State of New South Wales v Ceissman

"New South Wales Terrorism Activity Offender"

1. The circumstances of the First Judgment were such that little or no attention was paid by the parties to the requirements of s 20(c) of the THRO Act. The structure of s 20 requires that each of paragraphs (a), (b), (c) and (d) be satisfied, before the Court is empowered to make an ESO.
2. In turn, paragraph 20(a) has alternative methods by which it may be satisfied. The first of those alternatives is that the defendant is serving a sentence of imprisonment for a New South Wales indictable offence. But the fact, if it were the fact, that a defendant is serving a sentence of imprisonment for a New South Wales indictable offence, is not, of itself, sufficient to satisfy the requirements of s 20 of the THRO Act.
3. The second alternative capable of satisfying s 20(a) of the THRO Act is that the defendant is under an existing ISO, ESO, Interim Detention Order (hereinafter "IDO") or Continuing Detention Order (hereinafter "CDO"). An amendment, not considered in these proceedings, was recently promulgated specifying that these alternative requirements are at the time of filing of application for an order only.
4. There is no issue before the Court that the application by the State of New South Wales has been made in accordance with the Part and, therefore, the requirement of s 20(b) of the THRO Act is not in issue. The parties have only cursorily raised with the Court the requirements of s 20(c) of the THRO Act.
5. As can be seen from the provisions of s 20 of the THRO Act, in order to make an ESO, the Court must be satisfied that the defendant is one of: a convicted New South Wales terrorist offender; a convicted New South Wales underlying terrorism offender; or a convicted New South Wales terrorism activity offender.
6. Each of the three aforementioned characteristics is a term defined by the THRO Act. The term "convicted New South Wales terrorist offender" is defined by s 8 of the THRO Act and is confined to a person who is serving, or has served, a sentence of imprisonment for an offence against s 310J of the Crimes Act 1900 (NSW). The defendant, in these proceedings, has not been charged with, or sentenced for, an offence against s 310J of the Crimes Act.
7. The term "convicted New South Wales underlying terrorism offender" is defined, by s 9 of the THRO Act, and requires that a defendant to an ESO order be a person who is serving (or, following imprisonment for such an offence, is supervised or detained by an ESO or CDO or an interim order of that kind) a sentence of imprisonment for a New South Wales indictable offence; the offence is a serious offence; and the offender's offence occurred "in a terrorism context". A "serious offence" is defined as is the term "terrorism context".
8. The term "terrorism context" requires that the offence upon which the State of New South Wales relies has been committed with an intention of advancing a political, religious or ideological cause and the intention of coercing, or influencing by intimidation, an Australian government or a foreign government or of intimidating the public or a section of the public. The relevant offence for which the defendant, in these proceedings, was convicted and sentenced was not a sentence (serious or otherwise) committed in a terrorism context.
9. The term "convicted New South Wales terrorism activity offender" is defined by s 10 of the THRO Act. To come within that section the defendant would need to have been an offender serving (or supervised following such imprisonment by an ISO) a sentence of imprisonment for a New South Wales indictable offence (or an IDO or CDO following such imprisonment) in circumstances where the defendant: has been subject to a control order, at any time; or has been a member of a terrorist organisation, at any time; or has made statements or engaged in other conduct involving advocating support for engaging in any terrorist act, or is associated or affiliated with other persons or with organisations advocating support for engaging in any terrorist acts.
10. In the current proceedings, the defendant was, at the time of the application, serving a sentence of imprisonment for a New South Wales indictable offence. After the defendant completed that sentence, the defendant was subject to an ISO, issued by the Court as presently constituted.
11. The defendant has not been the subject of a control order. Nor has the defendant, on the evidence before the Court, ever been a member of a terrorist organisation.
12. Therefore, in order for the Court to be satisfied that the defendant is a person who is capable of being the subject of an ESO, the Court would need to be satisfied, on the balance of probabilities, that the defendant has made statements or engaged in other conduct that involved advocating support for engaging in terrorist acts or is associated or otherwise affiliated with other persons or with organisations advocating such support.
13. As a consequence of that requirement, the issues of fact that arise in these proceedings, being, amongst other things, whether the Court accepts the evidence of Witness A given in these proceedings, are issues that affect not only whether the defendant poses an unacceptable risk, but also whether the defendant is a person of the class against whom an order under the THRO Act is permitted.

Unacceptable Risk

1. The terms of s 20D of the THRO Act requires that the Court be satisfied "to a high degree of probability" that the defendant poses an unacceptable risk of committing a serious terrorism offence, if the defendant were not under an order of the Court requiring his supervision. On the other hand, the provisions of s 21 of the THRO Act specify that the Court does not need to determine that the risk to which s 20 of the THRO Act refers is "more likely than not".
2. For present purposes, I will summarise the discussion of "unacceptable risk" in the First Judgment. The summary is not intended to supplant the analysis that otherwise derives from the reasons in the First Judgment.
3. The determination of an "unacceptable risk" involves consideration of a matrix of factors that include the probability that the risk will result and, secondly, the seriousness of the harm that will ensue if the risk were realised: see First Judgment, at [26] and following.
4. The unacceptable risk is the unacceptability of the risk of committing a serious terrorism offence and the harm, hazard or loss to which the "risk" refers is the harm, hazard or loss occasioned by the commission of a serious terrorism offence.
5. A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm. The unacceptability of risk balances the likelihood of "the risk" and the seriousness of the outcome of its realisation. Thus, as the seriousness of the harm which may eventuate increases, the required degree of likelihood of the risk manifesting required to overcome the threshold of "unacceptability" decreases.
6. The Court is required to evaluate that equation and to be satisfied to a high degree of probability that the defendant poses an unacceptable risk: State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. The onerousness of the order on the defendant, if the order be onerous, or the interference with the liberty of the individual, is not a factor that is to be considered in determining whether there is an unacceptable risk. .
7. The term "serious terrorism offence" is defined in s 4 of the THRO Act by reference to Pt 5.3 of the Criminal Code Act 1995 (Cth) (hereinafter "the Criminal Code"). It refers to an offence under the Criminal Code, Part 5.3, for which the maximum penalty is 7 years' imprisonment or more. The example used in the First Judgment referred to the provisions of s 101.1 of the Criminal Code and the circumstance that offences under that provision require the Court to have regard to the definition of a "terrorist act", which is contained in s 100.1 of the Criminal Code.
