that basis, in the context of his continued association with potential violent extremists, I am of the view that Mr Barez risk of engaging in an act of violent extremism is significantly elevated, if supervision were removed.
5. As earlier mentioned, questions were raised with Dr Eagle regarding this opinion, the answer to which formed the basis for the supplementary Eagle report. Those questions, and answers appear below: 5.2.1 [I] have been asked "what is being referred to as "his ongoing potential commitment to an ideol­ogy that justifies violence" and how is "potential factored into the assessment if it is unknown? I have used the word "potential' to reflect uncertainty regarding whether or not Mr Barez re­mains committed to an ideology that justifies violence. I have discussed the information pro­vided that might suggest he remains committed to an ideology that justifies violence in para­graph 143.1 of my report dated 14 January 2020.1 have also had regard to Mr Barez' state­ments that he does not support an ideology that justifies violence. Ultimately this is a question of fact that I cannot resolve. Structured professional judgment templates, such as the VERA 2R, anticipate uncertainty of this nature and encourage transparency regarding the presence or absence of risk indicators including the certainty (or lack of) with which an assessor con­siders a risk indicator to be present. In this case, potential was factored into the assessment by acknowledging that Mr Barez may in fact have reformulated his views regarding al Qa'ida and may not be committed to an ide­ology that justifies violence. If it were clear that Mr Barez remained committed to an ideology that justified violence, his risk of engaging in an act of violent extremism would be more ele­vated, particularly in the context of his other risk indicators including, for instance, his persis­tent contact with persons identified as supporting violent extremism. 5.3 Has been factored into the assessment/view in a positive way and, if so, to what extent? If she assumed that ES had now genuinely eschewed ideology that justifies violence/violent extrem­ism - that is accept that the contended for change was genuine, what would the assessed risk level be?" The uncertainty regarding Mr Barez' ongoing commitment to an ideology that justifies violence (as indicated by the "potentiar commitment to an ideology that justifies violence) has, to some extent, been factored into the assessment in a positive or protective way. It appears relatively evident that Mr Barez has previously expressed support for an ideology that justifies violence, as suggested by obtaining a tattoo of the terrorist organisation al Qa'ida. The issue, from my perspective, is whether he has genuinely reinterpreted his ideological beliefs. His attempts to remove the tattoo and his expressed rejection of the organisation appear to be behaviours consistent with his stated rejection of al Qa'ida and/or an ideology that justifies violence and are, in themselves, positive indicators. On the other hand, he has engaged in some behav­iours, discussed in paragraph 143.1, that may indicate ongoing commitment to an ideology that justifies violence in addition to having a background of reported dishonesty in the legal context (suggesting his self reported rejection of an violent extremist ideology is less reliable). As indicated above, if it were established that Mr Barez remained committed to an ideology that justified violence, his risk would be substantially elevated (and higher than in the context of doubt). If it is established or assumed that Mr Barez has now genuinely eschewed ideology that justi­fies violence, in my view his risk would remain elevated in the context of the other risk indica­tors (most significantly his ongoing contact with persons identified as supporting violent ex­tremism) but it would be less elevated than previously opined, particularly if he were motivat­ed to avoid those problematic associations.
6. As to the acts the defendant may engage in that might constitute a serious terrorism offence, Dr Eagle observed: Mr Barez is most likely to provide support to a terrorist organisation; recruit for a terrorist organisation; belong to a terrorist organisation and/or provides or receives training connected with terrorist acts. That is not to suggest that Mr Barez would not be influenced by his peers to engage in acts that may be part of planning for a terrorist act or that may involve violence to further a religious or political cause.
7. Dr Eagle's assessment of the duration of an ESO was as follows: It is difficult to speculate as to the length of time needed under supervision to sufficiently mitigate or reduce Mr Barez' level of risk to a level no longer considered unacceptable by the Court. Mr Barez' risk of engaging in acts of violent extremism is likely to be significantly reduced if he is able to demonstrate a sustained period of time without communicating or associating with persons known or suspected of being involved in violent extremism.

Report of Ms Dewson

1. I accept the submission for the plaintiff that Ms Dewson's conclusions broadly align with those expressed by Dr Eagle, although one aspect of divergence is that Ms Dewson considered, on the basis of the defendant's disregard for the rights of others, failure to comply with the rights of others and evidence of conduct disorder prior to the age of 15, that the defendant meets the diagnostic criteria for Antisocial Personality Disorder.
2. The defendant told Ms Dewson that he enjoyed the "adrenalin" associated with his offending. Ms Dewson observed that this suggested he "maintained sensation-seeking personality traits" and noted that he was "reported able to overcome any objection to his violent behaviour by downplaying the significance of the injuries, justifying to himself that 'they weren't dead.'"
3. As concerned the defendant's religious beliefs, Ms Dewson observed that there was no evidence that the defendant was exposed to extremist religious views in the family context. As to the defendant's support for al-Qa'ida, Ms Dewson observed: According to Mr Barez, he has previously supported Al Qaeda, in that he "thought their cause was helping", reportedly being unaware of the extent and nature of their operations. Further, at the time he reportedly believed that "what they (Al-Qaeda) were fighting for was right", highlighting his belief that they were "fighting for people who had been oppressed.

