State of New South Wales v Fayad - [2023] NSWSC 115 - NSWSC 2023 case summary — Zoe

NSWNSWSC

State of New South Wales v Fayad

[2023] NSWSC 115

Supreme Court of NSW|2023-02-15|Before: Sweeney J, Wright J

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Source facts

Court

Supreme Court of NSW

Decision date

2023-02-15

Before

Sweeney J, Wright J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

JUDGMENT

By summons filed on 25 November 2022 the State of New South Wales, the Plaintiff, seeks orders under the Terrorism (High Risk Offenders) Act 2017 in respect of the Defendant, Wassim Fayad.
Mr Fayad is the subject of an Extended Supervision Order, made under the Terrorism (High Risk Offenders) Act 2017 on 27 February 2021 by Wright J. That order of two years duration expires on 26 February 2023.
Therefore, the Plaintiff seeks an order pursuant to section 24(5) of the Act appointing a psychiatrist and a psychologist to conduct separate examinations of the Defendant and furnish reports to the court and an Interim Supervision Order pursuant to s 27 of the Act.
Mr Fayad opposes the application.
S 27 of the Act provides: "The Supreme Court may make an order for the interim supervision of an eligible offender… if, in proceedings for an Extended Supervision Order, it appears to the Court: (a) that the offender's current… 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."
The requirement in s 27 directs attention to the criteria for making an Extended Supervision Order under s 20 of the Act. S 20 provides: "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… under supervision…: (ii) under an existing Extended Supervision 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 New South Wales terrorist offender, (ii) a convicted New South Wales underlying terrorism offender, (iii) a convicted New South Wales 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."

I note also the terms of s 25 of the Act which states: "25 Determination of application for Extended Supervision Order (1) The Supreme Court may determine an application for an Extended Supervision Order: (a) by making an Extended Supervision Order, or (b) by dismissing the application. (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. (3) In determining whether or not to make an Extended Supervision Order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist… as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender reoffending over time, (h) the likelihood that the offender will comply with the obligations of an Extended Supervision Order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (iii) subject to an earlier Extended Supervision Order… (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere) and any pattern of offending behaviour disclosed by the history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence."

The Court said at [29]: "Paragraph (d) is a complicated provision…it is best to address its elements immediately. (1) First… this precondition to the power to make an Extended Supervision Order turns upon the Supreme Court being of the requisite state of satisfaction. (2) Secondly, par (d) of s 20… is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it… requires an enquiry to be made of the inherently uncertain future as to whether something will occur. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact… The ordinary civil standard of proof… is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". (4) Fourthly, that forward looking evaluation turns upon the premise that the eligible offender is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence ". It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relevant seriousness of the offending conduct. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (i.e. to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order."

