By summons filed on 19 February 2019, the State of New South Wales ("the State") under s 22 of the Terrorism (High Risk Offenders) Act 2017 NSW has applied for an extended supervision order in respect of the defendant, Mr Amin Elmir.
The summons also seeks an interim supervision order under s 27 of the Act, an order for the appointment by the Court of two experts to provide reports to the Court as to risk assessment and risk management, and an order restricting access to the Court's file unless and until a Judge makes an order in that regard after the parties have been provided the opportunity to be heard.
Under s 27 of the Act, this Court is empowered to make an interim supervision order in respect of a person referred to as an eligible offender if in proceedings for an extended supervision order it appears to the Court:
"(a) that the offender's current custody or supervision will expire before the proceedings are determined; and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order".
It is not in issue before me that Mr Elmir's current custody will expire before these proceedings are determined.
State of New South Wales v Elmir [2019] NSWSC 263 | Case summary | Zoe
It is appropriate to say that Mr Elmir is currently in custody. He was arrested in December 2016 on Commonwealth charges. He has been charged under section 119.4(1) of the Criminal Code (Commonwealth) ("the Code") that between the hours of 23 April and 19 June 2016 he intentionally engaged in conduct in the Republic of Turkey, namely committing acts in preparation for incursions into a foreign country, namely the Syrian Arab Republic for the purpose of engaging in hostile activities contrary to s. 119.1 of the Code.
Mr Elmir has recently pleaded guilty to that Commonwealth charge. Apart from the sentence that he is currently serving, to which I shall return in a moment, he is in custody, bail refused, on remand, awaiting sentence for that offence. I am informed that the proceedings on sentence have been fixed for hearing before my colleague, the Honourable Justice Davies on 28 June at 2019. It is not unreasonable to expect that following those proceedings his Honour will take some time for consideration, but it is likely, no doubt, that sentence would be passed within three or four weeks. Those observations are relevant for today's purposes in a way I will explain in a moment.
While in custody on remand for that Commonwealth matter, Mr Elmir committed the offences, to which he pleaded guilty of assaulting not one but two corrective officers at the Correctional Centre where he has been held in custody. He was sentenced in the Local Court to terms of imprisonment for each of those offences, and the longer sentence expires on 17 March 2019, that is to say next Sunday. For that reason the application for interim orders has been brought on with a degree of urgency.
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Issues
Mr Pickin of counsel who appears for Mr Elmir has, submitted that Mr Elmir accepts that there is no issue that the statutory conditions for the making of an interim order are in fact satisfied. There remains, of course, a question of discretion as to whether the order should be made. That discretion arises out of the opening words of s 27 of the Act, "the Supreme Court may make an order" if the conditions I have set out above are satisfied. Mr Pickin has submitted that an order should not be made. There is also an issue about whether I should make the order appointing experts to report to the Court in relation to relevant matters.
Although Mr Elmir has already agreed to a statement of facts which will be put before the sentencing Court in the Commonwealth proceedings, he wishes otherwise to maintain his right to silence. In that regard he would prefer not to be required to attend for appointments with the Court appointed experts until sentence has been passed lest he unwittingly says something in the course of those interviews which is prejudicial to his position.
Naturally a person who has pleaded guilty to an offence generally assists his position on sentence if he makes full and frank disclosure to the authorities. I am sure that Mr Elmir has been given such advice. Having said that, I should observe that the agreed facts are quite fulsome in their detail. However, I will take into account Mr Elmir's wish to maintain his right to silence in considering whether I should make the orders sought today and the form which those orders should take.
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Consideration
I am satisfied that condition (a) of s 27, that Mr Elmir's current custody will expire before the state's claim for final relief is determined, is satisfied.
I turn now to condition (b), which I repeat is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Before dealing briefly with the matters alleged in the supporting documentation, I should make reference to s20 of the Act which lays down conditions for the making of an order for supervision of an eligible offender, which is an extended supervision order.
Mr Elmir is an eligible offender because he is serving a sentence of imprisonment for a New South Wales indictable offence within the meaning of s 7 of the Act. Although the assault charges in relation to the prison officers were dealt with summarily, assault occasioning actual bodily harm is a serious indictable offence under the Crimes Act 1900 NSW. I should also state that he is over the age of 18.
The section 20 (a)-(c) conditions for making an extended supervision order of which there is evidence before me are that: Mr Elmir is an offender in custody serving a sentence of imprisonment for a New South Wales indictable offence; the application for the order has been made in accordance with the terms of s 23 of the Act, in particular I make mention of sub-ss (2) and (3); and Mr Elmir is a convicted New South Wales terrorism activity offender under the terms of s 10 of the Act.