Risk assessment

1. Ms Dewson also made use of the VERA-2R tool to assist her assessment of the defendant.

Beliefs, attitudes and ideology

1. Ms Dewson stated that the defendant had historically sympathised with a terrorist organisation, though reported to have been re-educated and denied current support for violent extremism. Ms Dewson spoke with the defendant about his support for al-Qa'ida: According to Mr Barez, in response to the oppression of Muslims around the world, for a period of around 12 months (in 2014), he believed "that violence was justified. Attack innocent people, whoever was killing innocent people". Mr Barez denied holding any views that support the use of violence at the time of assessment.
2. In interview, the defendant stated, that at the time of his support of al-Qa'ida, there were significant events occurring around the world in relation to the treatment of Muslims, which caused him "moral outrage". He could not recall what those events were.

Social context and intention

1. Ms Dewson observed that the defendant had made vague non-specific threats, but had not identified a specific person, group or location and there was no indication that he had expressed a willingness to die for his cause. She then stated: There is no conclusive evidence that Mr Barez has ever planned or made preparations to commit an act of terrorism, although his recent participation in archery may be a concern. This is particularly concerning as he has shared this interest with a person known to Mr Barez as being linked to violent extremism. … Mr Barez appears particularly susceptible to influence from others, despite his objection to this premise. As such, he may be vulnerable to indoctrination by others in the future.

History, action and capacity

1. In the context of this risk factor, Ms Dewson referred to the defendant's extensive history of interpersonal violence, and apparent informal training in extremist ideology in custody at around the time of the "Al Qaeda" tattoo. Ms Dewson observed that he had an extensive network of criminal peers and had demonstrated the capacity to plan and execute violent offences, including offences involving weapons. However, whilst the defendant has sound organisational skills, Ms Dewson stated that those skills are unlikely to be sufficient to allow him to execute a complex plan without support.

Commitment and motivation

1. Ms Dewson opined that the defendant's motivation to align himself with a terrorist organisation was likely motivated by religious obligation, criminal opportunism, group belonging, excitement and the acquisition of status.

Protective factors

1. Ms Dewson observed that the defendant had good family support and had experienced a period of stability in the community, albeit under parole and the ISO.

Overall risk assessment

1. Having regard to all the information available to her, Ms Dewson concluded that Mr Barez presented a moderate risk of violent extremism.
2. She stated that "one of the greatest factors elevating the defendant's risk is his exposure to extremist views through his peer networks", in circumstances where, as evidenced by the "Al Qaeda" tattoo, he was susceptible to indoctrination.
3. As to the more specific prospect that he might commit a serious terrorism offence, Ms Dewson observed: Mr Barez has a history of unprovoked, group-based violence where weapons have featured. Although these were not known to be religiously motivated, his offence history reflects his capacity to inflict violence on unsuspecting members of the community and his general disregard for the safety of others. He appears to have engaged in repeated acts of violence within custody, inflicting what may be considered serious violence on fellow inmates. Given Mr Barez's history of violence, his previous use of weapons and his alleged statements relating to the use of military-grade weapons to bring harm to the community (i.e., to blow up a plane), should he chose to engage in a terrorist attack in the future, his conduct may amount to a serious terrorism offence. Whilst there is no evidence that he has the capacity to access military-grade weapons, he has demonstrated the capacity to access a gun in the past. These highlight concerns in relation to the severity of harm he may be able to inflict, should he choose to in the future.

Duration

1. Ms Dewson concluded that an ESO of three years in duration would be appropriate, though with conditions that reduced in restrictiveness over time.

Risk Assessment Report - Section 25(3)(b) and (c)

1. As earlier mentioned, the RAR was completed by Ms Terry, a forensic psychologist, on 8 August 2019.

Presentation during interview

1. The defendant participated in two interviews, for a total of three hours, for the purpose of the RAR. On both occasions, he arrived some 40 minutes late, and was described as having been "easily engaged, albeit distracted at times".
2. Ms Terry opined 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, the LSI-R actuarial risk offending tool had been applied to the defendant to assess his risk of general re-offending. That assessment yielded a score of 9 (out of a possible 54), placing the defendant in the low risk category.
2. In July 2019, Ms Terry applied the Violence Risk Scale ("VRS") to the defendant. The defendant's VRS score places him in the high-risk category.