The Defendant did not file any evidence but made submissions about the evidence filed by the Plaintiff.
The plaintiff relied on the following evidence and made the following submissions.
Mr Fayad is 55 years old.
The offence for which Mr Fayad was serving a sentence when the previous application for an Extended Supervision Order was made in late 2020 was an offence of aggravated break and enter with intent to commit a serious indictable offence of stealing. This offence occurred on 15 May 2013 when Mr Fayad, with two other people, used two stolen vehicles to crash through the glass front doors of a shopping centre in the early hours of the morning and attempted unsuccessfully to drive one of the cars into a collection of ATMs. They were not able to gain access to cash stored in ATMs. Mr Fayad was sentenced to 7 years imprisonment with a non-parole period of four years and nine months imprisonment. The sentence expired on 28 November 2020. Mr Fayad was not released to parole. During his sentencing proceedings for that offence Mr Fayad refused to stand up to acknowledge the court. His counsel explained to Woodburne SC DCJ this was because of his religious convictions.
When Mr Fayad was sentenced for that offence another matter was taken into account on a Form 1, being an offence of being an accessory after the fact to a shooting offence. The facts were that on 30 April 2013 a man was attacked by an unknown man and Mr Al-Ahmadzai, who was one of Mr Fayad's co-offenders in the attempted ATM offence, in the car park of a nightclub. The victim was shot a number of times by the unknown male. The victim suffered life-threatening injuries but survived. Sometime between the date of the attack and 17 September 2013 Mr Fayad became aware of the offence and informed Osama Toffic, who was suspected of being the unknown shooter, that he should leave the country because he was going to be arrested. On 16 November 2013 Mr Toffic was arrested at the airport attempting to leave the country.
In 2011 Mr Fayad committed an offence of assault occasioning actual bodily harm in company, which the parties referred to as "the whipping offence". The facts were that Mr Fayad administered 40 lashes to the victim with a looped coaxial electrical cable. Mr Fayad had been a religious mentor to the victim. Mr Fayad administered the lashes as a punishment for the victim having consumed alcohol and taken illicit drugs. Two men, by arrangement with Mr Fayad, attended the victim's home and the two men held the victim down while Mr Fayad administered the 40 lashes. As a result of the lashes the victim suffered severe bruising. The sentencing Magistrate stated that Mr Fayad was not an Imam or recognised religious teacher. For the charge of assault occasioning actual bodily harm in company Mr Fayad was sentenced by the Magistrate to two years imprisonment with a non-parole period of 16 months imprisonment. He appealed to the District Court and the sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Mr Fayad has since said about this offence, to Dr Katie Seidler, the psychologist who prepared a report for the previous proceedings, that he did not renounce the act but accepted he did not have the authority to punish the victim, and and in conversations with Corrections officers in August and September 2021 he said of this offence that he would not reoffend because his religion keeps him from doing so and acknowledged that the act was not appropriate under Australian law, but appeared to maintain his view that the act was not appropriate to be done by him because he was not a Sheikh or properly qualified person within his religion to administer that punishment.
Other conduct relied on by the Plaintiff in respect of Mr Fayad occurred in 2013. A man named Hamdi Alqudsi was convicted in 2016 of seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities contrary to the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The Plaintiff relies on evidence which it submits implicates Mr Fayad in providing the names of people to Mr Alqudsi, who were the people who were to travel to Syria and were the subject of one of Mr Alqudsi's offences. The Plaintiff also relies on evidence that Mr Fayad and Mr Alqudsi spoke about other men who might travel to Syria, that they used coded language in discussing people travelling to Syria, and conversations in which Mr Fayad indicated that he would provide $3000 to Mr Alqudsi in connection with Mr Alqudsi recruiting one of the men to travel to Syria. Mr Fayad was not charged with any offence in relation to that conduct.
The Plaintiff relies on Mr Fayad's criminal history to submit that it reveals that he has engaged in group-based violent conduct, has a capacity for organised criminal offending, associations with violent offenders, including offenders with extremist leanings, a willingness to engage in illegal and antisocial criminal conduct and a willingness to justify violent conduct on the basis of religion. In support of that submission, the Plaintiff relies on remarks made by Woodburne SC DCJ in sentencing Mr Fayad for the ATM offence that there was considerable planning involved in the offence in that a target was identified, stolen vehicles were employed, attempts were made to conceal the identities of those involved in the offence from CCTV cameras, a getaway car was destroyed by fire to eliminate the possibility that forensic evidence might be found, and the damage done was significant. The Plaintiff submits that those matters are of significant relevance to an assessment of the likelihood of Mr Fayad committing a serious terrorism offence and also of the harm that might be caused by such an offence. The Plaintiff submitted that Mr Fayad's risk of general or violent offending is relevant to the assessment of his risk of committing a serious terrorism offence.
The plaintiff relies on Mr Fayad's associations with the following people: Mr Suylaman Khalid, Mr Maywand Osman, Mr Ali Al-Talebi, Mr Hamdi Alqudsi, Mr Milad Al-Ahmadzai, Mr Zakariah Raad, Mr Raban Alou, Mr Malad Atai, Mr Ahmad Naizmand, Mr Bourhan Hraiche, Mr TL.
Mr Alqudsi was the person convicted of the foreign incursion offences relating to providing services to men who fought for terrorist organisations in Syria in 2013.
Mr Al-Ahmadzai committed the ATM offence with Mr Fayad. He was also convicted of an offence of threatening serious harm to a Commonwealth official, an ASIO officer.
Mr Zakariah Raad was one Mr Fayad's co-offenders in the assault occasioning actual bodily harm offence.
The Plaintiff's evidence is that the other people named visited Mr Fayad in custody during 2014 or 2015 and after that time committed terrorism offences; one of the men, Mr Ali Al-Talebi, was seen with Mr Fayad in 2018 and 2020 in the same correctional facility where they were both in custody; Mr Hraiche exchanged letters with Mr Fayad during 2016 and Mr Hraiche was later convicted of an offence of doing an act in preparation for a terrorist act in support of Islamic State.
Ms Chelsey Dewson acknowledged in her 2020 report that within the custodial environment, particularly within the area where high risk prisoners were managed, Mr Fayad had limited capacity to associate with people who were not identified as a risk in that regard.
