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[2026] NSWSC 348
Supreme Court of NSW
2026-04-10
Weinstein 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 (Preliminary) [2026] NSWSC 348
Hearing dates: 1 April 2026
Date of orders: 1 April 2026
Decision date: 10 April 2026
Jurisdiction: Common Law
Before: Weinstein J
Decision: 1. An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act):
(a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court by 27 May 2026 and;
(b) directing the defendant to attend those examinations.
2. The application for an interim supervision order and the relief sought in prayers 2 and 3 of the Summons filed on 30 March 2026 is refused.
3. An order restricting access to the Court’s file in the proceeding such that access would be permitted to a non-party only with the leave of a Judge of this Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
4. The matter is listed for directions before Yehia J on Thursday 9 April 2026.
5. 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.
Catchwords: HIGH RISK OFFENDERS – Interim supervision orders – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – where Court unable to be satisfied that the defendant’s term of imprisonment “will” expire before the proceedings are determined – application for interim supervision order refused
Legislation Cited: Crimes Act 1900 (NSW) s 93
Criminal Code Act 1995 (Cth) s 474.45C
Terrorism (High Risk Offenders) Act 2017 (NSW) ss 7, 10, 23, 24, 25, 27
Cases Cited: Comino v Kremetis [2023] NSWSC 32
Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201
Mustac v Medical Board of Western Australia [2007] WASCA 128
Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263
State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589
State of New South Wales v Daiman Nixon (also known as Damien Nixon) [2025] NSWSC 363
State of New South Wales v Elzamtur [2019] NSWSC 186
State of New South Wales v Farhat [2026] NSWSC 19
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Naaman (No 2) [2018] NSWSC 1329
State of New South Wales v Sturgeon [2019] NSWSC 559
State of New South Wales v Yaqoob Benshabir (Interlocutory) [2026] NSWSC 321
Category: Procedural rulings
Parties: State of New South Wales (Plaintiff)
Yaqoob Benshabir (Defendant)
Representation: Counsel:
C Melis (Plaintiff)
K Agar (Solicitor) (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Crimcorp Defence Lawyers (Defendant)
File Number(s): 2026/00129370
Publication restriction: Nil
By way of Summons filed on 30 March 2026, the State of New South Wales seeks an extended supervision order (ESO) for a period of 12 months against Yaqoob Benshabir pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). Proposed conditions of the ESO are set out in a schedule to the Summons.
The matter came before me on an urgent basis as a preliminary hearing on 1 April 2026 when the plaintiff sought orders, inter alia, appointing two qualified psychiatrists or psychologists to conduct examinations of the defendant and to provide reports to the Court pursuant to s 24(5) of the Act and for an interim supervision order (ISO) pursuant to s 27 of the Act. The proposed conditions for the ISO were the same as those proposed for the ESO.
Ms Melis of counsel appeared for the plaintiff and Mr Agar, solicitor, appeared for the defendant.
On 1 April 2026, after hearing the matter, I gave short reasons and made orders as follows:-
On 30 March 2026, a Summons was filed by the State of New South Wales seeking orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act) against the defendant Yaqoob Benshabir. The matter is urgent, because tomorrow, on 2 April 2026, the defendant has an appeal against the severity of a sentence imposed upon him by Judge Halburd in the Local Court of New South Wales on 12 February 2026. The effect of that sentence is that the defendant was sentenced to a term of imprisonment for 10 months with a non-parole period of 5 months. His sentence was backdated to commence on 25 September 2025. The defendant’s non-parole period expired on 24 February 2026 and the balance of his term is to expire on 24 July 2026. On 24 February 2026, the defendant’s statutory parole was revoked. A review of his parole is listed for 14 April 2026.
If the defendant’s appeal is successful, it is possible that he will receive a sentence so that he would no longer be an eligible person pursuant to s 7 of the Act; ie he will not be serving (or be continuing to be supervised or detained under the Act after serving) a sentence of imprisonment for a NSW indictable offence.
The defendant neither consents to nor opposes the orders sought in the Summons.