Violent extremism risk assessment

1. Ms Terry also applied the VERA - 2R structured risk assessment tool to the defendant.
2. The application of the VERA-2R yielded an overall risk profile for extremist violent offending in the moderate range.
3. There were a number of factors underpinning that conclusion as follows: 1. The defendant's "most significant risk factors relate to consistent associations with individuals who hold extreme religious views and/or have been linked to violent extremism". The risk arising from these associations is tied to "strong evidence towards his vulnerability to being heavily influenced by his peers". 2. The defendant presents with a "history of commitment to an ideology that justifies violence". This history is evidenced by the al-Qa'ida tattoo. Ms Terry also stated relevantly: "During interview Mr Barez acknowledged a period of approximately two years where he supported the Islamic extremist group al-Qa'ida, stating he "didn't know any better". 3. The defendant had been previously linked with organised criminal networks and had demonstrated the ability to carry out planned and instrumental acts of violence including, those involving the use of weapons.
4. 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 provided 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.

Supplementary RAR

1. On 11 September 2019, Ms Terry produced the supplementary RAR, in response to the provision of further material relevant to the present application.
2. The supplementary RAR confirmed Ms Terry's assessment that the defendant fell into the moderate category, as to his risk of engaging in politically motivated violence, violent extremism or terrorist activity. In particular, Ms Terry opined 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 (i.e. access to funding and sources of help). 3. There is some evidence of reduced empathy or intolerance to those outside his group. 4. His extracurricular activities are noted by Dr Shanahan to have martial aspects to them in addition to suggesting an affinity with historical Islamic practices related to the conduct of jihad.
3. Ms Terry stated that, whilst her view remained that the defendant fell in the moderate risk category, "should he 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 - Section 25(3)(j)

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

The index offences

1. On 15 March 2013, the defendant was sentenced to a total period of imprisonment of 8 years and 6 months for two counts of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act and the common law offence of conspiracy to commit armed robbery. The sentence expired on 18 November 2019.
2. 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.

Offence 1 - 7 March 2011

1. At about 11.00pm on 7 March 2011, the defendant entered the Brewhouse Hotel in Blacktown with two other men. One of the offenders was armed with a handgun, another had a knife and the third had a shopping bag. It is not clear which of the three was the defendant.
2. One of the offenders threatened an employee with a knife and obtained money from the front till while another offender pointed the pistol at a security guard and asked where the safe was. That offender then approached the duty manager and asked to be taken to the safe.
3. The offender and his co-accused stole about $30,000 from the safe, plus the money from the tills.
4. 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 was headed towards the Prospect Hotel after his co-accused had purchased gardening gloves and discussed the commission of a robbery. Police arrested one of the four conspirators in the driver's seat of the BMW, and the 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, 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. He demanded that staff open the cash drawers. The defendant's co-accused emptied the contents into a backpack.
2. The defendant asked the manager to take him to the safe, but it could not be accessed due to a time delay mechanism.
3. The submachine gun was later located by police at the house of the defendant's co-accused.

Beliefs or commitments of the defendant - Section 25(3)(l)

1. I have earlier discussed the opinions of Dr Eagle, Ms Dewson and Ms Terry regarding the defendant's beliefs or commitments.

Past statements

1. The plaintiff also relied upon an incident on 29 March 2014, when the defendant is alleged to have said to a Corrective Services officer, "I wish I had an RPG I would blow that plane out of the sky", in reference to a plane flying over the prison. The officer then asked him whether he was "inspiring [sic] to be a terrorist", to which the defendant replied "well I'm not an extremist but love Al-Qaeda".
2. I have earlier made findings as to the defendant's statement to LSC Kirk on 30 January 2017.

First Shanahan Report

1. The plaintiff relied upon the First Shanahan Report as further support for a contention that the offender continued to harbour a significant interest in intolerant or literal interpretations of Islam and the martial aspects of the religion. The following opinions in this report were relied upon in that respect; 1. There is a clear connection between archery, horse-riding and hadith regarding jihad. 2. Modern jihadist groups, including al-Qa'ida, have prominently featured horse riding as part of its jihadist narrative. 3. The defendant's WhatsApp profile picture bears a quote from Ibn Taymiyyah. Ibn Taymiyyah 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 and also influenced the thinking of leading jihadists such as Osama Bin Laden".
2. The evidence regarding the defendant's experience with archery is not limited to the messages exchanged with Mr Elomar. Police made a number of observations of the defendant engaging in archery in August 2019.
3. In interview with Dr Eagle, the plaintiff was asked about Dr Shanahan's suggestion that it was unlikely that he did not know about the nature of al-Qa'ida at the time he got the tattoo. Dr Eagle recorded: Mr Barez said that he was "way too young" at the time of the Bali bombing. He said that he was conscious of Osama bin Laden's significance because he happened to be killed when he was incarcerated. He said that he was told by inmates that Osama bin Laden and al Qa'ida were involved in terror attacks, but was convinced that they were "fighting people who were killing innocents." He said "the boys would say they'd go in the army barracks and that they would not hurt anyone innocent." He said that he changed his mind about al Qa'ida when he found out "the truth."
4. The plaintiff correctly submitted that it is implausible that the defendant was not aware of the connection between al-Qa'ida and terrorist attacks. The September 11 attacks are undoubtedly one of the most widely publicised events of the 21st century. The involvement of Osama Bin-Laden and, in turn, al-Qa'ida, in those events is notorious.
5. Consistent with this, the First Shanahan Report concludes that, "It is reasonable to believe that Mr Barez publicly supports extremist views of Islam and has an affinity with terrorist ideologies".