The Plaintiff submits that there are indications Mr Fayad remains prone to developing associations that may exacerbate the risks he poses. This was said to be based in part on a download of Mr Fayad's phone conducted in May 2021 which revealed communication with a Ms Dakota Martin who has an extensive criminal history and that Mr Fayad had not disclosed this association. The Plaintiff relies on that at the same time Mr Fayad had been communicating with a Badoul Kertebani, who it is said does not have a criminal record but holds a firearms licence.
The Affidavit of Detective Senior Constable Bernadette Vella, affirmed 14 December 2020, set out requests by Mr Fayad to associate with people within the terms of his previous supervision order, which requests were refused, including a request to speak to a man with a view to considering marrying the man's sister, a refusal for Mr Fayad to speak to that woman because of relationships she had with other people, which police considered may expose Mr Fayad to a risk of coming into contact with people holding extremist views, and the refusal of a request for him to access an Australian Muslim marriage website, on the basis that Police could not confirm whether profiles contained correct information about people's identity and that the website may allow Mr Fayad to communicate with prohibited associates or unknown persons online.
Detective Vella's Affidavit also referred to the release from custody in September 2020 of a man named Amin Elmir, after which a direction was served on Mr Fayad prohibiting him from associating with Mr Elmir, and when Mr Fayad was served with the direction he asked Ms Brooke Maddock how Mr Elmir was and said "He is one of the good guys".
The Plaintiff also relies on Mr Fayad having breached his ESO in May and June 2022 by associating with a prohibited associate Mr El Achwah. Mr Fayad signed a direction on 28 November 2020 that included Mr El Achwah in his list of prohibited associates and a further direction was issued on 27 February 2021 identifying Mr El Achwah as a prohibited associate under Mr Fayad's ESO. The first breach occurred on 4 May 2022 at Bankstown Community Corrections office. At 10:53am Mr Fayad arrived and took a seat in the foyer of the office. Mr El Achwah entered the foyer a minute later and walked towards Mr Fayad. The two men embraced for 35 seconds, then spoke for a further one minute and eight seconds before Mr El Achwah signed in for a parole supervision meeting. The men continued to speak from a distance until Mr El Achwah was called into his meeting. Mr Fayad did not mention this interaction to his enforcement officer at the meeting that began a few minutes later. The facts of his second breach occurred on 1 June 2022. At about 11:31am Mr Fayad left the Community Corrections office at Bankstown. Mr El Achwah approached Mr Fayad on the footpath. Mr Fayad stopped and greeted Mr El Achwah. The men had a conversation for about 11 seconds. Mr Fayad spoke with his enforcement officer on two occasions that day and did not inform her on either of those occasions of his interaction with Mr El Achwah. On 27 July 2022 after pleas of guilty Mr Fayad was sentenced to a Community Corrections Order for a period of 2 years in respect of those two breach offences. The Plaintiff submits that Mr Fayad's breach of his ESO by associating with Mr El Achwah is highly relevant to the assessment of his risk because it indicates that he has no insight as to his high risk associates and how he is going to deal with high risk associates in the community. The Plaintiff submitted about a conversation on 7 July 2022 between Mr Fayad and Ms Brooke Maddock in which Mr Fayad talked about why he did not put Muslim people forward for vetting by the authorities, that this indicated an attempt by Mr Fayad to conceal associates from Police and appropriate authorities, and submitted there is a risk that if Mr Fayad is no longer under supervision he will continue to associate with such persons.
The Plaintiff places significant weight on the risk it submits is related to Mr Fayad's associates. The Plaintiff relies on Ms Dewson's opinion in her recent report that Mr Fayad's greatest risk lies with his associations, continued associations with people who are considered high risk by the authorities, and his lack of insight into the risk that such people present. The Plaintiff relies on what it submits is Mr Fayad's continued refusal to consider his associates high risk, or to respond to questions by his supervising officers and psychologists as to how he would identify a high risk person, and his refusal to notify Police about potential behaviour by people whom the Plaintiff characterises as high risk associates.
The Plaintiff relied on the report of Dr Katie Seidler dated 29 January 2021 in which Dr Seidler recounted that Mr Fayad had told her he was supportive of Sharia law but understood that Sharia law can only be administered by those who have authority and within an Islamic State and to that end, Mr Fayad recognised that Sharia law would not be appropriate or applicable in Australia, and that Mr Fayad told Dr Seidler he would prefer to live in an Islamic State but added that, in contrast to the Islamic State declared in Syria, any Islamic State that he would want to reside in would have to be "legit" and "authorised by the proper scholars".
I note that Dr Seidler said in her report that she asked Mr Fayad about his views on Islamic State. He responded that they were his brothers and therefore he supported them, however he said he believed that the group did not "do it the right way" because they oppressed and murdered Muslim people and to that end had transgressed the Quran. Mr Fayad told Dr Seidler that while he believes in what Islamic State believe in, that is the establishment of a pure Islamic State, he does not believe in the means by which they have sought to achieve and maintain this. Dr Seidler reported that Mr Fayad told her it was not his intention to be violent or engage in acts of terrorism in support of his religion. Dr Seidler said she challenged Mr Fayad about whether his views on that had changed since 2013 when he was seemingly involved in activities in support of Islamic State. Mr Fayad agreed and acknowledged that he was supportive of Islamic State and their activities at the time, however had come to disagree with the group because of the way they oppressed and harmed Muslim people.