It is not possible to provide full reasons this afternoon, but I record in brief terms the relevant conclusions to which I have come and the fundamental findings that I make as follows:-
The Summons, application for an extended supervision order and accompanying documentation are made in accordance with the statutory time limit, are in proper form and otherwise comply with the formal requirements of the Act;
Mr Benshabir is an “eligible offender” as defined in s 7 of the Act;
Mr Benshabir is a “convicted New South Wales terrorism activity offender” pursuant to s 10 of the Act;
The preliminary hearing was heard within 28 days after the filing of the application in accordance with s 24(4) of the Act;
I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 24(5) of the Act; and
It does not appear to me that the offender’s custody “will” expire before the proceedings are determined: s 27(a) of the Act.
The last of these conclusions, which I will further explain in the context of the terms of the statute when I publish my full reasons, means that I cannot make the interim supervision order sought by the plaintiff pursuant to s 27 of the Act.
The first five of those findings mean that I must make orders appointing two experts to prepare reports and directing Mr Benshabir to attend those examinations.
I make the following orders:
(1) An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act):
(a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court by 27 May 2026 and;
(b) directing the defendant to attend those examinations.
(2) The application for an interim supervision order and the relief sought in prayers 2 and 3 of the Summons filed on 30 March 2026 is refused.
(3) An order restricting access to the Court’s file in the proceeding such that access would be permitted to a non-party only with the leave of a Judge of this Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
(4) The matter is listed for directions before Yehia J on Thursday 9 April 2026.
(5) 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.
I note the following:-
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 on 2 April 2026 may foreshadow or 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 defendant is 20 years of age. At the date of the preliminary hearing he was serving a sentence of 10 months imprisonment with a non-parole period of 5 months, for an offence of affray contrary to s 93 of the Crimes Act 1900 (NSW) imposed upon him by Judge Halburd in the Local Court of New South Wales on 12 February 2026 (the index offence). His sentence was backdated to commence on 25 September 2025. The defendant’s non-parole period expired on 24 February 2026 and the balance of his term is to expire on 24 July 2026. On 24 February 2026, the defendant’s statutory parole was revoked. A review of his parole is listed for 14 April 2026.
The defendant lodged an appeal against the severity of his sentence which was listed for hearing at the Downing Centre on 2 April 2026. Against the possibility that the severity appeal might result in the defendant’s imminent release, the plaintiff sought urgent orders pursuant sections 24(5) and 27 of the Act, which are noted above.
The following evidence was relied on by the plaintiff:-
An affidavit of Vincenzo Camporeale affirmed on 30 March 2026, together with exhibit V-C1;
An affidavit of Detective Sergeant Michael Wright affirmed on 27 March 2026, together with exhibit MW-1; and
An affidavit of Detective Sergeant Michael Wright affirmed on 31 March 2026, together with exhibit MW-2.
The defendant relied on no evidence.
There was no dispute that the application and conduct of the preliminary hearing complied with the formal requirements of the Act. The Summons was filed while the defendant was serving a sentence for a NSW indictable offence and the application was not made until the last 12 months of the offender’s current custody: ss 23(1) and (2). That also is not in dispute. The Summons was supported by the affidavits noted above which contained documents responsive to the matters set out in s 25(3) of the Act, including a risk assessment report of Katrina Czerkies dated 27 March 2026 which addresses the likelihood of the defendant committing a serious terrorism offence: s 23(3) of the Act, likewise not in dispute.
The Summons was served on the defendant within two business days of it being filed, and the documents and reports on which the plaintiff relied were disclosed to Mr Benshabir and his lawyers: ss 24(1) and (2) of the Act. The preliminary hearing was held within 28 days of the filing of the application. These matters are also not contentious.
Before experts are appointed or an ISO is made, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. Section 20 of the Act provides that the Court must be 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. Section 3 of the Act states that its primary object is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. That same section acknowledges that another object of the Act is to encourage such offenders to undertake rehabilitation. In determining whether or not to make an ESO, s 25(2) of the Act requires the safety of the community to be the paramount consideration of the Supreme Court.