8. The previous reference to the irrelevance of the effect of an order on a defendant in determining whether a risk was unacceptable does not render the effect on a defendant irrelevant when the Court determines whether to make an order under s 25 of the THRO Act. As stated, s 25 grants the Court the power (and jurisdiction) to determine an application by making the order or by dismissing the application.
9. Whether the Court determines to make an ESO is a determination that involves, as a factor, the balance between the amelioration of the unacceptable risk, on the one hand, and the effect on the defendant. Nevertheless, as is prescribed, the safety of the community must be the paramount consideration: s 25(2) of the THRO Act.
10. Because the unacceptable risk is an unacceptable risk of the commission of a terrorist act, it is necessary for the Court to examine the definition of that term. While it was recited in the First Judgment, it is appropriate for the Court to reiterate that definition: "'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. … (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."
11. The foregoing definition is contained in s 100 of Pt 5.3 of the Criminal Code. As noted in the First Judgment, s 101.1 of the Criminal Code renders it an offence for a person to engage in a terrorist act. The maximum penalty for that offence is life imprisonment.
12. Because of the breadth of the definition of "terrorist act", which includes a threat of action with the intention of advancing a political, religious or ideological cause and with the intention of coercing or influencing by intimidation a government of Australia or a foreign government or intimidating the public or a section of the public, s 100.1 of the Criminal Code has potentially far-reaching effect. As the recited definition makes clear, there are exemptions which apply, amongst other things, to mere advocacy or industrial action that is not intended to cause serious harm (i.e. physical harm), including death, endangerment of life or the creation of serious risk to health and safety of the public.

Circumstantial Evidence and the Drawing of Inferences

1. The case presented by the State of New South Wales is, at least in part, circumstantial. Of itself, that is not unexpected. A person who is said to be capable of being classified as an unacceptable risk of serious terrorism offences is unlikely to admit to that fact, at least to those in authority.
2. As a consequence, it is necessary for the Court to draw inferences. The drawing of inferences is, as has been described, "plain commonsense": Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Southerland Shire Council [1979] 2 NSWLR 206; Fabre v Arenales (1992) 27 NSWLR 437. In Fabre v Arenales, the Court (Mahoney JA, with whom, relevantly, Priestley and Sheller JJA agreed) after citing and relying upon the judgments of Menzies J and Windeyer J in Jones v Dunkel (at 312, 320-321), said: "There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, 'plain commonsense'. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human experience would be contradicted if' Z did not exist': see the cases referred to in Jones v Sutherland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain common sense) will not be contradicted if the inference be drawn.": Fabre v Arenales at 455.F.
3. The drawing of inferences in both civil and criminal proceedings was explained by Sir Frederick Jordan CJ in Carr v Baker (1936) SR (NSW) 301 at 306-307. At 306, the learned Chief Justice said: "In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: …. In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact: …. It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture: …. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: … to such practical certainty as would justify a conviction in a criminal prosecution. … It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: …. This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established."
4. The drawing of inferences relies upon evidence that is accepted: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. Nevertheless, even where the criminal standard applies or, as here, proof must be to a "high degree of probability", not every fact is required to be proved to that standard or to any standard.
5. Thus, a number of facts, each of which may not, of itself, give rise to the drawing of any inference relating to the ultimate question, may, when taken together with other facts, give rise to an irrefragable inference. Thus, even when a fact, by itself, could not, and would not, give rise to an appropriate finding of terrorism activity, when it is coexistent with other facts, that inference may be necessary and may be required to be drawn, in some circumstances, even at the criminal standard. A significant portion of the material in this case is in that category. It is necessary to deal with the evidence.

Evidence

1. The State of New South Wales relies upon a report of Dr Rodger Shanahan who is currently a research fellow at the Lowy Institute, has a Doctorate in Arab and Islamic Studies from Sydney University (2003); a Master of Arts in Middle East & Central Asian Studies from the Australian National University (1998); a Master of Arts in International Relations, also from the Australian National University (1997); and a Bachelor of Arts (Hons) in Politics from Macquarie University (1994). Dr Shanahan was an Associate Professor at the National Security College at the Australian National University between 2014 and 2016; was formerly a Regular Army Officer on Operational Service with United Nations in Southern Lebanon and Syria, East Timor, Beirut and Afghanistan; was Director of the Land Warfare Studies Centre, Canberra; was the Defence Attaché of the Australian Embassy at Abu Dhabi (accredited also for Qatar and non-accredited Liaison Officer in respect to Lebanon); was before that the Assistant Defence Attaché in Riyadh and accredited for Bahrain, Kuwait, Jordan, Oman and non-accredited representative for Yemen. He is an expert in terrorism related matters.
2. Dr Shanahan's report dated 24 May 2018 was attached to his Affidavit affirmed 25 May 2018. Dr Shanahan was the subject of cross-examination at the ESO hearing.
3. Included as an annexure to the Affidavit was the Letter of Instruction from the State of New South Wales. The cross-examination did not undermine Dr Shanahan's expertise, nor his report. Dr Shanahan showed himself to be both reasonable and direct in his evidence and in his answers to questions.
4. Dr Shanahan reported on three particular photographs of Mr Ceissman displaying a one-fingered salute that were shown to him, in which the salute was a raised index finger of the right hand. Each photograph was of Mr Ceissman. Dr Shanahan commented: "The raised right index finger is a common symbol amongst Salafists and violent jihadists and has become particularly associated with Islamic State given the degree to which it is displayed by fighters on social media (references to which were given by the Doctor). In essence it is a sign of Tawhid, or the oneness of God that is announced at the start of the Shahada (affirmation of the Islamic faith) 'there is no God but God'."
5. Dr Shanahan commented that the affirmation by the raised right-hand index finger relates to "absolute monotheism", and that "it has become an integral part of Islamic State symbology to the extent that the group has largely commandeered it in the contemporary public space. The symbolism inherent in it provides an easily recognisable way of affirming commitment to Islamic State and its aims and ideology." Dr Shanahan describes some of the ideological commitment to violence against non-believers associated with the philosophy of Islamic State and the terrorist purposes of the organisation.
6. Further, Dr Shanahan comments: "Given the widely understood nature of the connection between the hand gesture and support for Islamic State, it is reasonable to conclude that the person making such a gesture supports the ideals of Islamic State."
7. Nevertheless, Dr Shanahan qualifies the opinion by the express statement that he is unaware of the circumstances in which the photographs were taken or by whom they were intended to be seen and, as a consequence, it is difficult to be certain that it was intended to promote and/or encourage terrorist acts.
