State of New South Wales v Dickson

Supreme Court of NSW|2020-02-14|Before: Ierace J

Solicitors: Office of the Crown Solicitor (Plaintiff) Mark Davis Legal (Defendant) File Number(s): 2019/305145

Judgment

HIS HONOUR: The State of New South Wales ("the plaintiff") commenced proceedings by summons filed on 30 September 2019 against the defendant, George Dickson ("the defendant"), seeking interim and final orders pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act").

The background to the plaintiff's application

In the preliminary judgment, I reviewed the material concerning the defendant's background, the index offences and his conduct following his release on parole in respect of the index offences. A summary of that material is as follows.
The defendant is an Indigenous man, presently aged 43, who was born in South Australia, where he has spent most of his life. He has a criminal history in Queensland from his early adult years, for break and enter, stealing, possessing drug utensils and drug possession. There is also a conviction for possessing a weapon without a licence, but for reasons explained in the preliminary judgment, it is not possible to determine whether the weapon was a firearm. The most serious sentence he received was a 12 month suspended prison sentence. The last criminal conviction, in that phase of his life, was when he was aged 22, in about 1999.
There was a 17 year gap before the defendant next offended, which was in South Australia in 2015. In May 2015, he came before the Adelaide Magistrates Court for minor behavioural offences on public transport. On 3 November 2016, he was convicted and fined $150 for possessing cannabis and equipment for using or preparing cannabis, the offences having been committed on 9 September 2015. At the hearing, the defendant represented himself and submitted that he was entitled to use cannabis.
The plaintiff contends that, thereafter, the defendant mounted a campaign involving sending letters, emails and the like to individuals and agencies of authority, and putting up posters in public places, in which threats of violence were made, in furtherance of the political cause of legalising the use of illegal drugs ("the offending material"). The ostensible context of the threats was that the state had mounted a "war" against its citizens who used illegal drugs and, as in any war, lawful force was justifiable in self-defence. One of the early manifestations of this campaign was in the form of a letter purporting to be from the defendant to the South Australian Attorney General's Department, in which he refused to pay the fine imposed for the drug offences committed on 9 September 2015. This letter was received around 15 December 2016. The plaintiff alluded to harm possibly befalling any officer who attempted to arrest him for the non-payment: "In the unpleasant situation that a police officer were to be harmed while enacting their violent activities I would consider myself to be acting under self defence and have already made arrangements for such a situation to be heard in a military court."
Other targets included, by email sent on 16 August 2017, the then NSW Minister for Police and the Minister for Emergency Services, the Honourable Troy Grant MP: "The people of the island of Australia have reserved the right to take up arms in defense (sic) against your violence. Please note, your crimes of violence are against the law and all necessary force will be used in response."
On 11 December 2017, the defendant allegedly sent a letter to the South Australian police, stating in part: "You are now aware that you act at your own risk when you initiate violence against drug users, your decisions are your own from here and you can suffer the consequences of your actions if you choose to continue your criminal violence. If your armed forces are injured or killed in this drug war no criminal jurisdiction will be accepted upon members of the public and we will be demanding military process."
In January and February 2018, the defendant allegedly put up posters on council poles, which included the following text: "The laws of your enemy do not apply in wartime, all war is without law and local law is no longer relevant during war. You are not their subject, this is a drug war and you are their enemy. Parliament have forced a drug war upon you and are armed with lethal force in their attacks upon you, fight back against that war with any level of force you require. Police are well aware of the military nature of their attacks so do not hesitate in your actions. They have made themselves your enemy in a violent civil war, there is no shame in fighting back against their criminal attacks."
In January 2018, CCTV in South Australia captured a male adult resembling the defendant walking past a police vehicle, which was later discovered to have a poster in similar terms placed on its windscreen, and the added sentence: "If they are harmed in their attacks that is the consequence of their violence and there will be one less of them to harm your fellow Australians".
In March 2018, the defendant sent emails to South Australian authorities expressing support for Domenic Perre, who was arrested the month before and charged with murder and attempted murder, arising from the bombing of the Adelaide office of the National Crime Authority in 1994. An email included this passage: "If Mr Perre chooses to accept we authorise him to refuse criminal charges and take full responsibility for his military actions in this matter of civil war, including the death of Sergeant Bowen and any other collateral damage he may have caused. Domenic Perre is a hero to our cause and we encourage him to consider it his duty to cause as much harm to enemy forces as he is able while held prisoner of war." Police note there is no suggestion that Mr Perre has any knowledge of, or association with, the defendant.
