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[2026] NSWSC 321
Supreme Court of NSW
2026-04-02
Emmett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Benshabir (Interlocutory) [2026] NSWSC 321
Hearing dates: 02 April 2026
Date of orders: 02 April 2026
Decision date: 02 April 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Dismiss the application for an ISO.
(2) Plaintiff to pay the defendant’s costs of that application.
Catchwords: JUDGMENTS AND ORDERS – Amending, varying and setting aside – whether District Court orders effective from time they are pronounced – whether District Court judge revisited or withdrew orders after they had been pronounced.
HIGH RISK OFFENDERS – Interim supervision orders – whether defendant “eligible offender” under Terrorism (High Risk Offenders) Act 2017 (NSW) after District Court quashed sentence of imprisonment.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
District Court Rules 1973 (NSW), r 12
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 10, 25, 27
Cases Cited: State of NSW v Farhat [2026] NSWSC 19
Category: Procedural rulings
Parties: State of New South Wales (Plaintiff)
Yaqoob Benshabir (Defendant)
Representation: Counsel:
C Melis (Plaintiff)
G James AM KC (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Crimcorp Defence Lawyers (Defendant)
File Number(s): 2026/00129370
Publication restriction: Nil
I have before me an urgent application for an interim supervision order sought by the State of New South Wales against the defendant under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). The matter is urgent because the defendant was, or will shortly be, [1] successful today in a severity appeal, the result of which is that the District Court judge hearing the appeal has dealt with, or proposes, to determine the matter by way of a conditional release order for 12 months from today.
By way of background the defendant, at least until today, was in custody serving a sentence of imprisonment for an affray offence committed on 10 February 2024. The defendant was also, until recently, facing a charge for possessing or controlling violent extremist material obtained or accessed using a carriage service. While I am informed that that charge has been withdrawn, the Court has primary evidence of the material that prompted that charge. That material is relied on by the plaintiff in this Court for the purpose of risk assessment.
I accept, for this urgent preliminary inquiry, that inferences are available, the effect of which are that the State's documentation would, if proved, demonstrate that the plaintiff is a “convicted NSW terrorism activity offender” within the meaning of s 10 if, but only if, he meets the definition of "eligible offender." In expressing that view I offer no view of success of that matter at final hearing.
1. The summons and accompanying documentation is in the proper form and the application was brought within the statutory timeframe.
2. The defendant is an eligible offender under s7 of the Act, as matters stood before her Honour.
3. The offender is a convicted NSW terrorism activity offender under ss10 and 11.
4. The preliminary hearing was heard within 28 days of the application being filed.
5. The matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Accordingly, his Honour made orders appointing two experts to examine the defendant and prepare reports and directed the defendant to attend those examinations.
I would add that, subject to what I say below, I have reviewed the material and am also satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an extended supervision order. In that regard, the file was provided to me yesterday afternoon as Duty Judge against the possibility that this application came before me today. I have had an opportunity to read the material. In making that assessment about what the matters alleged in the supporting documentation would, if proved, justify, I have taken into account the mandatory considerations in s 25 of the Act, including as the paramount consideration the safety of the community.
The matter came before me on an application for an interim supervision order. As matters stood before Weinstein J, the defendant’s “current custody or supervision” was not scheduled to expire until July 2026. However, there was a distinct possibility that a severity appeal, pending in the District Court, would lead to a substantially shortened period before expiry.
His Honour observed that the threshold requirement for an ISO in s 27(a) of the Act is only engaged if the current custody or supervision "will" expire before the proceedings are determined. It does not, according to the ordinary meaning of the language, accommodate the situation where there is merely a possibility, even a likelihood, of the current custody or supervision expiring. It is not necessary or appropriate for me to weigh in on that debate, save to observe that I do not think that his Honour's view, or the same view reached after considered argument by Hamill J in State of NSW v Farhat [2026] NSWSC 19, is plainly wrong.