The determination at the preliminary stage is made “to a lower standard than applies to the making of an extended supervision order”: State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 (“Naaman”) at [17]. It is not for the Court to weigh up the documentation, resolve any conflicts, inconsistencies or uncertainties, to predict the ultimate result or to consider what evidence the defendant might call at the final hearing: State of New South Wales v Sturgeon [2019] NSWSC 559 at [7]. Rather, the Court looks at the allegations and documentation through the lens of the plaintiff’s case and takes them at their highest when deciding whether the test articulated in section 27(b) of the Act has been made good in all of the circumstances of the case: Naaman at [48].
The Supreme Court may make an ESO if, inter alia, it is satisfied to 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: s 20(d) of the Act. Risk avoidance is the focus of the enquiry at the preliminary stage: State of N**ew S**outh W**ales v Barez (Preliminary) [2019] NSWSC 1589 at [35]. Determining what is an unacceptable risk includes a consideration of the type and nature of the offences that may be committed, even if the likelihood of an offence being committed is low: State of New South Wales v Kamm (Final) [2016] NSWSC 1; State of New South Wales v Daiman Nixon (also known as Damien Nixon) [2025] NSWSC 363.
Section 24(5) of the Act sets out the test applicable to the appointment of experts:-
(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders—
(a) appointing—
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the eligible offender to attend those examinations.
The order under s 24(5) is mandatory if the matters alleged in the supporting documents, would, if proved, justify the making of an ESO.
Section 27, which is in different terms, provides:-
27 Interim supervision order
The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court—
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
(3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—
(a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender’s participation in any such examination,
(b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence,
(d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community,
(e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community,
(f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives,
(g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,
(h) the likelihood that the offender will comply with the obligations of an extended supervision order,
(i) without limiting paragraph (h), the level of the offender’s compliance with any obligations to which the offender is or has been subject while—
(i) on release on parole, or
(ii) subject to a control order, or
(iii) subject to an earlier extended supervision order or interim supervision order, or
(iv) subject to any other order of a court,
(j) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities,
(m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.
I will set out in detail some of the material relied upon by the plaintiff on this application. I take this evidence at its highest, as I am required to do on a preliminary application.
The index offence occurred at about 4.45 am on 10 February 2024 and involved the defendant (then aged 18) and 5 other young males. They approached two men who were seated on a bench kissing near Wynyard Walk tunnel. While standing in front of the victims, the defendant raised his right hand and arm towards a pedestrian footbridge. A member of his group yelled out “faggots” and “why are you gay?”. As the victims stood up and walked toward the pedestrian footbridge, the defendant and another member of his group ran after them. The defendant approached one of the victims from behind and punched him to the right side of his face. The other victim was pushed by the defendant’s co-offender. Both victims turned to face the defendant and his co-offender and walked backwards to get away. The defendant then used his right hand to punch one of the victims, which connected with the left side of his head. The defendant punched that same victim to the head two more times. The victims then ran away towards nearby escalators and were chased by the defendant and his co-offender. The incident was recorded on the mobile phone of one of the defendant’s co-offenders.
The defendant was arrested on 13 February 2025. He pleaded guilty on the day of his hearing and was sentenced in the Local Court on 12 February 2026. In his sentencing remarks, Judge Halburd observed that the defendant had targeted the victims because they were homosexual.
The defendant was to be released on parole on 24 February 2026. On that day, the State Parole Authority, at a private meeting, determined that the defendant was a terrorism related offender and revoked the defendant’s statutory parole order. The State Parole Authority also determined that the defendant posed a “serious identifiable risk to the safety of the community”. A review hearing in relation to the parole revocation is listed before the State Parole Authority on 14 April 2026. I note in the defendant’s favour, that in custody he has expressed regret at his involvement in the index offence, and reports that he does not judge another person on the basis of sexual orientation.
The defendant (at least until 1 April 2026) was facing a further charge of “possessing or controlling violent extremist material obtained or accessed using a carriage service” contrary to s 474.45C of the Criminal Code Act 1995 (Cth). I was told from the bar table on 1 April 2026 that the charge had just been withdrawn. However, the circumstances leading up to that offending remain relevant.
At 4.00 am on 25 September 2025, Australian Federal Police executed a search warrant at premises at Yagoona. The owner of those premises is Mostafa Sharrouf, the defendant’s uncle, aged about 43. Upon entry into those premises, officers located the defendant sleeping. The defendant stated that he was staying with his uncle and was about to leave for work. He was thus found to be in breach of his bail conditions, being residential and curfew conditions.