In the hearing of this matter, counsel for the defendant informed the Court that his client neither concedes nor disputes that he authored the letters and emails that purported to come from him, and the text of the posters that he is alleged to have placed in various places. Having regard to the defendant's unchallenged reported admissions to psychologist Chelsey Dewson (see [48] below), the email accounts from which emails were sent, the information on the face of the emails and letters as to who authored them, and the consistency of content between the posters and material purportedly sent by the defendant, I find that he was the author of the offending material.
In the preliminary judgment, I summarised the evidence comprising the index offences as follows: "34 On 30 April 2018, the defendant sent an email to the generic email address of Lismore Court House. It commenced: 'To be submitted before the court for drug and police related violence cases relating to the drug war or the 'Nimbin Madigrass [sic]' beginning May, 2018. As parliament are aware, any police armed forces engaging in violence relating to their ongoing drug war against the people of the island of Australia will be treated as lethally armed and hostile military forces.' 35 Thereafter, the email contained similar material to the defendant's other messages to authorities, referring to an absence of responsibility for any death or injury occasioned to 'police armed forces or member of parliament'. The email had an attachment in the form of a flyer, in the following terms: 'Drug war is civil war. If police armed forces touch you without naming a criminal charge they are committing a crime. Treat them like any other criminal. If they are injured or killed in their assault accept no criminal charges against yourself. Demand fair military process as a drug war combatant. If taken prisoner of war consider it your duty to do as much damage as possible to the enemy. This document is on file with Lismore Court House should you require it.' 36 By May 2018, the defendant had relocated from South Australia to Nimbin in New South Wales, where, in that month, he attended the 'Mardi Grass' festival, which is an annual festival promoting the legalisation and multi-purpose use of cannabis. 37 The index offences were committed on three separate occasions over a four day period. On Friday 4 May 2018, police patrolling the festival alleged that the defendant yelled out 'Fuck the Police'. They attempted to speak with him and he threw a piece of paper at them saying, 'Read that'. He was issued with infringement notices for offensive language and 'deposit litter'. It would seem likely that this is the origin of the only other matter on his New South Wales criminal record. 38 On or about Monday 7 May 2018, the defendant hand-delivered a letter to either Lismore Court House or Nimbin Police Station, which was in identical terms to the attachment to the email quoted at [35] above. 39 In the early afternoon of the same day, police attended the same festival at Nimbin and, following a complaint from members of the public that is not the subject of a charge, approached the defendant. Police formed the view that he was under the influence of a drug and located a small quantity of cannabis (4g) 'at the scene'. The defendant became aggressive towards police. Police formed a view that his behaviour would be offensive and frightening to families and children at the location and issued a 'move on direction', with which he did not comply. He was arrested and resisted when police attempted to place him in a police vehicle. He was questioned, arrested and charged with possess prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1987 (NSW), refusing to comply with a direction under Pt 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA') and resist officer in execution of duty pursuant to s 58 of the Crimes Act. He was released on bail at around 10pm that evening, a condition of bail being that he not enter Nimbin other than to collect his belongings and only in the company of police. Police declined his request to drive him to Nimbin, both then and when he twice rang Triple-0 in the early hours, renewing his request. 40 The following morning at around 5.15am, police discovered that two marked police vehicles parked outside the police station had smashed windows. A rear window of one and the rear windscreen of another were shattered. The front windscreen of the first vehicle was also damaged. Police reviewed CCTV footage and saw that at 1:24am earlier that night, the defendant had caused the damage by repeatedly smashing the windows with a bush rock. He was arrested and when informed that he was being charged with two counts of intentionally damaging property, responded: 'Well you started the war'. He was taken to Lismore police station, where he refused to exit the police vehicle. He was forcibly removed and then refused to walk into the charge room. When dragged into the room, he kicked out at police and was handcuffed. He kicked a police officer in the stomach and was also charged with resist arrest and assault police officer, and was refused bail. 41 On 8 May 2018, Magistrate Heilpern at Lismore Local Court requested a psychiatric report on the defendant. Dr Gordon Elliott, forensic psychiatrist, attempted unsuccessfully to assess the defendant on 20 June 2018. Dr Elliott reported that the defendant declined to be assessed and 'remained civil throughout this brief interaction'. Dr Elliott stated that the interaction was too brief for him to form any relevant opinions, other than that 'his appearance was eccentric' and that he 'appeared slightly odd'. 