8. Dr Shanahan also commented on the use of communications and encryption apps. It is unnecessary to repeat that description. Nor is it necessary to repeat the opinion expressed, which I accept, that encrypted communication applications are used by terrorist organisations, including Islamic state. Dr Shanahan referred to WhatsApp, Telegram and other messaging applications that are readily available.
9. Dr Shanahan was asked to comment on a fourth photograph that Mr Ceissman has depicted on his Facebook page, which portrays a flag, being a black flag with the Shahada written in Arabic upon it. Dr Shanahan translated the Shahada, to the extent necessary, as meaning "there is no one worthy of worship except Allah and Muhammad (peace be upon him) is his messenger".
10. The phrase is an affirmation of faith, which is considered to be one of the five pillars of Islam. It affirms the unity of God (Tawhid, see above) and declares that the Prophet Mohammed declared the third (and final) revelation and is God's messenger.
11. The phrase itself is a very common one within Islam and is used to decorate mosques. It is also featured on the national flag of Saudi Arabia, with the addition of a sword.
12. The Shahada, not surprisingly, has a connection to extremist Muslim ideologies, because it has featured in the iconography (if that is not an oxymoron in terms of the tenets of Islam) of the Jihadist terrorist groups such as Al-Qaeda, Jabhat Al Nusra. The Shahada (minus the expression "Jabhat al Nusra", which is found on its flag) was used in the siege at Lindt Café and by Numan Haider, who, in September 2014, was shot and killed in Melbourne by police after he attacked two police officers with a knife.
13. Asked about particular risk factors associated with Mr Ceissman, Dr Shanahan referred to his background; the maintenance of contact with one or other individuals who expressed extremist views; his lack of educational qualification; and the "weak gravity" associated with his family and Aboriginal community associations. As to the statements made by Mr Ceissman to the Muslim chaplain in prison, in which Mr Ceissman disavowed extremist views and expressed a deep dislike for extremist groups such as Islamic State, Dr Shanahan commented that these claims were "inconsistent with the photographs of him displaying the Islamic State one-fingered Tawhid sign on three different occasions and inconsistent with his association with another prisoner who was expressing extremist views and with the use of the Shahada flag in black.
14. The cross-examination of Dr Shanahan concentrated on the innocent use of each of the particular aspects upon which Dr Shanahan relied. Mr Ceissman adduced evidence of a right-hand index finger salute in different contexts, which were said to be innocent and unconnected with either Islamic State or extremist terrorist views. Those photographs included sportspeople who had scored or succeeded; Barack Obama, when in Africa; and other purportedly innocent circumstances. There can be little doubt that such a salute or use of the right index finger can be innocent.
15. Dr Shanahan accepted that the use of the right index finger "salute" could be used, depending upon the context, in a manner that was wholly innocent, but noted that he had never seen the use of that salute, while holding the Qur'an in the left-hand in front of the body in anything other than an extremist context. One of the photos depicted Mr Ceissman in that last-mentioned context.
16. The report of Dr Chelsey Dewson, Forensic Psychologist, of 3 May 2018 was one of the reports arising from the interlocutory orders made by the Court. Dr Dewson's report accurately describes Mr Ceissman as a then 23-year-old Aboriginal male who, at the time of examination was in prison attire.
17. Dr Dewson described Mr Ceissman as friendly, easily engaged and motivated to participate in the interview. He was "ostensibly forthcoming with information", but there were times when "his responses were unusual or inconsistent". The inconsistency may well have been explicable because, for example, one of the circumstances in which it occurred was in response to questioning as to whether he was or had been exposed to substance abuse by members of his immediate family.
18. Dr Dewson described Mr Ceissman's description of his childhood as "overly positive" and not providing "a comprehensive and authentic summary of his developmental experiences". In the experience of the Court, this is not unusual amongst the prison population, and even more so if the background includes either violence or drug and/or alcohol abuse or both.
19. Dr Dewson did not consider there was any evidence of overt psychopathology during the assessment. After listing the information provided and/or relied on, other than the examination itself, and summarising her credentials as a forensic psychologist and acknowledging the Uniform Civil Procedure Rules 2005 and the nature of expert witness code, Dr Dewson recited the circumstances of her commission, the orders of the Court and the criminal history of Mr Ceissman which, relevantly, goes over two and a bit pages of her report.
20. Dr Dewson summarises the "intelligence holdings" that are said to give rise to the current matters before the Court. It is unnecessary to recite that material as, to the extent that it is relevant, it is otherwise in evidence in the proceedings. Interestingly, Dr Dewson refers to Mr Ceissman's criminal history and the index offences as forming "part of a more pervasive and enduring pattern of anti-sociality". This comment, in my view, is an important aspect associated with the consideration of the matter, with which the Court will deal later in these reasons.
21. Further to the last mentioned comment, Dr Dewson reports the statement by Mr Ceissman that even though he hated punishment, he "used to enjoy crime. [He] liked the freedom [of not being bound by social rules] and the mateship that [he] got through [crime]". In my view, this confirms the earlier expressed and noted opinion.
22. The information provided by a parole officer and [REDACTED] were relied upon and discussed by Dr Dewson. While discussing these issues with Mr Ceissman, Mr Ceissman apparently denied ever having a motivation to travel to Syria and denied communicating such an intention to anyone.
23. At the time of the clinical examination and interview, Mr Ceissman had not been provided with the identity of the human source, but, it seems, may have had a strong inclination as to his identity. During the interview, Mr Ceissman suggested that a motivation on behalf of the human source was his [REDACTED].
24. He also suggested that the human source may have instigated a described threat of violence against him, because of Mr Ceissman's religious beliefs. As a consequence of learning of the alleged threat, Mr Ceissman produced "three shivs" to protect himself.
25. During the interview, Mr Ceissman also sought to explain his behaviour while bound by the conditions in the ISO. Part of the rationale was his growing anger at the conditions imposed upon him when he had already served his sentence.
26. During the interview, it seems, Mr Ceissman made statements inconsistent with earlier reported domestic abuse and violence that he had suffered during his youth and childhood. Mr Ceissman completed his School Certificate whilst in juvenile detention and did not complete his Higher School Certificate. On his own description, Mr Ceissman refused to do schoolwork. Mr Ceissman had a history of poly-substance abuse, and his abuse of drugs commenced at the age of 13.