Second Shanahan Report

1. The Second Shanahan Report related to six videos, which the defendant had searched for on YouTube in the period from 11 December 2019 to 3 January 2020. The material was obtained from a Cellebrite download from his mobile phone.
2. According to Dr Shanahan, the first, second and fourth of these videos were broadly consistent with mainstream Islamic thought.
3. The third video contained a recitation of a passage of the Quran. That alone was consistent with mainstream Islamic practice. Dr Shanahan opined: On its own, the Qur'anic recitation by a well-known qari is part of mainstream Islamic practice. The way in which it is presented in this video however, means that it has some connection to an extremist ideological orientation by linking the word of God with political events.
4. The presentation of the video, including the words "And never think that Allah is unaware of what the evildoers do" overlaid across conflict-related images, including those of US military jet and dead children from middle eastern conflicts, was suggestive of more political overtones. Dr Shanahan observed: This imagery is quite explicit in trying to link a religious belief in what will happen to 'evildoers' with military actions (including the killing of children) undertaken or supported by Israel and the United States. This technique moves the video from being simply a religious one to a religious-political one in line with the extremist views of groups such as the Salafist-Jihadist group Islamic State ('The US has killed women, children and the elderly…'). (The reference in brackets comes from a publication of the Islamic State, Dabiq, Issue 3).
5. The fifth video is of a Channel 9 news story about the sentencing of three Melbourne men who planned an attack in Federation Square in the name of the Islamic State.
6. The sixth video contained a critique of the way Muslim women's circumstances are portrayed negatively in western cinema and television. There was nothing inherently extremist about the general premise, however, some of the material was "pejoratively anti-western" and included a denunciation of movement towards a "Godless liberal dystopia".
7. Dr Shanahan observed that the videos alone did not permit a determination as to whether the defendant held extremist or terrorist ideologies. The videos, however, showed, in Dr Shanahan's opinion, that the defendant "is interested in a conservative, Salafist form of Islam. Some of the videos express anti-US/Israel, anti-secular liberalism sentiments that are shared by Salafist-Jihadist groups and there is a report on a terrorist sentencing, but there is no indication of any Islamic material with countervailing views. This may suggest that he is attracted to more extremist religious views".
8. The defendant denied viewing the video. He stated that he had the video in his pocket and was listening to the words recited. However, in my view, the defendant's evidence, in this respect, was unconvincing, particularly when viewed in light of other parts of his evidence as to the acquisition of material and expressions of his beliefs.
9. When asked if he could understand Arabic, he said, "no, not fully". I agree with the submission of the plaintiff that here, the defendant was downplaying his affinity with extremist beliefs. That conclusion has an added significance because the video was played between 11 December 2019 and 3 January 2020.
10. The defendant referred to the judgment of Davies J in the State of New South Wales v Haidar [2020] NSWSC 38 at [79] to [81] as a basis for casting doubt as to the weight to be given to Dr Shanahan's opinions. Those paragraphs of Davies J's judgment concerned the admissibility of certain opinions expressed in the matter by Dr Shanahan in which he expressed an opinion as to the beliefs held by the defendant. However, there was no objection to his evidence in this case. Nevertheless, having regard to the defendant's submissions, I have drawn a distinction, in terms of the weight of the evidence, between those parts of Dr Shanahan's evidence which concerned expressions, symbols or pictures and depictions, which he opined may be connected to intolerant or literalist interpretations of Islam (for which he is well qualified) and other related opinions and opinions as to whether the possession, viewing or holding of such things demonstrated that the defendant supported such views (which were also subject to analysis by the independent experts). Nevertheless, as to this second aspect, the opinions of Dr Shanahan do have greater weight insofar as they provide 'indicators' which may assist in determining whether a person engaging with such expressions, symbols, pictures or depictions, may have held, or does hold, a radical view of Islam.
11. Dr Shanahan was cross examined briefly regarding the opinions he expressed about the defendant's interest in horse-riding and archery. He accepted that, in general terms, the practice of looking to hadith (i.e. statements describing the words and actions of the prophet Mohammad) for guidance was unremarkable.
12. However, Dr Shanahan's evidence remained unshaken in that the combination of the defendant's tattoo, his interest in horses and archery, and the horse stud branding, all constituted indicators of radicalised views.