42 On 4 July 2018, whilst on remand at the John Morony Correctional Centre, the defendant was required to attend and participate in a group 'communication' session involving 20 inmates led by a programs officer. When it was his turn to introduce himself to the group and discuss his communication skills, he said: 'I am [a] political activist and member of the marijuana party. I want to set fire to each police station in the state and country to teach the 'state' and country a lesson and hit them where it hurts financially. I would like to blow up Parliament House.' 43 The program officer advised her superior and referred the defendant to a mental health nurse for a mental health and risk assessment, as well as to a drug and alcohol nurse."
The defendant declined to give permission for a psychological assessment while on remand, so one was not carried out. On 30 August 2018, the defendant was examined by two psychiatrists, who concluded that the defendant's dishevelled appearance and reported behaviour was consistent with him having a mental illness, which required treatment for the protection of others. The two psychiatrists requested that an order be made in respect of the defendant pursuant to s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant was transferred to Long Bay Hospital on 2 November 2018. On arrival, he was noted to be calm, polite and exhibiting no thought disorder, although his appearance was described as "dishevelled and unkempt". Nevertheless he was administered an antipsychotic drug, being Clopixol (100mg), and Benzotropine (2mg), the latter presumably to counter side effects of the antipsychotic medication.
The defendant was discharged back to the Metropolitan Remand and Reception Centre ("MRRC") on 19 November 2018, the provisional diagnosis of schizophrenia not having been confirmed. The Psychiatry Registrar wrote: "During his time at Long Bay Hospital Mr Dickson was behaviourally settled. He gave a logical account for his offences and his ex-partner gave supporting collateral information that his bizarre behaviour was politically motivated and pre-planned. Mr Dickson has shown no symptoms of mental illness during his period of assessment. Mr Dickson does not require ongoing involuntary detention at Long Bay Hospital for the administration of psychotropic medication and mental state monitoring."
The defendant appeared unrepresented at his Local Court hearing on 28 September 2018, pleaded guilty to the two "damage property" charges and defended the other two charges. It appears from the defendant's cross-examination of police witnesses and the judgment of the presiding magistrate that the defendant contended that he was entitled to use cannabis on religious grounds; that his arrest was unlawful; that the resist police charge was "very minor" (with which the magistrate agreed); and that he was not subject to the laws of Australia. He was sentenced to concurrent sentences of 2 years imprisonment, back-dated to 8 May 2018, with a non-parole period ("NPP") of 18 months, expiring on 7 November 2019.
The defendant appealed the sentence's severity to the District Court. It is not apparent from the material whether he appeared unrepresented in that hearing, which was at Lismore on 31 January 2019. His sentence was varied to an aggregate sentence of 1 year and 3 months commencing on 8 May 2018, with a NPP of 9 months concluding on 7 February 2019, that is, a week after the hearing of his appeal.
Following his release on parole on that date, the defendant declined to consent to Corrective Services NSW ("CSNSW") contacting "significant others" in his life to verify information about him, for the purpose of preparing an assessment and developing a management plan. He explained that he did not want his family to know about the criminal proceedings. He rejected the view that he needed mental health or drug (cannabis) use intervention and refused to engage in intervention strategies as directed, which led to a breach of parole report being submitted to the State Parole Authority ("SPA"). On 17 April 2019, the defendant was warned and an updated report was requested from CSNSW, thus affording him a further opportunity to engage and comply with his parole, which he did not accept. On 6 May 2019, he telephoned his CSNSW officer and advised that he had moved to the Lismore area, but would not disclose his exact whereabouts. On 10 May 2019, his parole was revoked and a warrant was issued for his arrest.
A report by South Australian police dated 13 July 2019 records that they approached the premises of an unnamed woman in order to ascertain the defendant's whereabouts. The defendant came to the front door and was informed that New South Wales police were not seeking extradition at that time. The following month, the defendant was extradited back to NSW and returned to custody, where he remained until his date of release on 24 November 2019, at which time he was then subject to the ISO made by me on 7 November 2019.