27. Dr Dewson described the history and behaviour of Mr Ceissman as consistent with a diagnosis of ADHD - in remission, according to the DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders). Further, Dr Dewson suggests that he presents with the symptoms indicative of Antisocial Personality Disorder and Polysubstance Disorder, each according to DSM-5.
28. Dr Dewson's description of Mr Ceissman's peers and friendships deriving from the context of juvenile detention also reinforces the lack of appropriate social support that was available to Mr Ceissman during his youth and in later life. He maintains, according to the Forensic Psychologist, an antisocial peer network, which is not surprising. He described four friends, two of whom were co-offenders; another of whom he has known for 17 years; and the fourth is a person who is said to be an extremist with whom authorities have recently prohibited Mr Ceissman from associating, pursuant to the conditions in the ISO.
29. In relation to his religious beliefs, somewhat inconsistently, Mr Ceissman suggested that he obtained his religious "education" from a cellmate and he was most specifically interested in "what happens after death". Notwithstanding that interest, he was unable to describe (and said he could not remember) the things that were in the Qur'an concerning life after death. Nevertheless, he expressed the opinion that he "really believed" what the Qur'an taught about this.
30. Mr Ceissman moved cells to another that was shared by another Muslim inmate from whom he gained the desire to learn Arabic and to understand better the teachings of the Qur'an. Mr Ceissman was then transferred to Lithgow Correctional Centre where he was sharing a cell with Muhamad Boksmati, the person who is said to be an extremist and was, according to the ISO conditions and the directions of authorities associated therewith, prohibited from contact. Mr Ceissman described, in the interview, Mr Boksmati as one of the persons that he currently perceives to be one of the four "true friends". This comment and description is to be contrasted with the description given to Dr Adams, to whose report these reasons will refer.
31. Mr Ceissman did not believe that Mr Boksmati was a terrorist, as suggested by the authorities. During the course of the interview, Mr Ceissman noted that he had "awareness of people in custody that supported Islamic State in Iraq and Syria (ISIS) and believed that all of them were on drugs. He did acknowledge that Mr Boksmati was a former member or allegedly a member of Brothers for Life, but suggested that he wasn't "really a criminal".
32. Importantly, Mr Ceissman advised that he wished to extend his social network to form relationships with Muslims who are not involved in crime and conceded that, as at that stage, all of the Muslims that he knew were criminals.
33. On being asked as to his attitude to police and law enforcement authorities, Mr Ceissman expressed the opinion that he hated the police, although not enough to be violent. He then stated that he didn't hate the police but he does not care what the police want, that he would do as he wanted.
34. The report of Dr Dewson records the comment that, in her opinion, this reflected his lack of respect for law enforcement and the law more generally. He described, in that context, the actions of the perpetrator of the attack at the Lindt Café as one that was done only for attention and that he was not "a terrorist". He did not think the attack was done for Allah.
35. During the interview, Mr Ceissman also doubted that the attack on the NSW Police Force Headquarters at Parramatta in October 2015 was done "in the name of Islam" and expressed the view that Allah says: "don't kill women and children; it's not beneficial to Islam". These comments are recorded in the report. The opinion of Dr Dewson was that the "statements potentially suggest [he] has downplayed the role that extremist beliefs have had in these incidents and/or has a confused understanding of Islam".
36. Some of the matters discussed by Mr Ceissman during his interview with Dr Dewson evidenced either inconsistency in thought or an attempt to dissemble. His understanding of what, if anything, he would learn in Saudi Arabia and his desire to live there, compared with that which he expressed as his desire, namely, to live in accordance with a particular mode of behaviour, including the consumption of alcohol, showed either ignorance of the place of alcohol within Islam or a confused and inconsistent set of desires, generally consistent with internal contradiction and/or dissembling.
37. Similarly, Mr Ceissman expressed the views that he had never had contact with an Imam, notwithstanding official documents to the contrary. This shows that the likelihood is that Mr Ceissman was deliberately falsifying his attitude and/or history. It is inconceivable, in the circumstances of his dealings with Islamic clerics, that he would have forgotten such contact.
38. Dr Dewson, in assessing risk, draws, appropriately, the difference in the assessment of certain behaviour based upon past behaviour of a like kind, compared with an assessment of future conduct based upon statements or assessments of risk that have not been, hitherto, the subject of offending. Utilising historical risk assessments, unrelated to terrorism issues, Dr Dewson recited the risk assessment performed by Corrective Services, which assessed his level of risk for violent reoffending as "high".
39. Further, utilising the "Violence Extremism Risk Assessment - Version 2 Revised (VERA - 2R)" his risk of "violent extremism" was rated as in the "low-medium range". The risk factors identified as relevant were: that a target for an attack had been identified by Mr Ceissman; personal contact with violent extremists; planning; preparation of violent acts; susceptibility to influence, control or indoctrination; previous criminal history; and violent incidents. General reoffending was assessed, in relation to Mr Ceissman, as in the high-risk range.
40. Risk assessments for violent extremism are in the developmental stage or, as described by Dr Dewson, "in their infancy". This is further complicated by the fact that Mr Ceissman has not been convicted of terrorist or terrorism-related offences. Dr Dewson, because of those issues, sets out factors in a table at [79] of her report based upon her review of literature pertaining to violent extremism.
41. In so doing, Dr Dewson looked at the background factors including: exposure to violence and attitude supportive of violence; prior military training or travel for training or fighting; and glorification and attitude supporting violence. Another factor was contact with extremists and/or a history of accessing extremist material, in which Dr Dewson examined: direct contact with extremists; accessing extremist material; and personal and/or community grievances with political decisions or actions of the country.
42. A further factor relating to attitudes and beliefs included an assessment based upon the following issues: holding ideological beliefs that justify violence; perception of injustice; the dehumanisation of those perceived to be the cause of the injustice; rejection of social values/perception of social isolation, including feelings of social disconnection, isolation and detachment from greater society; the need to feel part of a group and/or problems with identity; internalised martyrdom and willingness to die for a cause; low empathy; and negative emotionality. It is unnecessary to repeat each of the comments of Dr Dewson on each of those factors. It is sufficient to refer to the report and the comments therein.
43. Dr Dewson acknowledges that an analysis of the foregoing factors does not comprise a formal risk assessment according to any well-established instrument with respect to terrorist violence. Notwithstanding that acknowledgement, examining the risk factors, Dr Dewson expresses the opinion that Mr Ceissman's index and historical offending behaviour appears to have been related to a number of factors including: substance abuse; antisocial attitude; antisocial peer associations; entitlement and poor consequential thinking; an impoverished moral sense or conscience; and disregard for rules or the rights of others.