Dr Clarke Jones

1. Dr Jones had the benefit of two interviews with the defendant and provided a report by way of an affidavit. His evidence is uncontested by the plaintiff.
2. It should be noted, however, that the first meeting was principally directed toward rapport building.
3. The defendant highlighted the following parts of Dr Jones' evidence: Dr Jones opined that 'Certain sports such as archery, wrestling, swimming, running, and horse riding in the context of Islam has particular significance and meaning. These sports, particularly horse riding, should not be taken out of context or conflated with terrorism. To date, no contemporary terrorist acts have used horse back and/or archery to launch or conduct a terrorist act'. He further opined that 'From a psychological/criminological (non-religious) perspective, sporting and leisure activities, and spending time with people of similar goals and interests, can be an alternative to antisocial behaviours . Also, engaging with pro-social peers in a sporting arena can lead to the adoption of positive values, which can have a significant impact on an individual's attitude. Sports participation has been highlighted in research as a context of constructive development for youth and is associated with positive health behaviours, including increased health‐related physical activity, healthy food habits, and positive socio‐emotional outcomes. Directing a young person's energy towards sport can satisfy his (or her) need for success and intense sensations. Involvement in regular physical activity develops initiative, emotional regulation, the ability to establish goals, and time-management in young people, as well as problem solving and perseverance'.
4. Some other parts of Dr Jones' evidence should also be given particular mention. Dr Jones also gave an opinion that the defendant's participation in the activities referred to in the above extract were positive in that they showed a "connected personality". I accept that they may give such an indication. He also opined that this factor lessened the prospect of the defendant falling "prey" to those wishing to ideologically "alienate" him. The difficulty with that latter conclusion is that the defendant's attendance at the gym also brought the defendant into contact with some of the problematic associations that I have earlier referred to in this judgment.
5. Dr Jones referred to the teachings of Ibn Taymiyyah. He noted that his teachings were known to have put an emphasis on the importance of jihad and martyrdom for jihad. Dr Jones stated that they also gave a broad definition of what constituted aggression against Muslims and what actions by non-believers made jihad against them permissible.
6. I accept the submission of the plaintiff that the evidence needs to be compared with the defendant's evidence in cross-examination as to moving to the defence of Muslims. I will return to that issue.
7. In that context, Dr Jones opined: In a "holy war" context, when Muslims, their faith or their homelands are under attack, Islam permits them to wage war to protect themselves - self defendant. However, Islamic law (shariah) has very strict rules for the conduct of such war. There are a number of reasons, but the Qur'an is clear that self-defence is always the underlying cause. The Qur'an has many passages about fighting, where some of them advocate peace, while some appear quite hostile. However, the Bible, the Jewish and Christian scriptures, show a similar variety of attitudes to war, which are all written in an historical setting and should not be taken out of this context.
8. As to the horse stud branding, Dr Jones opined: The messages, pictures and audio-visual material presented to me in my brief do not all have connection to extremist or terrorist ideologies. I recognise Figure 2 as the flag commonly used by ISIS (Islamic State of Iraq and Syria), also known as ISIL (Islamic State of Iraq and the Levant). The white banner at the top of the flag reads: "There is no god but Allah. Mohammad is the messenger of Allah." This phrase is a declaration of faith used across Islam, and is known as the shahada. Underneath is a white circle emblazoned with black writing reading "Mohammed is the messenger of God", which is meant to resemble the Prophet's seal.
9. Finally, Dr Jones gave an overview as follows: Therefore, in Mr Barez's case, it is highly problematic to assume that his claimed associations and so-called radicalised beliefs at the time of his incarceration still hold relevant now after three years of a crime free existence since release. There is no conclusive information to suggest that Mr Barez has adopted or continues to endorse violent religious ideology. On the contrary, I see him as a devout Muslim who now seeks understanding of traditional schools of thought regarding Islam. He is also a happy and proud family man seeking to improve himself through work, religion, and sporting ambitions.
10. Based on these opinions, the defendant submitted that his interest in archery and horse riding should not be factors taken into account against him, in assessing or concluding, to a high degree of probability, that he presented an unacceptable risk of committing a serious terrorism offence. I do not accept that submission.
11. Given that I have formed the view, that the 'claimed associations' referred to by Dr Jones are, relevant and important associations for the purposes of assessing risk, and that there is a proper basis for a conclusion that the defendant held, to a varying degree, a "radicalised belief" over time, this final passage of Dr Jones' evidence does tend to undermine, overall, the efficacy of his opinions.
12. Whilst there are aspects of the evidence of Dr Jones which are useful and informative, I prefer the opinions of Dr Shanahan, where there are clearly conflicting views as to those issues, having regard to the basis for the opinions stated by Dr Shanahan in his evidence, his qualifications and experience and the short comings, in that respect, in the report of Dr Jones, to which I have referred above.