I note in her report Dr Seidler said "Mr Fayad is a passionate Muslim and he is also an engaging, dynamic and likeable individual. As such he can likely be very engaging for others and at the time increasingly served as a religious guide and mentor who actively proselytised and was also actively involved in his cultural and religious community. Dr Seidler went on to say at [130] "It seems that in the years leading up to his offending Mr Fayad was becoming involved with an increasingly extremist group of people who held extremist ideologies that supported violence and ultimately terrorism". Dr Seidler said "In gaol Mr Fayad continued to hold an esteemed and privileged position which he furthered by preaching in the gaol, leading prayer groups and seeking to convert other inmates to Islam." She said "Now, Mr Fayad is back in the community after serving his full sentence and he expressed having positive future plans and goals to invest in his family and in his community. Mr Fayad denied being supportive of terrorism or violent extremist groups and he also claimed to now denounce his offending on religious grounds, stating he does not have the religious authority to act as he did. However, whilst Mr Fayad denied supporting violent extremism per se, it is evident that his personal ideology continues to be extreme, that he continues to associate closely with people who hold similarly extremist views and who condone violent extremism."
Dr Seidler used the Violent Extremism Risk Assessment Tool and expressed the opinion that "overall on the basis of [that tool] Mr Fayad is considered to present with a number of salient risks related to violent extremism with few if any notable protective factors. The primary domains of risk pertain to his extremist ideology, his strong and enduring associations with others who hold such an ideology and who have been involved in matters of national interest, including terrorism related offending, and Mr Fayad's access to extremist content. Further to this, Mr Fayad is considered to be vulnerable to the influence of his peers, who he considers to be "men of knowledge" and from whom he should learn and take guidance". Dr Seidler said "whilst I am not of the opinion that Mr Fayad would be responsible for an act of violent extremism or terrorism on his own, although this cannot be discounted, it is far more likely that his involvement in such activity would be through his connections with others who hold similar ideology and who seek to action such a plan. Based on the information available to me, it is suggested that Mr Fayad would likely provide support, encouragement, and some organisational assistance rather than be the person carrying out the act of violence himself. He would do this in conjunction with his strong and significant network of others who support an extremist ideology that justifies the use of violence."
The Plaintiff also relies on the report and opinions of Dr Andrew Ellis, forensic psychiatrist, dated 27 January 2021. Dr Ellis said in his report, having used the assessment tools and applied them to his interview of Mr Fayad, that Mr Fayad has a fixation or pathological preoccupation with idiosyncratic Islam and related doctrine, he frames his life by ideology and this ideology likely justifies violence, he does have personal grievances with the justice system and the State in general, he has a prior record of general criminal behaviour, he appears accepted by groups who are involved in terror related offences. Dr Ellis said Mr Fayad does not currently share the following features with people who have completed terrorist attacks: he has previously formed an intimate relationship, he does not have a major mental disorder, he has shown no research or planning to implement an attack, while he has been abusive towards authority figures he has made no specific threats towards them, he shows no strong identification with the warrior mentality of terror groups, although he may admire this in others it does not seem he aspires to it for himself." Dr Ellis said Mr Fayad "has no specific ideological goal at present. He does appear to have consistently taken up a mainly idiosyncratic view of extremist Islam and voices active rejection of modern views of women, sexual expression and democracy. He has tempered this from previous documents in that he now states he will defer to "men of knowledge" rather than his self-generated ideas about the religion, and would not initiate violence as a result."
Dr Ellis said "there was no information presented to indicate he has current contacts with violent extremists, however he has extensive contacts with them in the past. He indicated he would regain contact if they asked to. He would be a person who engages in risky group activity, given his personal vulnerability and past criminal behaviour in company. He has not expressed any formed plans for extremist action. He has not indicated he is prepared to die for cause".
Dr Ellis said "In terms of history, action and capacity he has a history of general violence. There is no information he has had specific paramilitary training. There is considerable evidence he could reconnect with funding sources or access to family or close associates who are involved in violent extremism."
Dr Ellis said "in considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence Mr Fayad displays a moderate number of the characteristics associated with terrorist-related violence. His tendency to deception is of particular concern, and renders assessment of factors based on his statements alone unreliable. His personality style is one that seeks dominance and conversely easily dominated. He would most likely be at risk of extremist violence if a person with a terrorist agenda targeted him and influenced him... He also derives satisfaction from influencing others, and his associations with persons engaged and interested in violent extremism could involve him in recruiting, fundraising and general support of terrorism, which are more likely than personally engaging in terrorist violence in his case."
The Plaintiff relies on Dr Ellis' opinion about Mr Fayad's tendency to deception to base its submission that he has engaged in impression management with experts, about which I will say more in due course.
Dr Ellis said from a psychiatric risk management perspective the highest risk for recidivist offending is the first two years after release from custody and a major factor in revising Mr Fayad's risk would be establishing a prosocial and meaningful routine in life, coupled with avoidance of antisocial or terrorist related persons.
The Plaintiff also relies on Mr Fayad having expressed views in support of an organisation Jahbat Al-Nusra, a proscribed terrorist organisation, in conversations with Corrections staff on 9 December 2020. He said he admired them as "they had not responded in kind to IS and he believed they were engaged in a righteous struggle and prayed that Allah would grant them victory in their struggle, in the jihad."
The Plaintiff relies on a Risk Assessment Report from Dr Chelsey Dewson dated 6 September 2022. Mr Fayad did not agree to participate in an interview with Dr Dewson and therefore her report was based on a review of file information.
Dr Dewson had prepared a report dated 28 September 2020 and a supplementary report dated 11 November 2020 for the previous proceedings, also based on an assessment of file material without an interview of Mr Fayad. Dr Dewson then assessed Mr Fayad as posing a high risk of violent extremism. Dr Dewson said the nature of the risk was that Mr Fayad "appears to be most at risk of indoctrinating and radicalising others, with a view for them to take up the jihad overseas or within Australia. While he personally has a history of violence, the risk of him personally engaging in acts of violent extremism is considered less likely, although not totally inconceivable. Given his social standing within his peer networks, both in the community and in custody, it is assessed that Mr Fayad is most at risk of taking an influential position within a group structure in which he, directly and indirectly, supports the actions of the appointed group leader, with the objective of furthering religious objectives, namely the jihad."