Police located an iPhone 12 Pro Max in a black case in the room where the defendant was sleeping. The defendant confirmed that the phone was his and he provided police with PIN number access to it. An examination of the device disclosed three videos in the offender’s Snapchat account:-
A cinematic video of multiple armed masked soldiers holding firearms and Islamic State flags. Several men were kneeling with their backs to the soldiers, before the soldiers executed the men kneeling by shooting them. The video contained footage with a nasheed (a musical form of Arabic poetry popular with jihadist groups) playing in the background;
An Islamic State A-Hayat Media video of Islamic State soldiers holding a head, likely after being beheaded. The video contains war footage including males handling large artillery and firearms, with explosions as sound effects and nasheeds playing throughout; and
An Islamic State A-Hayat Media video of Islamic State soldiers holding up their index fingers to the sky (a recognised association with Islamic State) with the Islamic State flag in the background. The video contains a male tapping a knife on a head that was likely beheaded. The video includes further beheadings, Islamic State soldiers holding up the heads of dead men, footage of people dragging dead bodies, buildings on fire, and mass crowds running in distress. There is a nasheed playing in the background throughout the video.
Police also located images stored in the device in a “recently deleted” folder. Depicted in the images is Khaled Sharrouf, a well-known Australian jihadist (and the defendant’s mother’s brother, to which see below) who in 2013 travelled to Syrian territory to fight in the Syrian civil war on the side of Islamic State. The images depict the Islamic State flag.
A Cellebrite extraction of the defendant’s phone uncovered distressing photographs, including photos of the defendant with his index finger pointing to the sky and photos of the Islamic State flag, violent videos concerning the ongoing conflict between Israel and Hamas (which I put to one side because they may be, without more, political in nature), jihadist videos, Islamic State videos with footage of an armed man shooting bodies on the ground, videos of the defendant performing an ISIS salute, an Islamic State video of a beheading, an Islamic State video of Islamic State soldiers holding up the heads of dead men, war footage of people dragging dead bodies and chats with a person or persons on several applications, including Telegram, expressing some allegiance to the Islamic State and exchanging what is described as distressing extremist material. The plaintiff submitted that the material located on the phone includes statements advocating support for terrorist acts or violent extremism based on the content of the images and therefore satisfies s 10(1)(c)(i) of the Act. I leave this submission to one side as, without a close inspection of the material, I cannot be so satisfied. However, at a final hearing a judge might well find otherwise and draw the requisite inference. In light of my conclusion immediately below, it matters not one way or the other.
The defendant has associations with several people who are said to advocate support for violent extremism, which I am satisfied brings him within the definition of a “convicted NSW terrorism activity offender” in s 10(1)(c)(ii) of the Act. I provide this non-exhaustive summary which I view as a whole rather than in fragments.
Mr Benshabir has close links to a young person who has been arrested and charged with committing a terrorist act, other terror related offences and an offence of causing grievous bodily harm with intent to murder. Images of this person have been identified on the defendant’s phone. He also has links to a young person who was a co-offender in the index offending who has been charged with terrorism related offences. Yet another co-offender in the index offending has been deemed unfit to hold a firearm because of his affiliation with extreme Islamic ideology and his association with young persons charged with terrorist related offending. Perhaps most significantly, the defendant’s uncles Khaled (now deceased) and Arken Sharrouf are apparently well-known Islamic extremists. Police material suggests that the defendant has a long history of affinity with the Islamic State – dating from his childhood – and there is an inference available from material on a police database that he has long held radicalised views, perhaps passed on through his family. All of these matters, including the chats on Telegram noted above, allow me to infer that the defendant has, or has previously had, personal affiliations with a person or persons that were or are advocating support for a terrorist act or violent extremism: s 10(1)(c)(ii) of the Act.
A Risk Assessment Report (RAR) was prepared by Katrina Czerkies, forensic psychologist, and is dated 27 March 2026. The defendant was not interviewed by Ms Czerkies for the purposes of the RAR and the report was completed on the papers.