The defendant's behaviour under the ISO

The defendant's behaviour since his release has been uneventful. He maintains that, pursuant to the conditions of his ISO, he has not used cannabis, which is confirmed by periodic drug testing.
The defendant remains committed to returning home to South Australia as soon as he is legally able to do so. His father, who resided in South Australia, passed away on the evening of Monday 25 November 2019. A condition of his ISO, made pursuant to s 29(1A)(d) of the Act, was that he could not leave the state without the approval of the NSW Commissioner of Corrective Services ("the Commissioner"). Accordingly, he requested the Commissioner's permission to attend his father's funeral in South Australia. Permission was denied. His mother and partner continue to reside in South Australia.
The defendant has refused to use any financial entitlement to unemployment funds to pay for accommodation, as a form of protest at not being able to return to his home state.

The present application

As noted earlier, the plaintiff's summons seeks an ESO for a period of two years. Section 20 of the Act sets out the four prerequisite conditions to be satisfied, if the Court is then to exercise its discretion to make such an order: "20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order." 21 Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence."
The first pre-condition is satisfied, as the defendant was serving a sentence of imprisonment for four NSW indictable offences at the time of the filing of the summons by the plaintiff. The defendant, through his counsel, accepts that the second precondition is also satisfied, namely, that the application was made in accordance with the requirements of Pt 2 of the Act, and I agree.
The third and fourth preconditions, that is, s 20(c) and (d) of the Act, are contested by the defendant. In relation to the third precondition, the plaintiff puts its case on the basis of s 20(c)(iii) of the Act, that is, that the defendant is "a convicted NSW terrorism activity offender". That term is defined in s 10 of the Act as follows: "10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: (a) the offender has at any time been subject to a control order, (b) the offender has at any time been a member of a terrorist organisation, (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). (3) In this section: terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code."
The plaintiff relies on s 10(1) of the Act. There are two parts, the first being satisfied by the defendant continuing to be supervised under the Act after serving a sentence of imprisonment for a NSW indictable offence. As to the second part, the plaintiff relies upon s 10(1)(c)(i), namely, that he "has previously made [a] statement … advocating support for any terrorist act or violent extremism". The term "terrorist act" is defined in s 4 of the Act to have the same meaning as in Pt 5.3 of the Commonwealth Criminal Code ("the Code"). That definition, which is at s 100.1 of the Code, is in these terms: "100.1 Definitions (1) In this Part: … 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."
The plaintiff submitted that the offending material satisfies s 10(1)(c)(i) of the Act, in two ways; it is a "terrorist act" in that it constitutes a "threat of action", that is, a threat "to cause serious harm that is physical harm", and it constitutes "violent extremism", a term that is undefined in the legislation. The plaintiff relies on the definition of "extremism" in the Oxford Online Dictionary, which is: "[t]he holding of extreme political or religious views; fanaticism". However, I do not understand the plaintiff to be submitting that the legalisation of drugs is an "extreme political … view". Rather, I understand the plaintiff to be submitting that the defendant allegedly sought to achieve that political outcome through violent means.
The defendant submitted that, since the proceedings are civil in nature and the proceedings are to be conducted in accordance with the rules of evidence (see s 50(1) of the Act), and s 140 of the Evidence Act 1995 (NSW) applies. Section 140 provides: "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
The defendant submitted that the section "gives effect" to the Briginshaw test: Briginshaw v Briginshaw (1983) 60 CLR 336; [1938] HCA 34 per Dixon J at 361-2. Given the gravity of the subject matter of these proceedings which have the potential to, in the defendant's words, "label [the defendant] a terrorist for the rest of his life" and restrict his liberty, the defendant submitted that s 140(2)(c) is particularly relevant to the Court's determination of whether it is satisfied that the defendant is a "NSW terrorism activity offender" (s 20(c)(iii) of the Act).
The plaintiff conceded that s 140 applies to the proceedings, but responded that the objects of the Act in s 3 and the paramount consideration for the Court, as stated in s 25(2) of the Act, have the effect of excluding the Briginshaw test. The relevant sections of the Act are as follows: "3 Objects of Act (1) The primary object of this Act 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. … 25 Determination of application for extended supervision order (1) … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."
Implicit in the plaintiff's submission is the proposition that s 140 does not import the Briginshaw test, which in my view is contrary to authority: see Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [47], per Ipp JA, Tobias and Basten JJA agreeing, applying the test elaborated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 per Mason CJ, Brennan, Deane and Gaudron JJ at 171; see also R v Petroulias (No 8) (2007) 175 A Crim R 417; [2007] NSWSC 82 per Johnson J at [17].
The plaintiff has not elaborated on how the objectives of the Act and the paramount consideration, as set out in ss 3 and 25 of the Act, are inconsistent with the Briginshaw test or s 140 of the Evidence Act, which mandates the Court taking into account "the gravity of the matters alleged" in civil proceedings. To my mind, there is no apparent inconsistency.
The plaintiff also submitted that s 21 of the Act is relevant to this question, but it is apparent from its terms that it applies exclusively to the issue to be determined at s 20(d), that is, the ultimate question for determination in respect of whether a court should make an ESO, in the same way as does its counterpart provision in relation to an application for a continuing detention order (s 35). It does not facilitate a loosening of the civil standard of proof to be applied to the preliminary and intermediate steps of the process leading to that final determination, including s 20(c)(iii), nor is there any contradiction involved in that approach. If the earlier steps have been established according to the conventional standard of proof in the manner required by s 140 of the Evidence Act, the court then moves to the quite different standard of "a high degree of probability" for the purposes of s 20(d), which displaces the ordinary civil standard of proof: see State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at 29. Section 20(c)(iii) assists in understanding how this different standard is to be applied.
In any event, I am satisfied that, pursuant to s 10(1)(c)(i) of the Act and having regard to the nature of the offending material, the defendant has made statements that advocate support for terrorist acts. Accordingly, the plaintiff has satisfied the first three preconditions of s 20 of the Act, leaving s 20(d) for consideration.
The term "a serious terrorism offence" is defined in s 4 of the Act to mean "an offence against Pt 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment". I note that two offences coming within this description are "engaging in a terrorist act" and "doing acts in preparation for, or planning, a terrorist act", which are contrary to ss 101.1 and 101.6 of the Code respectively and carry maximum penalties of life imprisonment. I now consider the evidence tendered by the plaintiff in support of its submission that s 20(d) is satisfied.

Forensic reports

Pursuant to orders made by me on 7 November 2019, reports were prepared for the final hearing by a registered psychologist and a qualified psychiatrist.
In the preliminary judgment, I explained my reasoning for concluding that the material, if proved, would justify the making of an ESO, as follows: "87 ... I find that the material before me would, if proved, justify the making of an ESO. The material is capable of satisfying the Court that [the defendant] poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. 88 There are three factors in combination that lead me to this conclusion. They are: the sustained nature of the defendant's campaign and its focus on violence being excusable in what he views as an ongoing 'war'; his refusal to cooperate in assessments by health care professionals and others; and his refusal to comply with conditions of parole. As observed by Ms Terry, it may be that if the defendant chooses to cooperate with health care professionals and others and provide more information about his motivation, emotional responses and history, the degree of threat may be reassessed at a significantly lower level."
The defendant chose to co-operate with the psychologist and psychiatrist who were appointed to assess him.