The matter has come before me because, as matters transpired, the defendant's severity appeal has been (or is about to be) successful and her Honour Judge David of the District Court either indicated she would deal with, or has dealt with, the matter by way of a conditional release order for a period of 12 months from today.
Her Honour indicated she would not enter those orders until 4:30pm today. The circumstances in which that indication arose warrants some attention. Nobody before me had the benefit of the transcript. After hearing submissions from the Bar Table from counsel both of whom were present in the District Court for at least most of that hearing, I endeavour to summarise the facts in a manner that appears to me to be not seriously in dispute. Should this matter go further it may be that the parties can debate with the benefit of a transcript of the hearing before her Honour.
When the matter was first called before her Honour, counsel for the State was not present in court. Representatives for the State, including counsel, were just outside the courtroom.
The defendant's counsel made it clear to her Honour that the defendant contended that no sentence of imprisonment should ever have been imposed, having regard, among other things, to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant's counsel also said that there was a prospect that persons might seek a stay and that the defendant would contend that the District Court had no power, that the State had no standing to seek a stay and that no stay should be granted in the court's discretion.
The representatives for the State entered the courtroom at some time shortly thereafter. The hearing was adjourned and was resumed shortly before midday. When her Honour came on the Bench, the prosecutor told her Honour about the fact of the proceedings in this Court that had been before Weinstein J yesterday, but did not hand up a copy of the orders that his Honour made.
As Mr James points out, I can understand why the parties might be cautious about putting material before her Honour that would not be relevant to exercise of a sentencing discretion – some of the evidence in this Court would fall into that category. Of course, there is a difference to providing her Honour with the orders (which would not disclose the substance of that evidence) and any of the evidence itself (which would not be relevant).
The prosecutor told her Honour about the fact of these proceedings. The prosecutor said that representatives of the State were in court and either would or might seek a stay of the proceedings. Her Honour said something said like that she had heard what the prosecutor had said, but that was not relevant for her today.
Her Honour heard the appeal and pronounced orders, including orders quashing the sentence of imprisonment and imposing a sentence of a conditional release order for 12 months. That occurred a little after 12:30pm.
As soon as her Honour had pronounced those orders, counsel for the State stood up and gave her Honour a copy of Weinstein J's reasons and drew attention to order 5. His Honour’s orders included:
- The parties have liberty to approach the Duty Judge urgently to have the matter restored on one hour’s notice including out of regular business hours.
6. The parties are to notify the Duty Judge and my chambers of the outcome of the defendant’s severity appeal on 2 April 2026 as soon as practicable.
NOTES
I note the following:-
1. Order number 5 above is made against the possibility that the judge of the District Court of New South Wales hearing the defendant’s severity appeal tomorrow 2 April 2026 may foreshadow or may make orders allowing the appeal and sentencing the defendant to a period of imprisonment which has expired or may expire very soon. Should that circumstance eventuate, the statutory pre-requisite in s 27(a) would be established. It may be that the Judge hearing the severity appeal will stay his or her orders to allow the parties to approach the Duty Judge so that the application for orders pursuant to s 27 of the Act can be further pursued. I note that I have reached the provisional view that the Court’s discretion to make an interim supervision order should be exercised in favour of the State of New South Wales and that the supervision order should be subject to the conditions annexed as Schedule “A” to the Summons.
The State’s counsel then indicated that the State asked her Honour to stay her decision. Defendant's counsel opposed that, raising both the issue of power, including a contention that her Honour was functus officio, and a question of standing. The State’s counsel asked her Honour to exercise her inherent power to permit the State to approach this Court.
Her Honour made no ruling in relation to the stay, but her Honour said that her orders were unlikely to come onto JusticeLink for at least another hour. There was further discussion, the precise detail of which I do not have, but the upshot was that defendant's counsel gave an undertaking, first to the parties and then to the District Court, that they would not frustrate the application to this Court.