It is an element of that last condition (s 20(c)) that, as I have said, Mr Elmir is serving a sentence of imprisonment for a New South Wales indictable offence. I am also of the view that the evidence is capable of proving that he is an offender who has previously carried out an activity advocating support for terrorist acts, or acts of violent extremism under s 10(1)(c)(i) of the Act.
It may also be true to say as the State argues through Mr Casselden of Senior Counsel that the matters alleged before me demonstrate that he has a previous personal association or affiliation with a group advocating support for terrorist acts or violent extremism within s 10(1)(c)(ii) of the Act. Those provisions are in the alternative, and both are capable of being satisfied especially given Mr Elmir's plea of guilty to the Commonwealth foreign incursion offence.
The facts in relation to the Commonwealth offence, I am satisfied to a level sufficient for present purposes, are that Mr Elmir left Australia in April 2016 with his parents, who were attending to religious observance in Saudi Arabia. Without their knowledge, he absented himself from their company and travelled to Turkey where he made preparations to cross the border into Syria to fight with the Islamic State, as it is sometimes referred to. The facts in relation to that expedition are fully set out in the statement of facts prepared for the sentencing proceedings, as I have said, and they form an important basis of the "matters alleged" today for the purpose of s 27 of the Act. I repeat, it was Mr Elmir's intention to undergo military training, to cross the border and to fight with Islamic State.
It appears from the agreed facts that he had religious differences of conscience with those who were running the safe house where he was residing and who were preparing him to cross the border. It says nothing against him to say that this led to a disagreement with the person in charge of the safe house resulting in Mr Elmir being expelled from the safe house with his full military equipment.
Notwithstanding the urging of others with whom he remained in contact here in Australia he seems to have thought better of the whole enterprise. With his father's help, he sought assistance from the Australian Embassy in Turkey. As his passport had been cancelled by the Australian Government, he was provided with an emergency passport permitting his return to this country in late June 2016. He was not immediately arrested for the Commonwealth offending.
Apart from those considerations which are of themselves of the greatest significance, investigators examining his electronic devices have established, and these matters are also the subject of agreed facts, that he was a follower of a number of prominent international preachers of a Salafist bent who proselytized a radical view of Islam, much admired, on the evidence I have read from expert report put before me, by jihadists and foreign fighters. If all of these matters are proved at the hearing there can be no doubt that the condition in s 20(c) will be satisfied.
The final condition for making an Extended Supervision Order is whether 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 an Extended Supervision Order (s 20(d) of the Act. It is not my task at this preliminary stage to determine that question. Rather, as I have already said, my task is to determine whether, if the matters alleged in the supporting documentation I have received in evidence today are proved at the final hearing the making of an Extended Supervision Order would be justified. To put it another way, the final question is whether the material tendered before me is capable of satisfying a Court to the requisite high degree of probability that the offender poses the unacceptable risk described in the statute.
Section 27(b) of the Act does not require me to make any deep evaluation of the material. It is my task to review the material through the lens of the plaintiff's case and taking it at its highest, to make a limited evaluation, not to any particular standard of proof, of its capacity to be persuasive.
Having considered the material contained in the affidavit evidence that has been read in the plaintiff's case I am satisfied that the matters alleged are capable of satisfying the Court, if it accepts the evidence at the final hearing, to the necessary high degree of probability that Mr Elmir does pose the statutory unacceptable risk. Naturally it will be a matter for the Court's judgment after the final hearing, having heard all of the evidence led on either side of the record, and all of the arguments of counsel, whether in fact the Court enjoys that high degree of satisfaction.
In coming to this conclusion I have taken into account the risk assessment undertaken by Ms Naomi Prince as part of the statutory procedures for an order, as required by s 23(3)(b) of the Act. Ms Prince is a highly qualified clinical and forensic psychologist employed by Corrective Services New South Wales. Her report was prepared without the benefit of the cooperation of the offender. I think understandably he took the view that given at the time the report was prepared he had not yet entered his plea of guilty, he did not wish to speak to the expert about the matter lest he prejudice his case. That is to say he elected then to exercise his right to silence for which he cannot be criticised and from which I draw no adverse inference.
Ms Prince, however, applied the usual actuarial tools employed in this area to the brief of material provided to her and made the assessment that Mr Elmir posed a moderate to high risk of engaging in politically motivated violence, extremist violence, or terrorism activity if not kept under an Extended Supervision Order. It goes without saying that even a "moderate" risk of this type is unacceptable.