44. Some of the foregoing are related to the Antisocial Personality Disorder to which Dr Dewson earlier referred and which reference is recited earlier in these reasons. Dr Dewson takes the view that the highest risk in relation to Mr Ceissman is his susceptibility to being influenced by others in the future.
45. Ultimately, Dr Dewson while acknowledging that Mr Ceissman denied any beliefs in, or commitment to support, terrorist activities, remarks that Mr Ceissman has lived a generally antisocial lifestyle and presents with a number of risk factors relating to violent extremism, particularly relating to the trajectory of his beliefs and behaviours, rather than his current presentation.
46. Further, Dr Dewson comments on the example of shooting police and civilians as posing some risk in relation to Mr Ceissman's future conduct. However, while there are difficulties in attaching a precise label, Dr Dewson expresses the opinion that the risk of committing a serious terrorism offence "does not appear to be high risk". That assessment does not account for the trajectory of his behaviour, as mentioned earlier in the comments on the report.
47. Any risk of an overt terrorism offence is not, in the opinion of Dr Dewson, imminent. That risk it is affected significantly by the association with non-extremist Muslims, rather than association with persons in a radical trajectory. Dr Dewson takes the view that Mr Ceissman's antisocial difficulties are more relevant to his risk than is his index offence or his history of criminal conduct.
48. Lastly, Dr Dewson considers that the risk of terrorist activity, even though not imminent, can be managed in the community with interventions that might assist Mr Ceissman to form healthy religious beliefs and make prosocial peer connections. In that regard, Dr Dewson expresses the opinion that the conditions in the ISO made on 13 April 2018 appear appropriate and that intervention is required to assist in ensuring he does not continue to an antisocial trajectory and become a greater risk of terrorist activity.
49. Dr Dewson expresses the opinion that an appropriate period for an ESO would be three years with reducing restrictions in the conditions over the period of time in response to positive progress.
50. The next report which the Court needs to discuss is that of Dr Jonathon Adams, Forensic Psychiatrist, of 24 May 2018. Again, Dr Adams was requested to prepare a report as a consequence of the orders made on an interlocutory basis in the course of the Court imposing an ISO.
51. It is unnecessary to repeat that which is related to the acknowledgement of the UCPR and the role of experts. Nor is it necessary to repeat the history given to Dr Adams by Mr Ceissman, at least to the extent that it is in a similar vein to the history given to Dr Dewson.
52. The history given to Dr Adams included the proposition that at least since the age of about 13, Mr Ceissman has basically been incarcerated. The history recounted that his associates and social contacts from an early juvenile age were associations in custody.
53. In the course of the interview with Dr Adams, Mr Ceissman expressed views that were deprecating of, and inconsistent with, support for terrorist violence, including the proposition that it was inconsistent with Islam, "you could not support it", and that they were killing children, which was unsupportable. Nevertheless, he described Islamic attitude to being against killing other Muslims and that, therefore, ISIS, Al-Qaeda and the Taliban were not acting consistently with Islam.
54. Again, Mr Ceissman described the reference by a member of the staff of Corrective Services to a statement about travelling to Syria as being a mistake by the Corrective Services Officer. Accepting that mention was made of the possibility of travelling to Saudi Arabia, Mr Ceissman denied that any mention of Syria was made. Further, Mr Ceissman repeated that the relationship between him and [REDACTED], who, he believed, had made a report concerning his extremist views, arose out of religious disagreements and arguments.
55. As for Mr Boksmati, Mr Ceissman described their relationship as one in which they had "remained acquaintances", which is in stark contradistinction to the description given to Dr Dewson. He said that Mr Boksmati had taught him sufficient Arabic to allow him to pray.
56. Dr Adams expressed the view that there are reasonable grounds to conclude that Mr Ceissman "manifests a history of problems with violence, other antisocial behaviour, relationships, employment, substance use, personality disorder, violent attitudes, and treatment or supervision response". Dr Adams expressed the view that it is reasonable to conclude that Mr Ceissman manifests the clinical risk factor of violent ideation or intent.
57. As to the assessment of the likelihood of persons with histories or characteristics similar to those of Mr Ceissman committing a serious terrorism offence, Dr Adams uses a different testing mechanism and different testing standard to that utilised by Dr Dewson. Dr Adams noted that, during the three interviews that he conducted, Mr Ceissman engaged readily, was forthcoming and was willing to discuss all aspects of his history.
58. Mr Ceissman had a good understanding of the nexus between his use of illicit substances and association with antisocial acquaintances and the offending behaviour associated with his index offences. He accepted the legal wrongfulness of his past offending, identified as "criminal", and acknowledged his long-lasting antisocial proclivities.
59. Based upon Mr Ceissman's statements, Dr Adams made it clear that Mr Ceissman did not identify with or support engaging/participating in terrorism activities.
60. While there is some uncertainty, Dr Adams seems to confirm that Mr Ceissman manifests symptoms consistent with an Antisocial Personality Disorder.
61. Based upon Mr Ceissman's expressions of opinion, Dr Adams took the view that Mr Ceissman manifested a minimal loading of risk factors that are associated with lone-actor terrorism and did not identify or support terrorism activities or groups involved in such behaviour. In considering the Assessment Report of Corrective Services as assessing Mr Ceissman in the "low-medium range" in terms of a "risk profile for extremist violent offending", Dr Adams discussed the explanations given by Mr Ceissman and noted that they were inconsistent with certain collateral information.
62. Dr Adams' view was that the collateral information did not appear to associate Mr Ceissman definitively with a specific extremist/radicalised/terrorist group and that, therefore, on balance, in Dr Adams' opinion, "it cannot be concluded that Mr Ceissman currently poses a significant risk of committing a serious terrorism offence".
63. In answer to a question relating to the risk factors of any potential future offending by Mr Ceissman, Dr Adams referred to his antisocial personality disorder and behaviour associated therewith and the need for the encouragement of prosocial relationships.
64. Lastly, in terms of expert material not available to the Court at the time that the ISO issued, reference should be made to the report of Corrective Services being a Supplementary Risk Assessment Report completed on 24 June 2018. Again, this report completed by forensic psychologists in the employ of Corrective Services acknowledges the expert code of conduct in the UCPR and outlines the sources of information from which the material has been derived. The material in the Supplementary Report deals with some aspects of the conduct of Mr Ceissman during the time that he was in the community and bound by the terms of the ISO issued by the Court.