Her Honour did not say anything that expressly revoked, re-visited or varied the orders that she had pronounced, but she did say words to the effect or, “I can give you an hour or so”. The State sought more time and her Honour settled on 4:30pm. I infer her Honour indicated that the orders would not be entered until 4:30pm. A notation was added to the orders to the effect that they would not be entered on Justice Link until 4:30pm.
The precise course of events before her Honour looms large because this Court only has power to make an ISO if the defendant is an “eligible offender” and that is only if the offender is serving a sentence of imprisonment.
I observe at the outset that since the District Court has upheld the appeal, it follows that the District Court has held that the appropriate sentence to impose on the defendant is not, and was not, a sentence of imprisonment. I do not see that as decisive of the matter before me, but it highlights why this is not a matter of mere technicality. If her Honour's sentence had been imposed from the start, then the defendant would never have been an eligible offender.
The issues that arise for this court are:
first; whether in the ordinary course, when the District Court pronounces orders in open court, those orders are effective immediately or whether they are not effective until they are entered;
second, whether in the context of this case, her Honour's orders pronounced shortly after 12:30pm were not intended to be immediately effective or were re-visited or withdrawn. The only express power that was identified that her Honour had was under the slip rule; and
Third whether, if those two questions are answered favourably to the State, nevertheless s 27(a) can be satisfied, if it appears that the current custody or supervision will come to an end otherwise than by the effluxion of time. That third question turns on whether the word “expires” in s 27(a) should be understood in what I accept to be its ordinary sense meaning the effluxion of time.
12 Entry and recording of judgments, orders, sentences, directions or recommendations
Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on:
(a) the indictment in the proceedings,
(b) the appropriate court file, or
(c) the appropriate computer record,
and that entry shall, when signed by the Judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation.
The question whether, in the particular circumstances of this case, a different position arises has caused me considerable hesitation. It seems to me that the issue has to be analysed in two steps. The first is whether her Honour's orders were effective upon their pronouncement shortly after 12:30pm today. The second is whether, if they were, anything afterwards occurred which had the effect of withdrawing or postponing the time at which they take effect until 4:30pm or such time as they are entered.
As to the first question, her Honour did receive an indication, first from defendant's counsel and then from the prosecutor, that there were representatives of the State who would or might seek a stay. Nevertheless, in the absence of any words from her Honour to indicate that the orders were not effective immediately, I am unable to conclude that that provided sufficient context to conclude that, although her Honour pronounced the orders in the ordinary manner after hearing the appeal, nevertheless a person in the position of a party would understand that the orders were not intended to take effect until her Honour had dealt with the stay.
Next arises the question whether her Honour withdrew her orders or corrected them under the slip rule. Mr James said that her Honour had no power to withdraw or revisit the sentence. I am not persuaded that that is so. However, on the material before me I do not have evidence that enables me to conclude that her Honour did, in fact, withdraw or correct the order, under the slip rule or otherwise. An implication cannot confidently be drawn from what her Honour said, that her Honour did not regard the orders as taking effect until they were entered. In any event, that would not be sufficient in the absence of orders revisiting, revoking or staying the order she had pronounced.
That being the case, it seems to me the orders of the District Court have taken effect and, as a result, the defendant is not presently an eligible offender. As I have said, I do not reach that conclusion lightly.
I do note that, as I indicate above, I do not regard that outcome as a mere technicality. The upshot of her Honour's decision is that, in substance, the proper sentence for the index offence is not a sentence of imprisonment. Being subject to a sentence of imprisonment has always been, as a matter of substance, a necessary pre-condition for this Act.
I am unable to be satisfied that the defendant is an eligible offender and, accordingly, I am unable to be satisfied that I have the power to make the interim supervision order that is sought.
I dismiss the application for an interim supervision order.
**********
I address below the question whether, as at the time of these reasons and my decision, the District Court’s orders had already taken effect. I concluded delivering these reasons and made the orders of this Court at approximately 4.00pm on Thursday, 2 April 2026.
State of New South Wales
Benshabir