Risk Intervention Report

1. The RIR was prepared on behalf of Corrective Services NSW.
2. As to the defendant's risk, 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. The conditions suggested as appropriate in the RIR included, electronic monitoring and a schedule of movements, as well as restrictions to the defendant's travel and associations.
4. The RIR did not suggest that it would not be practicable to manage the defendant in the community under an ESO.

Compliance with Obligations and Post Release Conduct

1. The defendant has some history of failing to comply with his parole obligations. During his parole in relation to the index offences (which commenced on 16 November 2016), he failed to report on a number of occasions and at other times was 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 offender'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 minimal. It was alleged that he threw one punch after it commenced, but otherwise 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 a breach of a condition not to associate with Mr Zakarya in February 2017.
4. On 9 June 2017, approximately 2 weeks after the Local Court granted the defendant bail in relation to the affray offence, the revocation of the offender's parole was rescinded.
5. On 11 April 2019, the defendant was charged with shoplifting, after it was alleged he took an item from a pharmacy.

Treatment or Rehabilitation Programs

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

Views of the Sentencing Court

1. The defendant was sentenced for the index offences by Judge English on 15 March 2013.
2. The defendant gave evidence on sentence. Her Honour described the defendant as a "particularly unimpressive witness". In particular, her Honour expressed concerns in relation to contradictions in the material and evidence regarding the offender's use of drugs; her Honour did not accept the defendant's evidence regarding his reported heroin habit.
3. Judge English went on to observe, "I find 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 that, "his prospects for rehabilitation are impacted upon his misconduct whilst he has been in custody and his inability to tell the truth".
4. Her Honour also 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…".

Other Relevant Matters - Conduct in Custody

1. During his time in custody, the defendant was charged with 23 different institutional breaches. Those breaches included the following: 1. seven assaults in April, July and September 2012; 2. two fights or other physical exchanges 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. The defendant was placed in segregation on four occasions 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.
3. A custodial note, dated 2 December 2011, observed as follows: Inmate Barez is one of the most difficult to handle Inmates in the wing. He always argues about everything. He never follows the centre routines.
4. The defendant's custodial behaviour did improve in the period prior to his release. The Community Corrections' Pre-release Report, dated 23 August 2016, stated: Whilst he would appear to have responded to his latest regression and transfer to Wellington Correctional Centre in a positive manner it remains to be seen whether this is truly a change in attitude or in relation to the upcoming release consideration.

Other relevant matters - further associations

1. As at 18 July 2019, the defendant was employed by Mohammad Omar at "Zentrix Carpentry". "Mohammad Omar" appears to be Muhhamad Umar Wahabzadah, who holds the ABN for Zentrix Carpentry Pty Ltd. Mr Wahabzadah is a person of interest to the High Risk Terrorist Offender Unit of NSW Police. On 25 August 2016, NSW Police executed a search warrant at Mr Wahabzadah's residence and obtained a number of items, including an Islamic Brotherhood jumper depicting an AK-47, a black and white Islamic flag and a loaded Remington rifle, as well as ammunition, knives and knuckle dusters. The defendant associated with these persons until his warrant arrangements changed under the ISO (and AB).
2. The defendant was found to have continued his association with Mr Zakarya, an alleged 'Brothers for Life' member, notwithstanding a formal direction by his parole officer not to associate with Mr Zakarya. This connection also had a relationship to the defendant breaching a consorting order. The defendant knew Mr Zakarya as a family friend and was a person he knew in custody.
3. An examination of a Cellebrite download of the defendant's phone identified a number of further associates with criminal records, including some who may hold extremist views. These associations were addressed in the affidavit of Michael Van Eyk, dated 28 January 2020, and included the following: 1. Hicham Ismail, who appeared in multiple images on the defendant's phone. When Mr Ismail was in custody in 2014, an Islamic State flag was found in his cell. Mr Ismail was identified as a friend of the defendant. 2. Cem Tekirdag, who appeared in multiple images on the defendant's phone, with whom the defendant exchanged 90 text messages on 18 and 19 November 2019. Mr Tekirdag was the subject of police intelligence reports suggesting he held extremist Islamic views. The defendant saw this person one week into his ISO. 3. Mr Bilal Elazamtur, who the defendant had saved as a contact in his phone. Mr Elazamtur has an extensive criminal history, including a robbery whilst armed with a dangerous weapon charge for which he was sentenced to 6 years imprisonment in 2013. Mr Elazamtur was the subject of an ISO under the THRO Act following a preliminary hearing. That application did not proceed to a final hearing. 4. Mr Nayef Salameh, who called the defendant on 19 November 2019, was the subject of a police intelligence report suggesting he held extreme Salafist beliefs.