Ms Czerkies assessed the defendant as presenting a moderate to high risk of engaging in terrorism behaviors or a serious terrorism offence, noting that the risk is presently contained due to his incarceration. She observed that the defendant’s index offence “appears to have been motivated by his religious beliefs”, and that his (then) outstanding court matter is relevant to the content of her report. She noted that the defendant appears to be part of a family of well-known religious extremists and it is “therefore likely that he was raised in a familial environment where he may have been exposed to violence-promoting militant ideology from a young age”.
Ms Czerkies noted that Mr Benshabir’s education was difficult, marked by social, academic and behavioral difficulties. It was within the school environment that the first indications of radicalisation to an extremist religious ideology were first observed in 2017. There was thereafter a decline in school attendance and his behaviours toward others changed.
During 2024 and 2025, in Ms Czerkies’ opinion, there were further behavioral indications of radicalisation, including engagement with negative peer associations who supported and espoused extremist religious ideology justifying the use of violence, the possession of extremist propaganda and participation in activities that may have provided him with outlets to express his extremist religious ideology and develop a self concept that was primarily based around his peer network and his extremist religious ideology.
Whilst it was not known whether the defendant has continued to exhibit behavioral indicators of radicalisation since he has been in custody, Ms Czerkies believes that there is no evidence to suggest that he has rejected violence as a means to achieve ideological goals and no information to suggest that he has support from the community or his family for non-violence.
Ms Czerkies identified four risk scenarios (limited to the risk of committing a serious terrorism offence) with respect to Mr Benshabir, for the purpose of assisting in the identification of high-risk situations and to develop appropriate monitoring, intervention and risk mitigation strategies:-
Repeat of the index offence*:* In Ms Czerkies’ opinion, a repeat of the index offence is likely to occur if there are no observable changes to the offender’s risk profile. He would continue to have a commitment to an extremist ideology, and continue to endorse grievances that reflect that ideology. In such a scenario, the offender would likely continue to associate with likeminded persons and engage in behaviours directed at individuals or groups. He would be motivated by perceived religious and/or moral obligations against others who either hold different beliefs or who engage in behaviours antithetical to his own beliefs;
An escalation of the index offence: In Ms Czerkies’ opinion, an escalation is likely to occur against the background of an increase in the defendant’s risk profile. There might be an observable change in his expressions or emotions in response to perceived grievances or injustices, an increase in his rejection of democratic society and its values, the development of hostility towards Australia, or evidence of planning and preparation for terrorism related behaviours or terrorist acts which might include the identification of a specific target, possibly with the use of weapons. An act of religiously motivated terrorism is most likely to occur in a group situation and involve serious physical violence. As in (1) above, any such behaviour is likely to be motivated by perceived religious and/or moral obligations against others who either hold different beliefs or who engage in behaviours antithetical to his own beliefs;
Becoming a member of a terrorist organisation*;* training involving a terrorist organisation*; possessing things connected with terrorist acts; receiving training connected with terrorist acts*: In Ms Czerkies’ opinion, these risk profiles are likely to occur against the background of no change, and perhaps an escalation of Mr Benshabir’s risk profile. She observes that his current time in custody may contribute to the strengthening of his extremist religious beliefs and his willingness to engage in terrorism related behaviours or acts, perpetuate his existing grievances and possibly expand his contact with others who support or are involved in terrorism. She believes that he might acquire further training in extremist ideology and connect with those who might assist him in engaging in terrorism related activities;
Improvement in risk profile: In Ms Czerkies’ opinion, this would involve the defendant maintaining his extremist religious ideology but rejecting violence as a means to achieve religious goals. He might seek support to increase his knowledge of his religion through pro-social means as well as engaging in well-being, criminogenic or offence-specific programmes. He may also seek to increase his protective factors by establishing pro-social peer and community based supports and developing plans to support his rehabilitation and reintegration into the mainstream community.
With respect to the likelihood of those four risk scenarios materialising, Ms Czerkies is of the view that Mr Benshabir may well continue to demonstrate cognitive and behavioural radicalisation by associating with others who support terrorism. However, she believes it is unlikely that he would engage in an act of terrorism whilst in custody. The restricted nature of custody also means that it is less likely that he will be able to engage in terrorism related behaviors such as access to or possession of violent extremist materials.