65. The Supplementary Report refers to the previous Risk Assessment Report by Corrective Services to which reference was made by Doctors Dewson and Adams. That earlier report assessed Mr Ceissman to be in the "high risk" category of violent reoffending and the "moderate risk" category of general reoffending and that there is no indication that would warrant alteration in these assessed levels of risk.
66. However, in relation to the initial information and the report based thereon, the Supplementary Report takes the view that the overall risk profile for extremist violent offending by Mr Ceissman should be reconsidered and assessed as being in the "moderate risk" range, requiring ongoing monitoring.
67. The Supplementary Report recites that Mr Ceissman had been in the community less than five days before breaching the ISO. The report refers to the consistency in the breach behaviours with Mr Ceissman's anti-sociality and anti-authoritarian attitudes. It assesses the nature of the breaches, or more accurately, the conduct associated with the breaches, as consistent with behaviours of concern that are associated with Mr Ceissman's risk of terrorism activity.
68. It is unnecessary to recite or summarise the reasoning process by which the two psychologists came to the view that the risk of extremist violent offending was to be assessed as moderate. Some of that reasoning will be exposed in the consideration of the issues by the Court later in these Reasons for Judgment.
69. Lastly, it is necessary to deal with the evidence of the statements by Mr Ceissman. In the first category are the statements by Mr Ceissman to an Officer of Corrective Services. The Corrective Services Officer reported that Mr Ceissman expressed a desire to travel to Syria. Mr Ceissman maintains that was a misunderstanding and/or mistake by the Officer.
70. There is no apparent reason why the Officer would mistake that which was said by Mr Ceissman. On the other hand, there is good reason, given the circumstances now faced by Mr Ceissman, for Mr Ceissman to deny any such statement.
71. It is, of course, possible that the Officer of Corrective Services was mistaken or did misunderstand Mr Ceissman's expressed desire to travel overseas for training. Nevertheless, and whatever uncertainty may exist now in the mind of the Corrective Services Officer, it is likely that his or her initial impression and recollection of the statement is the accurate one.
72. Next, there is the evidence of Witness A. Witness A is a prisoner. He is currently serving an extended period of incarceration for violent offences and has admitted to further violent offences for which, it is likely, a further substantial sentence will be imposed. Given the age of Witness A, it is likely that he will spend the remainder of his life in prison.
73. Witness A, in oral evidence, maintained that he has not sought, and is not seeking, any credit, in relation to his sentences, for the information provided in relation to Mr Ceissman. There is no evidence to the contrary. Nevertheless, the evidence of a prisoner must be the subject of the most stringent warnings as to reliability, pursuant to the terms of s 165 of the Evidence Act 1995 (NSW).
74. Even though there may be no credit in relation to the time to be served by Witness A, there may be subtle and/or less obvious benefits that are gained by the perception that he has assisted law enforcement agencies and is a cooperative prisoner. In relation to a person who is to spend a very substantial period, and possibly the remainder of his life, in prison, those subtle and less obvious advantages may be most significant.
75. Having said that, despite a thorough and extensive cross-examination on behalf of Mr Ceissman, the Court accepts, largely, the evidence of Witness A. It may well be that the statements made by Mr Ceissman were made at a time when his religious beliefs were less mature than is currently the situation. But I accept that the statements were made.
76. The other evidence tends to corroborate or render more likely the making of such statements. Reference has already been made to the right-hand index finger salute usually associated with extremist Jihadist views.
77. Further, particular reference has already been made to the photograph of Mr Ceissman making that right-hand index finger salute whilst holding the Qur'an in his left hand in front of his chest. There can be little doubt that this was a salute that was related to Islam and not a gesture by a sporting personality or the like.
78. Further again, that last mentioned pose has, in the experience of Dr Shanahan, plainly an expert in the area, never been seen otherwise than associated with extremist Jihadist views.
79. Rendering it more likely again, there is the allegedly misunderstood statements to the Officer of Corrective Services; the friendship with Mr Boksmati about which Mr Ceissman was prepared to dissemble; the photographs of Mr Ceissman with his face covered in a seemingly extremist supporting pose, and other such depictions.
80. Mr Ceissman used a pseudonym for certain social media contacts. He has used, in the meantime, encrypted devices and applications on his communication devices and deleted the history of communications, seemingly deliberately, to disentitle authorities from examining the communications.
81. The foregoing is not an assessment of each of the pieces of evidence independently. Rather, it is a combination of activities, which supports the likelihood that the extremist views were expressed. The demeanour and evidence of Witness A, despite the warnings that I take into account, rendered that evidence believable.

Consideration and Conclusion

1. As is obvious from the foregoing, I accept the evidence of Witness A. His evidence-in-chief was a statement available to the Court during the proceedings that led to the making of the ISO. His evidence was described in the First Judgment.
2. As earlier stated, notwithstanding the warnings that the Court takes into account in relation to evidence from a person in the circumstances of Witness A, the Court accepts his evidence of the statements. The cross-examination, as earlier stated, was thorough and competent.
3. In part, the cross-examination focused on two objective facts: first, a failure to report the extremist statements of Abdul Rahman; and, secondly, the motivation for fabricating the evidence.
4. The failure to report Abdul Rahman led, ultimately, to an issue that enhanced the credibility of Witness A, in that Abdul Rahman was reported by Witness A in relation to his extremist statements approximately one year earlier. The cross-examination on motivation concentrated on two issues: an animus between the witness and Mr Ceissman; and the advantage that may be obtained by the witness as a consequence of the evidence that had been given.
5. The evidence of Witness A denied any attitude between Witness A and Mr Ceissman. In statements to Dr Dewson and Dr Adams, to which reference has already been made, Mr Ceissman denied having made the comments attributed to him by Witness A. He also denied expressing a desire to travel to Syria to an Officer of Corrective Services. He also described an animosity between him and Witness A over religious beliefs.
6. Mr Ceissman's denial is not on oath. However, I take it into account in attributing to him a denial of the statement and in determining the reliability and/or credit of Witness A. Similarly, I take into account Mr Ceissman's denial in relation to the comments of the Corrective Services Officer.