THE RISK POSED IS UNACCEPTABLE

1. The defendant submitted that the Court would not be satisfied to a high degree of probability, that the defendant posed an unacceptable risk of committing a serious terrorism offence, if not kept under supervision under an ESO.
2. In his primary submission, in that respect, it was contended that the risk was, in fact, low and the possibility of committing a serious terrorism offence was only notional.
3. In the alternative, it was submitted that, if the Court reached the requisite satisfaction under s 20(d) of the THRO Act, then it was of greater likelihood such an opinion would be formed because of 'associations'. In that event, it was contended that the Court should be minded, if making an ESO, to order a shorter duration for any order made or lesser monitoring conditions, commensurate with the risk, such as eliminating any requirement to wear electronic monitoring equipment.
4. As earlier mentioned, the defendant provided sworn evidence disavowing any support, much less commitment, to a terrorist organisation of any kind. The defendant contended that the Court would accept, on balance, this statement to be genuine and accurate. There was an absence of evidence that the defendant believes in terrorism.
5. The Court should not "automatically" conclude that a risk arises because the defendant was fundamentalist or conservative Muslim.
6. It was further submitted that the defendant gave clear evidence of his withdrawal from his previous view that al-Qa'ida is an organisation that defended the innocent. There was uncontested evidence that, prior to any commencement of these proceedings, or notice of potential proceedings, the defendant attempted, on a number of occasions, to remove his tattoo. He was unsuccessful for two reasons, first that it was costly and second that it was large.
7. In cross-examination, the defendant maintained, it was contended, that he believed in self-defence and defence of another innocent. However, it was submitted that such a view would be consistent with any law abiding citizen and not a driver or justification of extremist organisation. The defendant had no interest in, or truck with violent extremism or terrorism. He wished to resile from any sentiments in favour of al-Qa'ida. He had a willingness to live in Australian society and adopt its laws and codes.
8. As to associations, it was further submitted that: 1. his maturity, family life, stable employment and sport made him not easily susceptible to influence "by his associates"; 2. only two of his associates have their own ESO; and 3. the defendant has not associated with Mr Elomar other than a meeting in the gym and WhatsApp messaging.
9. I am 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 by an ESO. It follows that I reject the primary submission advanced for the defendant.
10. My reasons for that conclusion are as follows: 1. The offences of greatest relevance to the risk posed by the defendant would appear to be those of 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 of the Criminal Code). 2. However, the foundation for the conclusions reached by the Court do not lie in finding a necessary correlation between the defendant holding conservative views as a Muslim and the risk of engaging in a terrorist act or doing acts in preparations for, or planning of, a terrorist act, but rather, the facts and circumstances of this matter. 3. I have earlier summarised the opinions of the independent experts, and in particular, Dr Eagle. These opinions weigh significantly in favour of the conclusion I have reached under s 20(d) of the THRO Act. This is particularly so, when that risk is assessed in the light of the absence of supervision. 4. Overall, and as earlier mentioned, the defendant's association with persons of interest to anti-terrorism authorities, together with a history of commitment to extremist ideologies, fundamentalist adherence to Islam and demonstrated ability to carry out planned and instrumental acts of violence involving the use of firearms, led the independent experts to variously conclude that the defendant had an elevated risk of, or a moderate risk of, extremist violence or terrorist offending. 5. Dr Eagle took into account some modification in the defendant's behaviours, lifestyle and views. Had she not formed the positive belief that the defendant's views had changed, her assessment of the risk would have been higher. 6. There are a number of concerning aspects of the defendant's beliefs as demonstrated over time, as follows: 1. He admitted to Ms Terry that in the past he held extremist views and was, for a time, a supporter of al-Qa'ida. The depth of his commitment to those extremist views is evidenced by the fact that he obtained a very large tattoo of the letters "AL QAEDA" while in prison. That tattoo could not be said to be an impulsive act. Some degree of planning was necessary to obtain a tattoo in prison and the defendant had the final letters filled in after the tattoo had been discovered and he had been punished for it. 2. He wanted to go to Goulburn to meet with "the boys" - the people who held the belief that al-Qa'ida was good. That this understanding came from others again demonstrates why the experts expressed a view that the defendant is susceptible to extremist views from adverse associations. 3. The defendant tried to downplay his viewing of the third video referred to in Dr Shanahan's supplementary report. I have found that he was viewing the video, which contained the implications as to beliefs that I have earlier discussed. 4. The defendant attempted to minimise his support for al-Qa'ida on the basis that he did not understand that their organisation were "killing people senselessly". This statement is implausible. The organisation's involvement in terrorist attacks is notorious; in particular, al-Qa'ida is synonymous with the September 11 terrorist attacks. Its connection to the Bali bombings is similarly well known. It is true that the defendant was very young when his beliefs developed, but his assertion that he was not aware of the connection between these events and al-Qa'ida may not be accepted. 5. The defendant confirmed in evidence that he ascribed to a conservative version of Islam and further, in that context, that he believed in self-defence and defence of another. He continued to hold firm views, at the time of the giving of his evidence in these proceedings, regarding the need to come to the defence of what he believed were the oppressed and/or innocent, and protecting them from 'outsiders'. I agree with the submissions for the plaintiff that this is the very driver and justification of so much extremism. 6. It must be acknowledged that a belief in the need to stand against oppression would not, of itself, be cause for concern. In the defendant's case, however, it would seem that such a state of mind led to him to develop an affinity for a notorious terrorist organisation. The defendant understood that, at that time of his support, namely, that al-Qa'ida was defending Muslim lands against western allies, including Australia. 7. Overall, the evidence stands against, to the requisite standard, a conclusion being reached, as submitted by the defendant, that he had abandoned his previously acknowledged commitments, if not to extremist violence, to the need to defend what he may perceive to be the oppressed or innocent, in this context. 1. As I have found, the defendant sought to minimise the extent of his associations with various persons, such as Mr Elomar or Mr Elzamtur. However, in my view, the evidence does demonstrate, primarily until the ISO, the defendant maintained a number of problematic associations as earlier described in this judgment. 2. These persons have extremist views or criminal histories. 3. In the absence of supervision, there is a real risk of reverting to these associations as opined by the independent experts. 4. The sentencing remarks of Judge English, regarding the level of criminal professionalism involved in the offending, are consistent with the views expressed by the experts with respect to the defendant's organisational capacity and the risks associated therewith. 5. In assessing the unacceptability of the risk of such offences, it is relevant to consider not only the probability of such offences being committed, but critically, the degree of harm likely to result. Relevantly, in State of NSW v Ceissman [2018] NSWSC 508, Rothman J observed (at [24]-[25]): [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. 1. In that respect, the defendant has a history of engaging in highly organised, violent offences. Those offences have involved the use of firearms, including a working submachine gun. He also has a history of carrying a pocket knife as a weapon. Should the defendant's capacity and willingness to obtain and use such weapons manifest in the context of a terrorism offence, catastrophic harm could result. 2. The risk of such an eventuality occurring is heightened by the defendant's propensity to engage in violent conduct "for the excitement". 3. The defendant's associations, a history of commitment to extremist ideologies and adherence to fundamental views of Islam, apparent susceptibility to influence, his criminal background and past access to firearms including, to a home-made sub-machinegun, together with a capacity to carry out and plan an instrumental act of violence, bear significantly on the risk of committing a serious terrorism offence posed by him, if not kept under supervision.