I have also had regard to all of the mandatory consideration set out in s 25(3) of the Act as summarised in the written submissions prepared by Mr Casselden and Ms Mellis for the State. I find it unnecessary to detail all of that material for present purposes but I am satisfied to the extent to which these matters inform the question of unacceptable risk that they bolster my view about the applicability of s 27(b) to this case. I have borne in mind too, that at the final hearing the paramount consideration for the Court to consider will be the safety of the community.
For these reasons I am satisfied that the conditions of s 27 have been satisfied.
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Discretion
I acknowledge that I have a discretion whether or not to make an interim supervision order notwithstanding the satisfaction of the s 27 conditions. Mr Pickin has submitted that such an order would be futile, basically because it may be expected that Mr Elmir will be serving a sentence for the foreign incursion offence for the foreseeable future given the maximum penalty for such an offence is life imprisonment under the Commonwealth legislation. Until then he will remain in custody on remand.
It would be entirely inappropriate for me to second-guess the sentencing judge. There is force in learned counsel's argument but as he acknowledged some recent sentences have been at the lower end, although perhaps those offences did not carry such a severe maximum penalty. But in any event it is impossible for me to say what Davies J will do. I do not have all the evidence that he will have in due course.
In my view it is not futile to make the order even though it is likely to be suspended by reason of the defendant's continuation in custody. Moreover it is important that the necessary preliminary steps are followed before the State sentence expires. Acceding to an order now will ensure as well that the matter is ready to proceed to a final hearing with the benefit of expert opinion from Court appointed experts.
Although Interim Supervision Orders and Extended Supervision Orders are suspended when the offender is in custody it seems to me there is nothing to stop the Court from dealing with the matter in accordance with its usual procedures while the offender serves a term of imprisonment for the Commonwealth offence, as I have been reminded by Mr Casselden. I should also record that serving a term of imprisonment for a Commonwealth indictable offence does not qualify an offender as an eligible offender for the purpose of the Act. For these reasons I exercise my discretion to make the interim order.
I have been reminded by Mr Casselden that under s 24 (5) of the Act as I am satisfied that the matters alleged in the supporting documentation would if proved justify the making of an Extended Supervision Order I am required by law to make orders appointing experts to examine the offender and furnish reports to the Court on results of those examinations, and to direct the offender to attend those examinations.
Mr Pickin has submitted that I should not require that to happen given the Mr Elmir's wish to maintain his right to silence. I am not satisfied that I can dispense with that requirement given the decision I have made, nor am I satisfied that it would be appropriate to make a suppression order in respect of the contents of those reports as was suggested by the State in argument. I must say with respect that it would be a very unusual step for the Court to withhold relevant evidence from a judge charged with sentencing a citizen for a very serious offence which carries a maximum penalty of life imprisonment. And I am not satisfied that I am empowered under s 71(2) of the Act to make an order limiting the use to which the expert reports can be put. It seems to me that that power is conferred upon another court who may be dealing with the offender in other proceedings. The provision does not apply to proceedings under the Act.
However, I am of the view, as I discussed with counsel during argument, that an order can be made under s 24(5) but directing that the examinations are not to take place until after the completion of the administration of criminal justice in relation to the foreign incursion offences. The most practical way of doing that I think is to direct that the examinations are not to take place before a specified date, reserving liberty to the parties to apply, lest that order proves in the event insufficient to protect the defendant's legitimate civil rights. I propose therefore that no examination should take place before 31 July 2019 which will be a full month after the hearing on sentence before Davies J during which time one would expect his Honour would wish to have passed sentence. If there needs to be an extension of that time then the parties can exercise the liberty I will reserve.
For those reasons I will make orders in accordance with prayers 1, 2 and 4 of the summons dated 19 February 2019. Order 2(c) is a direction that the defendant comply with conditions which are set out in the schedule to the summons. Conditions of orders are dealt with in s 29 of the Act and include what might be referred to as prescriptive or mandatory conditions and discretionary conditions.
I am informed by counsel that they have not had the opportunity to discuss the appropriate conditions. Although this order will be suspended by force of law by reason of Mr Elmir's continuation in custody it is obviously essential as a matter of power that the orders including the conditions be entered by the 17 March 2019, which means really by Friday.
In the circumstances having given that indication I will direct counsel to bring in short minutes of order giving effect to my reasons and their agreement as to the conditions that should be imposed. Should counsel be unable to reach an agreement about those matters then they can exercise the liberty I reserve to apply at short notice.
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Decision last updated: 14 March 2019