In her most recent report of 6 September 2022 Dr Dewson assessed Mr Fayad as at moderate risk of engaging in acts of violent extremism. She said "it is noted that this reflects some risk reduction since I last assessed Mr Fayad and his progression to date is noted. That being said, it is assessed that he continues to present with notable outstanding risk factors" which she identified as associating with people who hold extremist views or are considered high risk, rejecting parts of a democratic society, cognitive inflexibility, poor understanding and empathy for people outside of his group and a lack of insight into his risk and how to manage this in the future." She said those risks were relevant to Mr Fayad engaging in a serious terrorist offence in the future. She said on the basis of Mr Fayad's risk profile the most likely scenario (should he reoffend) would likely relate to him being a member of terrorist organisation, recruiting for a terrorist organisation or providing support to a terrorist organisation/individual who has intent to engage in terrorist activity. Given his history of violence it is possible that Mr Fayad could himself carry out an act of religious inspired violence however, this is considered less likely."
Dr Dewson noted that Mr Fayad was reluctant to discuss his ideology with supervising officers and did not consent to participate in an interview with her, such that the risk factors should be interpreted with caution. Dr Dewson noted that Mr Fayad had not been willing to denounce acts of violence of others and had only expressed regret in respect of his 2011 assault occasioning actual bodily harm offence on the basis of a perceived lack of authority to administer the punishment rather than denouncing his actions. Dr Dewson said that Mr Fayad likely still holds some ideology that justifies the use of violence, however this is contained to certain contexts. Dr Dewson said that in her opinion, Mr Fayad's greatest risk was his associations and his lack of insight into the risks that these individuals present and there was clear evidence of his association with people who are considered high risk by the authorities as reflected by his 2022 breach of his ESO. The plaintiff relies on Dr Dewson's opinion that "it doesn't appear that Mr Fayad is necessarily susceptible to influence but rather tends to display leadership characteristics within his interactions. Notably, however, it appears that he is more likely to espouse extremist ideology when in the company of others who hold these views and subsequently is more vulnerable when permitted to associate with known extremists clients." The Plaintiff relied on Mr Fayad not appearing to have the capacity to fund or organise large-scale operations but relied on Dr Dewson's opinion that his risk more likely relates to him being part of a terrorist organisation for which he would not require any substantial funds or skills, and her opinion that "Mr Fayad appears to be highly influential and remains motivated to school others on his religion. In the context of him not being on an order, I consider it likely he will return to associate with people who had been identified as "high risk" or prohibited associates... This is based on his lack of insight into what constitutes a risk and his apparent difficulty refraining from providing support for others. In the context of these unhelpful associations Mr Fayad's ideology may become increasingly radicalised and his overall risk profile may escalate rapidly."
The Plaintiff relies on a risk management report by Brooke Maddock, Senior Community Corrections officer, Terrorism High Risk Offender Unit, dated 10 October 2022. The Plaintiff relies on Ms Maddock's statement that "overall, Mr Fayad's response to supervision does not appear to present with a notable positive response to his insight into his criminogenic and risk factors."
Ms Maddock notes that for the majority of his time in the community Mr Fayad has complied with directions including those prohibiting his contact with specific people and prohibiting his attendance at specific locations but refers to his breaches of the order.
Ms Maddock said "while Mr Fayad appears to have difficulty in recognising high-risk associates or the impact of such contact, he has predominantly provided a positive response to his obligations of his ESO in this regard. She said,"Mr Fayad appears to remain fixed in his views related to religious ideologies." She referred to records, noting statements by Mr Fayad, including on 4 May 2022 where he stated "He will never turn his back on a brother" when discussing his likely response to awareness of extremist activity and to his response in October 2022 when served with an order prohibiting him from associating with Mr Amin Elmir, on Mr Elmir's release from custody, that he was "one of the good ones".
Ms Maddock said that Mr Fayad is "currently engaged with the Proactive Assessment and Intervention Service (PRAXIS) and considers this to be a positive support for him, that his engagement with PRAXIS has at times been disrupted by factors including Covid-19 and PRAXIS availability, that he did on occasion consider disengagement from PRAXIS but at no time did he formally disengage from that intervention and he has engaged with a religious support officer via PRAXIS in August 2022 for the purpose of religious mentoring, that he has ongoing engagement with this service and appears to have responded well to this support network."
Ms Maddock referred to the risk factors identified in Ms Dewson's report of 6 September 2022 being: a history of religious motivated violence, grievances towards authority including Community Corrections and NSW Police, connection with violent extremists and high-risk associates, his associations and his lack of insight into the risk that those individuals present, that he appears to be part of an extensive network of individuals who may have the capacity to plan and execute extremist acts, and his reluctance to discuss his religious beliefs when addressing his offending history. Ms Maddock also referred to another factor which the Plaintiff relies on which is Mr Fayad turning down employment opportunities, about which I will say more.
The Plaintiff also relied on the NSW Police Force Risk Management Report by Detective Vella which referred to the risk factors identified by Dr Dewson.
The Plaintiff relies on a report of Katrina Czerkies, chief psychologist within the Countering Violent Extremism programs of Corrective Services NSW dated 5 September 2022, which recorded that Mr Fayad had, as at that date, attended 13 sessions with PRAXIS, which small number was in part attributable to a seven month interruption to PRAXIS services because of Covid-19. Mr Fayad was said to have engaged with the therapeutic relationship and recognised the benefits of the therapeutic process. A further report regarding Mr Fayad's engagement PRAXIS was provided by Ahu Kocak, senior psychologist, on 11 November 2022 reporting that Mr Fayad had continued to engage with PRAXIS and had provided consent to engage with a religious support officer on 31 August 2022, having not previously provided such consent, and noted that Mr Fayad had started to explore his offending pathway and criminogenic risk factors.