The psychologist's report

Chelsey Dewson, psychologist, prepared a report dated 10 January 2020. Ms Dewson interviewed the defendant on 11 December 2019, for a period of 2 hours and 40 minutes. In her report, she noted that the defendant told her he is exploring the possibility of obtaining the disability support pension, due to him having Scheuermann's disease, which I understand to be a developmental disability of the spine. His employment history comprises periods of unskilled or semi-skilled physical labour, in which case it may well be that further employment of that type is not realistic. That being so, Ms Dewson notes that: "it will be important for him to find ways to occupy his time in meaningful ways that support an offence free life in the future".
The defendant claimed to Ms Dewson that he remains in a relationship with his partner of 20 years, although she is referred to in documentation as his ex-partner. I note that his partner was present in court during the hearing and accept that their relationship is continuing. He claimed she does not have a criminal history, does not use illicit substances and does not share his views on drug prohibition. He has regular contact with his mother, who continues to reside in South Australia. His only other family contact is to a limited extent with his half-sister.
The defendant advised Ms Dewson that the only illegal substance he uses is cannabis, although he last used it four months prior. I note that he was in custody for three of those four months, although I do not doubt that cannabis can be accessed in the prison system. He expressed interest in using cannabis in the future, claiming he had the mental discipline to control his use of it at will, and that he had no intention of engaging in any intervention for addictive behaviours. Ms Dewson recommended that the defendant "challenge his attitudes towards substance use and maintain sobriety".
Ms Dewson found that the defendant: "… satisfies the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5) criteria for Cannabis Use Disorder - severe - in early remission - in a controlled environment (304.30). Given his lack of motivation for abstinence, [the defendant] will likely require professional intervention and support in order to maintain his recently achieved sobriety. I note that this will largely depend on his willingness and motivation to do so."
A perplexing aspect of the defendant's history in the preliminary proceedings was the apparent absence of an explanation as to why it was that in 2016, when aged about 40, not having offended in 17 years and with no prior threats or acts of violence against authority figures, he made threats of violence and committed the index offences. As noted earlier, a concern by Justice Health psychiatrists in 2018 that he may have a mental illness was not substantiated.
Similarly, Ms Dewson's report eliminates an evidentiary basis for concluding that the defendant has a mental illness: "There was no evidence that [the defendant] presented with a psychotic disorder, although he did present with persecutory beliefs. There was no evidence of hallucinations, negative symptoms or disorganised speech/behaviour. It is possible that [the defendant's] previous presentation whilst housed in custody was related to his recent drug use, although this is unclear. Regardless, based on the information made available, there is no evidence that [the defendant] was experiencing psychotic symptoms at the time of the current assessment."
However, Ms Dewson's report relates a narrative by the defendant that offers, at least in part, an explanation for the hiatus. He informed her that for 20 years he was a member of the Australian HEMP Party, which is dedicated to the legalisation of cannabis; HEMP is an acronym for "help end marijuana prohibition". There was no discernible progress on legalisation, so he decided to become more active on the issue by emailing "every magistrate, police or political" group. This coincided with him being unable to continue labouring work, due to his spinal condition, thus affording him time to focus on his campaign. The HEMP Party told him to stop this campaign, so in 2017 he withdrew his membership and continued to promote the cause of marijuana legalisation as he saw fit.
Ms Dewson questioned the defendant about his present beliefs, objectives and the means he intended to deploy in pursuit of those objectives. He adhered to the goal of the legalisation of the use of narcotics and other illegal drugs and stated that violence is used against people who use drugs, for example in the course of "drug raids" by police. He felt targeted as a drug user and feared that violence could be used against him, although he acknowledged that it had not, thus far. His future efforts would include handing out flyers and speaking to people. He regarded the use of violence as not useful, but rather counter-productive to his cause, that violence by both police and drug users is unjustified and denied any intent to use violence in his continuing political activism.
The defendant sought to minimise his damage of the police cars, claiming that "I don't think I did anything more than break a window, it's pretty common (behaviour)" and explaining that his objective was to get himself before a court so that he could advocate his views on legalisation. Ms Dewson related: "According to [the defendant], he has 'gone to effort not to hurt anyone, including police', indicating he 'wouldn't have damaged (the police vehicles) if there was anyone in them'."