Bearing in mind the definition of “serious terrorism offence” in the Act, Ms Czerkies hypothesises that on the information available to her, it is possible that the defendant will engage in an action that endangers a person’s life or causes serious harm or death, with an intention to advance his religious cause, intimidate the public or coerce the government.
In Ms Cserkies’ opinion, if an ESO is considered by the Court to be the most appropriate post-sentence option, Mr Benshabir would benefit from a joint multiagency and multidisciplinary case management approach to rehabilitation and reintegration, including combined enforcement and case management by the NSW High Risk Terrorist Offender Unit and the Corrective Services NSW Terrorism High Risk Offender Unit. She recommends that Mr Benshabir be afforded the opportunity to participate in an assessment with a government Countering Violent Extremism (CVE) specific service or an appropriately qualified practitioner with experience conducting terrorism assessments. Such an approach would assess the presence or absence of both CVE specific and non-CVE specific risks and needs, and identify appropriate interventions to support disengagement and desistance. Engagement is voluntary and would require the defendant’s consent. If the defendant did not consent, either his supervising Community Corrections Officer/Enforcement Officer or a Corrective Services CVE Service and Programme Officer could provide opportunities for him to engage in motivational interventions and refer him to wellbeing programmes which would assist in Mr Benshabir’s rehabilitation.
Ms Czerkies’ opinion that the defendant has a moderate to high risk of engaging in terrorism behaviours or a serious terrorism offence, contained as it was due to his incarceration, greatly influences the finding which I will make.
So far as the argument with respect to s 27(a) is concerned, having read the plaintiff’s material and submissions which were provided to me late on 30 March 2026 or early on 31 March 2026, I invited the parties to provide me with submissions addressing s 27(a) of the Act and the decision of Hamill J in State of New South Wales v Farhat [2026] NSWSC 19 (“Farhat”). Late on 31 March 2026, my chambers received supplementary written submissions from Ms Melis.
In those supplementary written submissions, Ms Melis submitted that it “would appear” to the Court that the defendant’s current custody or supervision “will” expire before the proceedings are determined on the basis that:
(a) As the defendant’s sentence is due to expire on 24 July 2026 (in approximately four months), the present application is distinguishable from Farhat, where a period of about nine months remained between the commencement of the proceedings and the expiry of Mr Farhat’s sentence; and
(b) The proper construction of s 27(a) and the overriding objects of the Act would support the making of an ISO in circumstances where uncertainty attends the expiry of the defendant’s current sentence and the plaintiff would lose jurisdiction to seek any relief under the Act if the defendant were released forthwith on appeal to the District Court of New South Wales.
I did not understand that the submission set out a paragraph 45(a) above was seriously pressed in circumstances where the Court has ample time to determine an ESO, if necessary.
In Farhat, the plaintiff sought interim relief in the form of an ISO for a period of 28 days commencing from 6 October 2026 (the date on which Mr Farhat’s sentence was due to expire) or, alternatively, from the expiry date of any sentence of imprisonment imposed by the District Court of New South Wales following a severity appeal listed on 29 January 2026. The matter was heard on 28 January 2026. The issue in Farhat was whether the Court could be satisfied that it appeared that the defendant’s current custody will expire before the proceedings are determined, on the basis that a possible outcome of the severity appeal was that the Judge of the District Court would allow the appeal and make orders allowing for Mr Farhat’s immediate or imminent release. Hamill J was not satisfied that it appeared that Mr Farhat’s current custody or supervision will expire before the proceedings are determined. He considered that the Court could not be satisfied that Mr Farhat’s release was inevitable or certain, and he therefore refused to make an ISO.
Farhat is materially indistinguishable from the present case. Here the issue is whether the Court can be satisfied that it appears that Mr Benshabir’s current custody will expire before the proceedings are determined, on the basis that the District Court might allow the appeal and make orders for his immediate or imminent release. Ms Melis made submissions akin to those made before Hamill J.
In Farhat, Hamill J said at [47]-[58]:-
“The State’s position was that there was a District Court severity appeal listed for hearing on 30 January 2026 and one possible outcome was that the Judge would allow the appeal and make orders allowing for Mr Farhat’s immediate or imminent release. That possibility was said to establish that it would appear to the Court that his current custody “will” expire before the Court could determine the plaintiff’s summons. I was not persuaded by the submissions made in support of that proposition.