7. While Mr Ceissman was in prison he used, contrary to the regulations, social media and the Internet. He did so under a pseudonym. Of itself, the use of the pseudonym is unremarkable, because, as stated, use of such media was prohibited in prison. The pseudonym that he used was Ali Abdullah. The last name in the pseudonym means, simply, the servant of Allah and the use of the particular pseudonym also means very little, when taken by itself.
8. However, there are other circumstances. When issues arose as to the Lindt Café, Mr Ceissman led a response relating to support for Muslim inmates at the prison particularly in relation to any reaction or statement relating to the siege incident at Martin Place in the Lindt Café. Further, Mr Ceissman acknowledges that conduct.
9. The conversation with Witness A was to the effect that Mr Ceissman was planning an attack on Marrickville Police Station. Mention was made of the use of explosives and the beheading of a police officer, coupled with a shooting of as many police as possible during the attack.
10. Further, the conversation to which Witness A attested related to subsequent conduct of Mr Ceissman, should Mr Ceissman survive the attack on the Police Station. That subsequent conduct was an attack on Bankstown Shopping Centre.
11. The conversation referred to Mr Ceissman travelling to the Middle East, which travel would be paid by other Muslim inmates, where Mr Ceissman would learn how to fight, return to Sydney and carry out the attack to which earlier reference has been made.
12. During his incarceration, Mr Ceissman made and continued contact with Mr Boksmati. Mr Boksmati was a member of Brothers for Life and is considered to be a religious extremist with terrorist connections.
13. As stated, it is Mr Boksmati about whom Mr Ceissman gave inconsistent accounts as to the level of his relationship. To Dr Adams, he referred to Mr Mohammed Boksmati as a person who had assisted him when he was set upon in Lithgow Correctional Centre and had since "remained acquaintances". That was during the interviews that led to the report of 24 May 2018.
14. To the Forensic Psychologist, Dr Chelsey Dewson, Mr Ceissman described Mr Boksmati as one of four persons whom he considered true friends and was, at the time of the interview, his only Muslim peer in the community and outside gaol. The alteration in his description from 27 April 2018, when interviewed by Dr Dewson, until 30 April 2018, 4 May 2018 and 10 May 2018, when he was interviewed and assessed by Dr Adams is of concern.
15. Dr Adams has assessed Mr Ceissman as not posing a significant threat of violent extremist conduct or terrorism offences. The Assessment of Dr Dewson has been recited above.
16. I turn then to the objective evidence. As already stated, there is objective evidence, being photographs, taken at different times, in which Mr Ceissman is giving a salute (the right-hand index finger pointing upwards) often associated with ISIS and other extremist groups. I accept that such an action is not always associated with violent extremism and, even when associated with Islam, is not necessarily associated with violent extremist Jihadists.
17. However, the salute is not portrayed in isolation. First, it is a photograph or photographs posted by Mr Ceissman during his imprisonment. Secondly, it includes a photograph in which the pose is Mr Ceissman standing upright, saluting by pointing his right index finger upwards and holding the Qur'an in front of his chest with his left hand. The evidence is clear and unambiguous that Dr Shanahan, an expert in this area, has never seen that pose other than in its use associated with extremist groups who advocate terrorism.
18. Further photographs were posted including photographs of Mr Ceissman with his face covered by a scarf. Of itself that may mean very little, given that they were posted while Mr Ceissman was incarcerated and use of social media was prohibited during that period. Nevertheless, it was unnecessary to post any photograph or to post a photograph that included Mr Ceissman's head or his face.
19. Added to those factors is the support for "Muslim Brothers", as described by Mr Ceissman, in circumstances where they were defiantly applauding the Lindt Café siege.
20. Mr Ceissman's mobile phone contained photographs of Mr Ceissman in various poses ordinarily associated with extremist terror groups; a photograph of the Shahada; and photographs of Mr Ceissman with others, one or more of whom is also giving the index finger salute to which reference has already been made.
21. As already stated, Mr Ceissman breached the ISO imposed by the Court within a few days of his release from prison. One of the factors, which led to charges being preferred, was the use of communications equipment and the Internet in a manner not approved by Corrective Services and in contravention of the conditions imposed under the ISO.
22. The data messaging application Skype and WhatsApp had recently been installed on Mr Ceissman's phone and, while there were limited SMS messages stored on the device, there were indications from which it can be inferred that messages had been recently deleted. There are surveillance photographs of Mr Ceissman using an unauthorised communication device. WhatsApp had been used for communication overseas to Pakistan, although some at least of that communication seems to be related to an attempt to learn the Qur'an and learn sufficient Arabic to be able to read the Qur'an.
23. Mr Ceissman, used Google Maps to find the location of the Police Academy in Goulburn, Goulburn Correctional Centre and Silverwater Correctional Complex. There is no explanation for the desire of Mr Ceissman to obtain those locations.
24. Further, most of the WhatsApp messages had been deleted. WhatsApp is a communications application which is encrypted during the course of the communication itself.
25. The conduct of Mr Ceissman during his incarceration at Lithgow and elsewhere, together with his conduct in relation to his communications from his and his mother's phones; the photos and their association with extremist ideology; his contact with Mr Boksmati, about which he misled Dr Adams; and his behaviour on release are all factors, when taken together, that render the conversation with Witness A far more likely than would have been the case were that conversation an isolated incident.
26. There are countervailing aspects. As already stated in the First Judgment, Mr Ceissman has a relationship (or had a relationship) with the Muslim chaplain in gaol. That relationship has not continued (and is probably incapable of being continued) in the community.
27. There are difficulties that point particularly to a high risk of extremist violence. Those factors include that, in the conversation with Witness A, Mr Ceissman identified a specific target, being Marrickville Police Station, and even described how there would be a distraction utilised and then he would attack police officers.
28. Further, his expression of a desire to die as a martyr and be treated in heaven in the manner described, as he understood it, for Islamic martyrs; the contemplation by him that he would die during the attack on Marrickville Police Station; and, if he did not die, that he would then attack Bankstown Shopping Centre, all show a planned and conceived terrorist act.
29. The defendant is extremely susceptible, on all of the psychiatric and psychological reports, to the influence or indoctrination of others and his only Muslim contacts seem to be in the nature of extremist elements.
30. Further, Mr Ceissman showed deceptive conduct in the deletion of his SMS and WhatsApp messages seemingly to thwart supervision by authorities. It is necessary to deal with the Supplementary Report of Corrective Services that examined his conduct on release.
31. There are statements in which Mr Ceissman refused to provide the information as to the manner in which he obtained photographs that were being inspected by police. There are further statements in which Mr Ceissman made clear that there was no way that the police could stop him from engaging in conduct in contravention of the ISO.