Ms Dewson said that the defendant failed to recognise that his letters contained violent statements and denied that on 4 July 2018, whilst on remand at the John Morony Correctional Centre and participating in a group "communication" session, he had threatened to "blow up Parliament House". The defendant said that when the group facilitator attempted to paraphrase what he had just said, she claimed as much, but he declined to correct her; he said to Ms Dewson: "I didn't actually threaten anything".
The defendant complained that the ISO is keeping him from his family and placing stress on his relationships, and found his current accommodation of shelters and hotels, which is arranged by Community Corrections, to be a "traumatic" experience. Ms Dewson reported that the defendant's primary goal is "to return to South Australia as soon as possible, where he will seek support from his partner and mother".
Ms Dewson administered three tests in order to gauge the defendant's likelihood or otherwise of committing further offences, in particular, general offending, violent offending and extreme violent offending. These were, firstly, the Level of Services/Case Management Inventory ("LS/CMI"), which she described as a structured risk assessment guide which includes treatment and service delivery considerations as well as risk factors, in its identification of re-offending risk assessment. This yielded a result of the defendant having a high risk of general re-offending, which I note is a more serious result than when the same test was applied in March 2019 and reported in the report of psychologist Rachel Terry for the purposes of the preliminary hearing in this matter. In order to assess his actuarial risk of violence, Ms Dewson applied the Violence Risk Scale ("VRS"), which has regard to both static and dynamic risk factors. The defendant was found to have a medium risk of violent re-offending.
The third and final test was the Violent Extremism Risk Assessment ("VERA-2R"), which is a structured professional judgement protocol, using relevant indicators for violent extremism. Ms Dewson considered the defendant's history and presentation in her consultation against six groups of indicators, being: (1) beliefs, attitudes and ideology; (2) social, context and intention; (3) history, action and capacity; (4) commitment and motivation; (5) protective indicators; and (6) additional factors. The latter category included his absence of juvenile offending, his reporting of a stable and "unproblematic" childhood and the absence of "any current or historical symptomology associated with affective disorders or incidents related to self-harm". Ms Dewson assessed the defendant, in context, as being at a moderate to high risk of unlawfully using violence against person or property to attempt to intimidate, coerce or influence government agencies.
A likely future scenario involving violence would be similar to the index offence, being engaging in criminal behaviour such as property damage or drug use, and inflicting violence on the arresting police officers, although the potential for more serious harm occasioned to the arresting officers, either deliberately or accidentally, could not be discounted. Ms Dewson also thought it was possible that the material the defendant disseminates in the future could contain "veiled or overt threats of violence."
In conclusion, Ms Dewson drew a possible connection between the defendant's prolific use of cannabis and his shift to means to making threats of violence: "Over time, it appears that [the defendant] has engaged with other drug users, soliciting their stories about perceived injustice by law enforcement agencies. Whilst his personal interactions with police prior to the index offence had been relatively insignificant, it appears that his moral outrage to the perceived injustices towards others intensified. It is possible that these persecutory thoughts were exacerbated by his prolific cannabis use. He has subsequently formed strong views in relation to the treatment of drug users, potentially causing him to form a moral obligation to act on behalf of his peers. Through cognitive restructuring and ongoing persecutory thoughts, his desperation to seek redress has also increased. [The defendant] freely acknowledged his intent to commit the offence, not only as an action within itself but also as an encouragement to others to act similarly. Further, and concerningly, [the defendant] has expressed motivation to educate and indoctrinate others with his own unhealthy and biased views. This acts as another motivating factor for him offending as he viewed that inmate population as a potential market to target with his political discourse."
Ms Dewson considered that an ESO for a period of two years was appropriate, with the defendant utilising it as a period preparatory to him returning to South Australia, where he would have the benefit of family support, with the conditions being relaxed in response to positive behaviour. Psychological services should include treatment of his substance abuse and offence-specific intervention.