After an extended lunch hour, Senior Counsel made the following argument:
“In addition, we are seeking some interim relief and that brings into operation section 27. Section 27, if I can draw your attention to the wording of it, your Honour:
‘The Supreme Court may make an order for interim supervision if in the proceedings for an Extended Supervision Order it appears to the Court that the offender’s current custody or supervision will expire before the proceedings are determined.’
Your Honour, we would emphasise first the use of the word ‘appears’. The legislature has not recorded that the Court must be satisfied or the Court must find, rather it appears to the Court that the current custody will expire before the proceedings are determined. You have evidence before your Honour that there is a severity appeal tomorrow to be heard. One of the possible outcomes of that appeal is that the District Court either sets aside or varies the current sentence and one possibility is that the defendant would be released forthwith. In our submission, the fact of an appeal
HIS HONOUR: So, ‘will’ in subparagraph (a) means ‘may possibly’?
MCDONALD: What you have to link it back to is that it appears to the Court and in respect of appearing to the Court where you have noticed that there is an appeal on foot and that could be one result that satisfies section 27.”
Reference was then made to a decision of N Adams J (as the Chief Judge at Common Law then was) in State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076. Emphasis was placed on passages at [13], [144]-[145] and [151]. Those passages concern the proper exercise of the discretion to make an interim order in the peculiar circumstances that arose in that case. They do not illuminate, or even touch upon, the meaning of the words “appears to the Court – that the offender’s current custody or supervision will expire”. State of New South Wales v Holt was not a case about the relevant statutory pre-requisites for the making of the order.
While the phrase “if it appears to the Court” may give rise to some greater flexibility than, for example, language such as “if it is established” or “if it is proved”, I am unable to accept that the use of that phrase can change the meaning of the word “will” in this statutory context.
The primary object of the Act in s 3 is important, but the proper application of that object cannot change the plain meaning of the statute. The circumstances in the case of Attorney General for New South Wales v Haines (BHT Barbara Ramjan) [2025] NSWCA 231 were very different. In that case, Kirk JA decided at [31]-[40] that certain time limits under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) could be applied with flexibility by reference to the objects of that Act and purpose of the orders under contemplation. The Full Court (Adamson, McHugh and Ball JJA) held that the approach taken by Kirk JA was “open on the wording of the Act and is consistent with its purpose”: Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) [2025] NSWCA 248 at [63]. The reasoning and construction adopted in that case cannot be applied in the present circumstances.
In two cases arising under s 22B of the Bail Act 2013 (NSW), the Court of Criminal Appeal considered the meaning of the expression “will be sentenced to imprisonment to be served by full-time detention”: Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 (“DPP v Van Gestel”) and Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173 (“DPP v Day”). In DPP v Van Gestel, Gleeson JA concluded at [44]:
“… the use of the word ‘will’ in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that ‘will’ involves a state of absolute certainty.”
The other judges agreed with his Honour and the same reasoning was applied in the case of DPP v Day at [23].
I applied those cases, and that interpretation of the word “will”, in the context of making orders in a special hearing into a criminal defendant’s fitness to be tried. It was necessary to decide whether the man “will become fit” within the ensuing twelve-month period: Mental Health and Cognitive Impairment Forensic Provisions Act, s 47(1)(b) and 48(1); R v Woodham [2022] NSWSC 1154 at [21]-[23]. I also referred to the decision of Beech-Jones J in R v Risi [2021] NSWSC 769 where his Honour said at [55] that the use of the word “will” in that provision meant that the relevant finding “should only be made if there is a real certainty as to the accused’s lack of fitness during the relevant 12-month period.”
These decisions give effect to the ordinary meaning of the word “will”; it is a word that alludes to inevitable or certain future events. Even giving full effect to the objects of the Act and allowing for some flexibility arising from the expression “appears to the Court” in s 27, the statute requires more than a mere possibility of an eligible offender being released and contemplates something closer to a realistic inevitability.
For those reasons I was not satisfied that the statutory requirement in s 27(a) was not established and refused to make an interim supervision order.