DISCRETIONARY CONSIDERATIONS AS TO WHETHER TO MAKE THE ORDER

1. Where the Court determines that each of the threshold criteria enabling the making of an ESO are satisfied (including the unacceptable risk test), the Court does, nevertheless, retain a discretion as to whether or not to make an order. However, in my view, there are no discretionary considerations in the present case that would lead the Court to refrain from making an ESO, in light of the findings under s 20(d) of the THRO Act.
2. Further, the paramount consideration in determining whether or not to make an ESO is the safety and protection of the community (s 25(2) of the THRO Act). The impact of an ESO on an offender's liberty may be relevant to the Court's exercise of its discretion to make the relevant orders, but is not to be taken into account in determining whether the preconditions are satisfied.

THE APPROPRIATE ORDERS

1. The statutory preconditions for the making of an ESO have been met in this case. There is no reason not to exercise a discretion to make an ESO and the various mandatory factors, earlier discussed in this judgment, affirm the making of such an order.
2. As to conditions, the parties advanced limited submissions. The defendant raised various particular issues concerning scheduling and electronic monitoring. In the first case, the issues raised were adequately met, in my view, by the amendment to the conditions brought about by exhibit D. As to the balance of the conditions proposed by the plaintiff, other than those modified by Fullerton J in making the ISO (which were translated into the conditions operating under the ESO), they were commensurate to the risks which have been found by the Court, and the supervision of the defendant, when considered in the light of the requirements of Div 2.6 of Pt 2 of the THRO Act. The conditions were considered appropriate by Dr Eagle.
3. As to duration, I have accepted, in part, the alternative submission advanced on behalf of the defendant and the concessions made by senior counsel for the plaintiff, that the length of the ESO made should be of a shorter duration than sought by the plaintiff in the summons, in the light of some progress made by the defendant. An ESO with a duration of one year is consistent with the progress of the defendant, the management of the risks found by the Court and, in particular, the management of associations. A duration of one year is not inconsistent with Dr Eagle's opinion as to the appropriate duration of an ESO.
4. The Court confirms its orders of 18 February 2020.

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: 10 August 2020