The psychiatrist's report

A report was obtained from Dr Anthony Samuels, psychiatrist, which is dated 6 January 2020. He met with the defendant on 17 December 2019. The first twenty pages of Dr Samuels' report comprise an itemisation and partial summary of the documentary material which was provided to him by the plaintiff, which is essentially the material that has been tendered to the Court on the application together with the preliminary judgment. Dr Samuels then related the relevant parts of the history he obtained from the defendant in the interview, which was followed by his conclusions. I consider the following aspects of his report to be particularly pertinent to my determination pursuant to s 20(d) of the Act.
Dr Samuels considered the defendant's likely motive in committing the index offences: "Having reviewed the written manifestos of [the defendant] prior to the damage of the police vehicles, from a psychiatric perspective these documents appear to be slightly thought disordered, rambling and very non-specific in their aim. In my opinion, [the defendant] smashed the police vehicle because he was angry with the police, having been left in Nimbin late at night. This was not, in my view, an act of terrorism but in some ill-conceived way it seems he sought to capitalise on it in order to promote some sort of ideological viewpoint. He indicates he was aware that he would be arrested and he hoped to be able to state his case before a judge but he certainly did not expect to find himself the subject of anti-terror legislation."
Dr Samuels also considered whether the defendant has, or had, a mental illness, stating: "My impression is that [the defendant] has some underlying paranoid personality traits which become more prominent when he is smoking marijuana. His behaviour at the Nimbin Festival was certainly disordered and he may well have been frankly psychotic at that time and in the early period of his incarceration."
Dr Samuels related the defendant's account of his motivation and objectives, as follows: "When I saw him today, 17 December 2019, [the defendant's] mental state was quite settled. It is worth noting that he has not used marijuana for a prolonged period. On mental status examination now, [the defendant] is minimising the previous events and claiming little or no knowledge of the statements he made in the past. He made it clear that he does not see himself as an extremist or terrorist, that he has no wish to overthrow the government, inflict harm on the structures of government or law enforcement agencies. He said that whilst he has some idea of the concept of being a 'sovereign citizen' he said he does not espouse these values. [The defendant] claims to have only two agendas at the present time and that is to further the cause of marijuana legalisation and that he is supportive of treaties in each state with indigenous people and many people in the community would hold these same views."
Dr Samuels considered whether there was any evidence of the defendant having engaged in terrorist acts or evidence, or whether he may do so in the future, taking into account the past results of psychological tests intended to assess the likelihood of a person engaging in terrorist attacks. Dr Samuels stated: "Apart from rambling, somewhat disjointed comments, threats and challenges asserted in [the defendant's] various communications, there really is no evidence that he has engaged in any acts of violence, terror or extremism to date. There really is no evidence that he has any links to substantive terrorist organisations, and he is currently not espousing any harm to attack government infrastructure nor to harm or hurt people. In my opinion, the use of the VERA-2 and the TRAP18 overstates his risk of perpetrating a terrorist act but may be indicative of his risk of general criminal offending. It is my view that whilst [the defendant] is not manifesting any signs of mental illness at the present time, at the time of the commission of this offence and probably in the early stages of custody, that he was exhibiting some paranoid personality features with possible associated psychotic symptoms and on this basis the HCR-20 is probably a better instrument to determine future risk of violence."
The HCR-20 is an assessment tool that is used, in Dr Samuels' words: "... [to] systematically assess the risk of future violence in patients with a history of mental illness who have incurred legal consequences as a result of their offending behaviour. There are 20 items in the HCR-20 including 10 historical items, 5 present clinical items and 5 future risk management items."
In evidence during the hearing, Dr Samuels stated that, taking into account the items on the HCR-20, he would regard the defendant's future risk of violence as being moderate. In his report, he contemplated what types of acts or threats of violence the defendant may commit in the future, and in what circumstances, as follows: "In terms of historical risk factors, the most pertinent risk factor would seem to be [the defendant's] marijuana use and it seems highly likely, given his beliefs that he will go back to smoking marijuana in the doses he has consumed before and this certainly could have some effect on his mental state, may make some of these beliefs more prominent and the potential for further threats or acts of vandalism may become more prominent under such circumstances. … In my opinion, [the defendant] remains at moderate risk of ongoing legal issues through threatening communications, non-specific threatening and intimidating behaviour, hostility and aggression towards the police and the courts and possibly further property damage. He also remains at risk of being charged with drug related offences. … There certainly is a possibility that if [the defendant] is associating with like-minded individuals and is smoking marijuana again, that his protesting and political activism could become prominent and it is possible that further letter writing, email and other forms of protest and hostile interactions with law enforcement and the courts (including physical acts of violence and property damage) could occur again. However, hopefully this has been a salutary experience for [the defendant] and will lead to some modification of his behaviour. I think it is unlikely from a psychiatric perspective that [the defendant's] actions would escalate to the level that he would cause serious physical harm, cause a person's death, endanger the life of a person or cause a very serious risk to the health or safety of the public or sections of the public.
In evidence, Dr Samuels recommended that a mental health approach would likely be beneficial if the defendant's behaviour does again deteriorate, particularly if paranoid traits re-emerge following any resumption by the defendant of the use of cannabis: "Essentially I think that [the defendant] is a man who has a mental illness and substance misuse issues, and he obviously has a long pattern of disruptive-type behaviours - writing letters - and in this instance, smashing a police car, but these behaviours that I have worked for a long time in general mental health and I see many people who present these types of behaviours each year and they certainly do have the capacity to engage in similar behaviours and to perhaps even engage in behaviours that are more serious, but I really see his pattern of offending in more in keeping with that of a man with a mental illness who causes problems and disruptions in the community rather than somebody who is engaging in a pattern of extremist terrorist type files. … I think he is someone who has the potential to be an ongoing nuisance but whether I do think on the basis of his history and my assessment, the chances of him committing more serious offences are on the low end of the scale."
Dr Samuels has expressed an opinion that the defendant and the community would benefit from him returning to South Australia as soon as he is legally able to do so, in order that he would have the support of his immediate family, which comprises his mother, partner and sister: "If the court determines that an ESO is the best management option for [the defendant], I would advocate the least possible duration as in my view there are significant advantages to returning him to South Australia where he has the support of family and a partner, where it may be possible to better link him into long term mental health and drug and alcohol care and for general police and emergency services to coordinate their management of him and to seek advice from specialist fixated threat services if required."
In his evidence in court, Dr Samuels reiterated that the defendant returning to South Australia would mitigate future risk. Dr Samuels stated: "I think there are some risks if Mr Dickson continues to live or is forced to live in New South Wales away from family and supports. The very few supports that he has, that he could get more angry; have even stronger views about these things; feel more persecuted, in a way. I think that my view as a psychiatrist is that for him to be around the few supports that he has is healthier; and for him to be engaged with mental health and drug and alcohol services, that doesn't obviate completely the threat, but I think it's a more measured response to the kind of problems that's manifesting."