In addition, the Plaintiff relies on Mr Fayad having failed to gain employment since his release from custody, acknowledging that his criminal history has contributed to this failure but submitting the failure can also be attributed to Mr Fayad's refusal to be vaccinated against Covid-19, which meant he was not eligible for many job opportunities, and that Mr Fayad had declined ostensibly suitable employment in part because he perceived it to interfere with his prayer schedule or religious beliefs. The Plaintiff particularised Mr Fayad's opportunities for and offers of employment. It appears from that material that one barrier to Mr Fayad's obtaining employment was not having a driver's licence, which he has recently obtained. He also made attempts to obtain a forklift license, but it seems he did not pursue this. Mr Fayad reported difficulty in obtaining employment because he was not vaccinated. One potential employer was not approved because the approving officers felt that people may attend that coffee and nut roaster who had inappropriate views. Mr Fayad complained that when he advised prospective employees of the ESO that inhibited his employability, as did his criminal history. He also complained that when employers required him to commence work immediately the approval process impeded him taking up such offers.
I note that Mr Fayad is 55 years old, is assessed as of low average intelligence and has only recently gained his driver's licence. It appears that he did reject some job opportunities on the basis that night shifts were inconsistent with his religious beliefs and morning shifts would interfere with his ability to pray at the required times.
In addition to Mr Fayad's not undertaking employment, the Plaintiff submitted that his lack of pro-social relationships is also a factor relevant to his risk to the community.
In addition, the Plaintiff relies on comments made by Mr Fayad in his premises which were covertly recorded. One such conversation referred to his supervising officer asking him how he would respond if he became aware of a plan to commit an act of extremist violence and Mr Fayad was recorded as saying he would advise them, refer them to the "men of knowledge", tell their parents, but would not "dob them in" to the law. The Plaintiff submitted that Mr Fayad repeatedly refuses to discuss his ideology by deferring to "men of knowledge" but does not ever identify who the "men of knowledge" are. It appears to me from an examination of the whole of the evidence that when Mr Fayad refers to "men of knowledge", which he does frequently, he is referring to people he regards as scholars or people who know more about the Muslim religion; it does not appear to me that his reference to "men of knowledge" is a reference to people engaging in terrorism activities. The Plaintiff submitted that the unguarded statements by Mr Fayad, made in his home when he did not know his statements were being recorded, that he would "never dob in a brother", are germane to the risk.
The Plaintiff relied on a conversation which was submitted referred to Mr Fayad saying that he could not judge the Lindt Café siege offender. The Plaintiff relied on a conversation Mr Fayad had in March 2021 with a supervising officer about accessing YouTube and extremist content and was recorded as having said he did not acknowledge the word extremist as it was for scholars to determine what is "extremist" behaviour and saying jihad was part of his religion and in the Quran.
The Plaintiff relies on Mr Fayad appearing to maintain very conservative views about the roles of men and women. The Plaintiff submitted that in a conversation in December 2020 Mr Fayad said to a provider of temporary accommodation that "even a beheading can be an act of purification", and submitted that that was a clear indication that Mr Fayad harbours a belief that extreme violence can be justified on religious grounds. The Plaintiff submitted Mr Fayad appears to harbour very conservative religious beliefs and there is evidence to suggest he rejects aspects of Australian democratic society. The Plaintiff relies on a conversation between Mr Fayad and his daughter in his home about Muslim men beating up a gay man as evidence of his condoning or promoting violence against homosexual people because of his religious views, contrary to the assertion made on his behalf that he would not act contrary to Australian laws.
The Plaintiff also relies on a conversation Mr Fayad had with someone on 28 June 2022 about a loophole in his order, that people could not enter his house but could come outside his house, they being people who were prohibited associates. The Plaintiff submitted that this indicated a desire to avoid the terms of his order and to avoid scrutiny. The Plaintiff submitted that this is relevant to the risk that Mr Fayad will continue to associate with his high risk associates.
The Plaintiff submitted that Mr Fayad's choice to not be interviewed by Dr Dewson could not diminish the weight to be given to her report, relying on a statement of Beech Jones CJ at CL in State of New South Wales v XX [2022] NSWSC 1583 that a refusal to participate in the preparation of a risk assessment report is a matter that exacerbates risk. Having considered that statement by his Honour in that judgment, I consider that his Honour's statement was about the defendant in that case, not a principle of law. However, I accept that in this case, Mr Fayad's unwillingness to be interviewed by Ms Dewson is a matter to be taken into account pursuant to s 25 of the Act.
The Plaintiff submitted that Mr Fayad may be engaging in impression management in his conversations with his supervising officers and experts. The Plaintiff submitted, relying on previous reports of Dr Ellis, Dr Seidler and Matthew Wade, psychologist, that Mr Fayad engaged in deception and impression management, that he had previously only engaged with PRISM psychologists in order to obtain parole and disengaged when he did not obtain parole, and submitted that any statements by Mr Fayad to his supervising officers or psychologists after he became aware of this application having been filed, suggesting he was willing to engage with psychologists and the religious support officer, could not be relied upon because they were statements made in the context of Mr Fayad's awareness of this application, he having experienced the process of such an application being made in respect of him previously. The Plaintiff suggested that a further part of Mr Fayad's impression management is his refusal to discuss his ideology with questioning supervising officers and psychologists.