32. Moreover, Mr Ceissman, as earlier stated, was seen in possession of a telephone that was not his, including when in the public arena. As earlier stated, before the Court is a report, dated 24 June 2018, being the Supplementary Risk Assessment Report conducted by Corrective Services. It is the only report to take into account the post-release conduct of Mr Ceissman. It has been referred to earlier.
33. The authors of that report, Ms Prince and Ms Matsuo, each of whom is a Clinical Psychologist, utilise the same rating system that was used by Dr Dewson. The report refers to the right-hand index finger salute, frequently aligned with the Islamic State and the fact that the salute was depicted in photographs taken over what seemed to be a significant period of time. That notation accords with the Court's observation, earlier expressed.
34. The report addresses the fact that Mr Ceissman shared these photographs on his public Facebook profile under his pseudonym after his release and during his brief period in the community.
35. The report also refers to Mr Ceissman's use of Facebook to communicate with Mr Mohammed in Pakistan to learn the Arabic reading of the Qur'an. The photo, requested by Mr Mohammed, that was sent to him by Mr Ceissman was a photo of Mr Ceissman utilising the right-hand index finger salute. There was agreement between them, communicated through Facebook, that they would communicate using WhatsApp and that Mr Ceissman would download it forthwith.
36. Notwithstanding that communication, Mr Ceissman denied having used Facebook; having email access; and having downloaded or used WhatsApp. He had actively deleted his Internet use history and SMS history. The report also refers to Mr Ceissman's evasiveness and dishonesty in answering questions to police during a search of his residence and electronic devices.
37. It is unnecessary to repeat the entirety or even large extracts of the Supplementary Report. However, the Psychologists expressed the opinion that on the basis of the information then available, Mr Ceissman's previous risk profile for violent extremist behaviour should be elevated to the moderate range. Particular attention is paid by the authors of the report to the limited (or nil) access to known non-extremist Muslim mentors and Mr Ceissman's stated desire to further his knowledge of Islam, which, given the absence of non-extremist mentors, makes his movement to a more extreme position highly probable.
38. Interestingly, and consistent with certain comments made by the Court earlier in these Reasons, the Supplementary Report makes specific mention of Mr Ceissman's susceptibility and the requirement to have him given support and mentoring in embracing his Islamic beliefs in a way that promotes a pluralistic lifestyle as an Australian Aboriginal Muslim man.
39. In the absence of prosocial mentoring by, and inclusion within a prosocial network of, Muslim associates and teachers, Mr Ceissman, in my view, poses an unacceptable risk of the commission of a terrorist act.
40. This brings the Court to the dilemma. Social psychologists have studied individuals who have been the subject of social exclusion: see State of NSW v Hill (No 5) [2013] NSWSC 140 at [17]; R v Lewis [2014] NSWSC 1127 at [39]-[42]; Kentwell v R (No 2) [2015] NSWCCA 96 at [13], [89]-[93] and [100]; and Rothman J, 'Equal Justice, Mandatory Sentencing and the Rule of Law' (speech delivered at the Legal Aid Commission Conference, 2 July 2014) , pp 16-19. The conduct of Mr Ceissman is indicative of social exclusion.
41. Mr Ceissman's initial conversion, and adoption of Islam and other Islamic inmates, shows a clear desire to be included and supported by a group. Dr Shanahan, in answer to questions posed by the Court, expressed the opinion that extremist Islam is extraordinarily empowering and inclusive of those who adopt the philosophy and band with other extremists.
42. The whole process of the imposition of an ISO or an ESO on a person in that category may exacerbate, rather than ameliorate, the radicalisation of such a person. That is the fear in relation to Mr Ceissman.
43. Certainly some of his conduct, as a result of the imposition of the ISO, tends to suggest the reality of that fear. In the absence of a prosocial, inclusive environment in which Mr Ceissman (and others like him) are included in a group that is not extremist and empowered in their religious beliefs in a way that the vast majority of adherents to Islam in Australia conduct themselves, there is little hope that the imposition of an ISO or an ESO will overcome the threat risk.
44. Little attention has been paid, in the proceedings before the Court, to the positive aspects of any programs that are to be undertaken or suggested. Without them, the whole process envisaged by the THRO Act may be counter-productive.
45. Nevertheless, the Court is required to assess this defendant, Mr Ceissman, in accordance with the THRO Act and to determine whether there is an unacceptable risk and whether the defendant, Mr Ceissman, poses that risk to a highly probable extent.
46. While the assessment that is accepted by the Court is that Mr Ceissman poses only a moderate risk of extremist violence, the nature of the violence that has been described by Mr Ceissman and has been described in the evidence before the Court is such that, if the risk were to manifest, many people would likely die as a result. In those circumstances, the risk is unacceptable.
47. Further, notwithstanding the comments made immediately above as to the necessity to have Mr Ceissman engage in prosocial, inclusive behaviour with teachers and Muslims who believe in a "normative" Islam, the requirements of the THRO Act have been satisfied and, in the exercise of the discretion of the Court, an ESO should issue binding Mr Ceissman to conditions.
48. Little attention has been paid to the nature of the conditions to be imposed and no one has suggested a condition relating to positive associations. For the foregoing reasons, I issued the orders binding Mr Ceissman to an ESO and the conditions described in the schedule thereto and I have allowed the parties liberty to approach the Court on the nature of those conditions, presumably, after they have had an opportunity to study these reasons and to discuss amongst themselves those matters that may be in issue.
49. Some of the more invasive conditions may be capable of amelioration by a better use of technology. For example, WhatsApp and other messaging and email programmes are capable of being "backed up" on the Cloud, or other database systems
50. It does not seem beyond current capacity for the authorities to require use of devices in which all communications are immediately stored on a database, including iCloud, to which only the authorities have access. This could then replace more invasive methods of access to communication devices.
51. There may be other means available that reduce the degree of invasiveness or the onerous nature of the conditions in the ESO. I have not heard the parties on such matters. Nor have I heard them on particular difficulties associated with the conditions. Those matters may be dealt with under the leave reserved provision.
52. The foregoing Reasons are the reasons for the issue of the ESO binding on Mr Ceissman.

181022 - Judgment Attachment - State of New South Wales v Ceissman (No 2) [2018] NSWSC 1237 (230 KB, pdf)

Amendments 22 October 2018 - Judgment Attachment 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: 22 October 2018