The outcomes sought by the parties

The plaintiff maintained its application that the defendant be subject to an ESO for two years, but submitted that, in light of the forensic reports obtained for the final hearing, it would be appropriate for the matter to be re-listed after 12 months for the purpose of determining whether the ESO should be varied, to allow the defendant to return to South Australia under suitable altered conditions. I understood this to be an acknowledgement of the benefits of the defendant resuming his family life in South Australia to both him and the community, in terms of the risk amelioration foreshadowed particularly by Dr Samuels.
The plaintiff submitted that it was both technically and practically possible for an ESO to operate on a defendant who resided interstate. An extradition order could be sought if the defendant breached a condition to the ESO. In oral submissions, the plaintiff explained that, if the Court was minded to impose an ESO for a shorter period, a minimum of three months would be required for the necessary memoranda of understanding to be established between the relevant state agencies in New South Wales and South Australia.
The defendant maintained that he had not committed a terrorist act as defined in s 100.1 of the Code and that the evidence did not establish at all or to the requisite standard that there is a risk of him committing such an act in the future. Thus two of the necessary prerequisites for making an ESO, being findings by the Court pursuant to s 20(c) and (d), could not be made.

Consideration

At the preliminary hearing, I considered the risk assessment reports of psychologist Rachel Terry dated 28 June 2019 and 10 October 2019, and the risk intervention report of Community Corrections Officer Joyleen Nowrot, dated 26 July 2019. The defendant declined to co-operate with the preparation of those reports, thus depriving the authors of the benefit of directly assessing him.
The opinions of Ms Dewson and Dr Samuels generally coincided on the significance of the defendant's use of cannabis as the primary contributing factor to his behaviour that has attracted the interest of the authorities since 2016. They also agreed that his future use of cannabis was the key to whether he committed further offences and resumed making threats and that his level of risk of committing violent offences was moderate.
There is a marked difference of opinion between Ms Dewson and Dr Samuels as to the level of risk of the defendant committing a terrorist-type offence. Ms Dewson thought that, based on the VERA-2R test and her clinical assessment, the defendant had a "moderate to high risk" of violent extremism, whereas Dr Samuels considered the application of the VERA-2R test as inappropriate for an offender like the defendant; in particular, Dr Samuels suggested that it overstates the defendant's risk of perpetrating a terrorist act. Dr Samuels thought there was no appreciable risk of the defendant committing a terrorist-type offence of violence.
Both the quote from Dr Samuels' report at [62] above and my summary of Ms Dewson's report highlight that the two experts were of the opinion that the defendant could revert to making "threats", which necessitates a determination of whether, if the defendant again sent or put up posters of offending material, that would constitute a "terrorist act" pursuant to the definition in s 100.1 of the Code.
The defendant submitted that the evidence as a whole does not establish whether, assuming the defendant sent or posted the offending material, he did so with one or more of the intentions set out at s 100.1(2), in particular, subs 2(a) to (e). Equally, that the plaintiff cannot exclude that the defendant's intention came within subs 3.
The plaintiff has not disputed that this is the necessary intention in order for a threat of action, rather than an action, to constitute a terrorist act. Having regard to Naaman (No 2) at [33]-[35], this must be so. An example of the court not being satisfied that threats which ostensibly threatened harm had the necessary intent to be terrorist acts is State of New South Wales v RC (No 2) [2019] NSWSC 845 per Garling J, particularly at [122]-[123].
Counsel for the defendant, Mr Kerkyasharian, submitted that the defendant's intention may have been to seek attention, underscore the promotion of his political cause, or may have been "just rambling". This submission as to the evidence of the defendant's intent attracts support from Dr Samuel's report and his evidence at the hearing, in which he said, in relation to the incident of the defendant whilst in prison threatening to blow up Parliament House: "… I certainly got the sense that [the defendant] enjoyed being slightly controversial. Whether he actually had any real intent, I think he enjoyed that interaction. It gave him some sense of specialness/importance."
I am of the opinion that, based on the evidence before me, at the time that the defendant sent and posted the offending material, he did not intend the acts of violence threatened therein. While a repetition of such threats in the future may well constitute a criminal offence, it would not constitute a terrorist act without the requisite intent, as defined in s 100.1 of the Code. I accept the opinion of Dr Samuels that any similar threats in the future are also unlikely to be accompanied by an intention or capacity to cause actual physical harm or otherwise come within the behaviours that are set out in subs (2) of the s 100.1 definition.
Accordingly, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO. I note that if I had been satisfied to the requisite degree required by s 20(d), an exercise of the discretion to not make an order would have warranted serious consideration, in the circumstance that the defendant returning to South Australia at the earliest opportunity is the option carrying the least risk to the community of a serious terrorist act being committed: see Naaman (No 2) at 29.
I make no further order with regards to an ESO, which has the effect that the defendant is no longer subject to the ISO.

Orders

For these reasons, I make orders as follows: 1. The summons is dismissed. 2. The Interim Supervision Order made on 7 November 2019 (which came into effect on 24 November 2019 and was renewed on 18 December 2019, 12 January 2020 and 14 February 2020) is discharged forthwith. 3. Access to the Court's file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the 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.

Amendments 20 February 2020 - Typographical error on coversheet corrected 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: 20 February 2020

Drug Misuse and Trafficking Act 1987(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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