Observation as to possible amendment to s 27(a)
It seems likely that the circumstances that arose in this case were not contemplated by the legislature in settling on the terms of s 27(a). There may be a lacuna or glitch in the statute.
A simple amendment to the provision – whereby the word “will” is replaced by the word “may” – would rectify the apparent glitch in the legislation. That amendment would ensure the Court has the power to make an interim supervision order in circumstances such as the present where there is a contingency (like an appeal against sentence or an application for parole) that means there is no realistic inevitability that a sentence or period of supervision will expire before the Court determines the application.”
“Section 27, which I referred to at the commencement of these reasons, imposes two conditions for making an Interim Supervision Order. The first is that the offender's current custody or supervision will expire before the proceedings are finally determined. That condition is satisfied, in this case, because the defendant is currently in custody serving out the balance of term in respect of a conviction for a serious indictable offence. He had been released to parole, but that parole was revoked in November last year, with effect from the previous July, when he was arrested and charged with further serious offences.
The effect of the orders of the Parole Authority is that the term has been extended to expire in May of this year. However, there is a Parole Authority hearing tomorrow, I am informed, at which time the authority is likely to make a decision, one way or the other, about whether he should be released once more to parole.
In considering the first condition, it is germane to point out that there is evidence before me that, in January of this year, I granted conditional bail in respect of the new charges laid in November and, although the conditions I imposed are yet to be satisfied, I am informed by Mr McGorey that he is instructed that they can be satisfied if the Parole Authority releases the defendant to parole.
He will remain, if released to parole, under the supervision of the Parole Authority until May. I am uncertain whether his current custody will expire if he is re-granted parole before these proceedings are determined. Although I understand that dates for the final hearing of this matter have been tentatively fixed for 23 April 2019. But that may depend, in part, upon what happens tomorrow. Accordingly, it seems to me at least likely, at this interlocutory stage, that his supervision on parole may expire before these proceedings are finally determined. So, I am satisfied that first condition is satisfied.”
Ms Melis submitted that Campbell J can be understood as saying that the requirement in s 27(a) can be satisfied on the basis of it appearing to the Court that it is likely, at the interlocutory stage, that the current custody or supervision may expire before the proceedings are determined. In Elzmatur, Campbell J clearly did not have the benefit of any argument about the meaning of s 27(a) of the Act. The passages above demonstrate only that his Honour was giving effect to orders which were consented to by the parties (and which were contained in Short Minutes of Order), and I do not believe that his Honour should be taken to have found that “likely” is synonymous with “will” in the context of s 27(a) of the Act. In my opinion, Elzmatur does not assist the plaintiff given the extensive consideration given to the section in the context of the Act by Hamill J, with which I entirely agree.
I observe that a judge of this Court should follow an earlier decision of another judge unless he or she is of the view that it is plainly wrong: see Comino v Kremetis [2023] NSWSC 32 at [61]-[62] per Chen J, citing Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52]; Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]; see also La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201 at 204 (Burchett J). Indeed, there are no compelling reasons not to follow Farhat, which is the only decision of this Court where careful and thoughtful consideration has been given to the meaning of s 27(a). In my opinion, “will” should be given its ordinary meaning, that is, what is realistically inevitable as distinct from what may happen or is likely to happen. I say no more than that which has been elegantly expressed by the Court in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [44] and Hamill J in Farhat. Given that I do not consider Farhat to be plainly wrong, as I consider it to be correct, I am comfortably satisfied that I should follow the decision of Hamill J.
While I am satisfied as to the second condition in s 27(b), namely that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (and that the order be subject to the conditions annexed as Schedule “A” to the Summons), I am not satisfied that Mr Benshabir‘s current custody or supervision will expire before the proceedings are determined, given the unpredictability of the District Court severity appeal on 1 April 2026 (s 27(a)).
I observe that Parliament can simply amend s 27(a) of the Act, so that “will” becomes “may”. In the present circumstances, I would have been satisfied that Mr Benshabir’s current custody or supervision “may” expire before the proceedings are determined.
I therefore made the orders set out in paragraph [4] above.
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Minor amendment to pargaraph formatting at [45].
State of New South Wales
Benshabir
(2003) 133 FCR 190
(2022) 109 NSWLR 136