The Plaintiff relies on a conversation Mr Fayad had in a PRAXIS session on 20 September 2022, the note recording "Fayad made a point to emphasise that when it came to engaging in militant jihad or militant conflict, although he sympathised with it, he was of the view he had no authority to tell people to participate or participate himself. He also emphasised that engaging in violence domestically (i.e. in Australia) is not legitimate nor permitted from his understanding." The Plaintiff submits that the rational inference from this statement is that while Mr Fayad states violence domestically is not permitted, there is no such limitation outside of Australia, which the Plaintiff submits is highly relevant when assessing Mr Fayad's future risk of committing a serious terrorism offence which can include acts not limited to within Australia. I doubt whether that inference can be drawn from that statement, given that it includes Mr Fayad being recorded as saying he was of the view he had no authority to tell people to participate or participate himself. The Plaintiff submitted that when Mr Fayad has said to supervising officers and psychologists that he acknowledges Australia is not an Islamic State and that he is aware of and acknowledges the laws of Australia, that that is a superficial engagement by him, again part of the process of impression management which the Plaintiff submits Mr Fayad has engaged in, submitting that Mr Fayad is not genuinely engaged with the supervising professionals but is in effect manipulating the process.
The Plaintiff submitted that while Mr Fayad's risk level appears to have reduced somewhat, only marginally since the decision by Wright J, that any reduction in his concerning behaviours must be viewed in the context of the significant constraints he has been subject to, combined with his knowledge that he was being monitored under the ESO. The Plaintiff submitted that Mr Fayad has chosen not to engage in discussions about his ideology, so there must be exercised a significant degree of caution in any conclusion that his beliefs have changed such that he no longer poses an unacceptable risk.
The Plaintiff relied on Dr Dewson's opinion "It appears that the defendant is still developing skills to lead a law-abiding life within the community, and removal of professional supports may act to destabilise him and diminish any progress made to date". The Plaintiff submitted "The removal of the supports and supervision provided under the ESO would work to undermine any progress that the defendant has made. More importantly, there is powerful evidence that the defendant maintains an ideological system that permits, encourages or promotes violence in support of religious belief, and supports violence in support of extremist ends. For those reasons, the Court should be satisfied if the matters alleged by the plaintiff were proven at final hearing those matters would establish that the defendant continues to present an unacceptable risk of committing a serious terrorism offence if not kept under supervision."
In summary, the Plaintiff submitted that in 2011 Mr Fayad engaged in violent conduct, ostensibly in connection with religious ends, in 2013 he was involved in the recruitment of a number of young men to travel to Syria to fight for proscribed organisations, that Mr Fayad has over a number of years maintained various associations with persons who have been convicted of terrorism or related offences or have otherwise expressed support for violent extremism and has on occasions refused to repudiate such associates or their activities, that he continues to harbour very conservative religious beliefs, that he maintains an ideological system that permits, encourages or promotes violence in support of religious belief and in support of extremist ends, that he has failed to gain employment in part because of what might be regarded as an "inflexible approach to his religious beliefs", that he has engaged with Corrective Services psychologists, though "it appears he has not developed significant insight into his risk factors", that he has been convicted of breaching his ESO as a result of his association with a prohibited associate on two occasions, that despite the reduction in Mr Fayad's assessed risk from high to moderate, the risk posed by Mr Fayad has not reduced to an acceptable level. The Plaintiff submitted "There is a significant prospect that, in the absence of ongoing supervision, Mr Fayad will return to his previous associations and activities." Accordingly the Plaintiff submitted that the material filed by the Plaintiff would, if proved, justify the making of a further ESO and that Mr Fayad continues to present an unacceptable risk of committing a serious terrorism offence.
In response, counsel for Mr Fayad submitted the following. Mr Fayad relies on the Plaintiff's acceptance that he has been largely compliant with the terms of his ESO and the risk he poses has diminished. Counsel submitted that Mr Fayad's conviction for the 2011 offence is distant and since then he has shown genuine insight into the offending, that his ATM offence was not terrorism related, that the allegations relating to his participation in the recruitment of fighters in 2013 is not supported by clear evidence, is alleged to have happened a decade ago and Mr Fayad was never charged in respect of that conduct.
It was submitted that Mr Fayad's past associations have ceased and were largely the result of him being in the custodial environment at the time, and that he presently appreciates who may be a high-risk associate and how to disassociate himself from such persons. The Defendant submitted that over the last two years he has regularly sought advice and clarification in order to minimise the risk of breaching his ESO, including refusing lifts if "brothers" stop in their cars and offer him such, and refraining from attending the mosque when a prohibited associate was to give the sermon and advising Brooke Maddock of this, and on another occasion, having left the mosque when he saw a prohibited person greet him outside the mosque.
It was submitted that, but for the breach for which he was convicted, which it was submitted was a minor breach, consisting of brief and unanticipated conversations, Mr Fayad has complied with the terms of the ESO. It was submitted he has obtained his driver's licence and is hopeful of finding suitable employment and has the support of his family.
It was submitted there is no evidence that the alleged influence Mr Fayad may have on others or that others may have on him would lead to the commission of a serious terrorism offence. It was submitted the court would not, even if the factual matters relied on were proved, be satisfied of the high degree of probability that Mr Fayad still poses an unacceptable risk of committing a serious terrorism offence. It was submitted he has already spent seven years in custody and over two years of supervision subject to onerous conditions.
The Defendant places reliance on Ms Dewson's conclusion that his risk of engaging inviolent extremist behaviour had decreased from high to moderate.
The defendant submitted that there is no proper basis on which the court could be satisfied to a high degree of probability that Mr Fayad poses an unacceptable risk of committing any of the offences relied on by the Plaintiff being:

Counsel for Mr Fayad submitted that the court would need to exercise caution in assessing the weight to be given to Ms Dewson's opinion because the basis for her opinion was hearsay evidence, opinions of others and material of which the reliability is questionable.
In respect of the reports of Brooke Maddock and Detective Vella, counsel for Mr Fayad submitted that it was noted that Mr Fayad resides in stable accommodation and remains in regular contact with his family, that he has complied with the majority of directions but for the brief association with Mr El Achwah which resulted in his conviction in July 2022, but overall it was Ms Maddock's opinion that Mr Fayad responded positively to his obligations in regard to associations.
In respect of the "loophole" in his conditions where he was able to associate with persons outside of his residence without approval of his supervising officer, it was submitted there was no evidence that Mr Fayad did more than stating that in a telephone conversation.
It was submitted Mr Fayad is engaged with PRAXIS and has during recent supervision shown growth and self-development. Counsel for the Defendant relied on his engagement with PRAXIS psychologists, and pointed out that in relation to his contemplated disengaging from PRAXIS that the note by Ms Czerkies of 21 April 2022 recorded that she had told Mr Fayad she had obtained a new role and he said he did not want to work with another psychologist and would disengage from intervention, and the records suggest that he did not disengage but continued with another psychologist, and the subsequent psychologist, Ms Kocak, records Mr Fayad's view that his engagement was positive and the notes suggest some positive developments.
As to the Paintiff's submissions about Mr Fayad's associates, it was submitted on Mr Fayad's behalf that the visits of those persons to Mr Fayad in custody occurred in 2014, before those persons committed the terrorism acts of which they were convicted, and that there was no evidence that Mr Fayad knew of their intended offending or was involving in their intended offending, that otherwise he was associated with people in the High Risk Management Correctional Centre where he was incarcerated. Counsel submitted that the circumstance that an offender has an association with another person who has committed a crime is not a reasonable basis on which it could be concluded that the offender is likely to commit a crime, particularly that some of the contact occurred when he was incarcerated with such people, and that Ms Dewson acknowledged that within the custodial environment, particularly the HRMCCC, Mr Fayad had limited capacity to associate with people who were not identified as a risk. Counsel submitted that evidence of Mr Fayad's previous associations should be given very little weight in the determination of the application before the court as they are not indicative of risk.
Counsel relied on the assessment of Matthew Wade, psychologist in November of 2018 of Mr Fayad's low range of cognitive ability, limited vocabulary and difficulty engaging in hypothetical abstract reasoning regarding his attitude, behaviours and circumstances relating to offending. Counsel relied on Mr Wade's opinion that Mr Fayad was not deliberately attempting to mislead him in answering questions, in response to the Plaintiff's submission that Mr Fayad was engaging in deception and impression management.
Counsel submitted that Mr Fayad's not having obtained employment was in part due to his having spent seven years in custody, having limited skills and a limited network of persons who might help him, and that his choice to turn down employment offers and that he has not secured employment is not relevant to the assessment of his risk to commit a serious terrorism offence.
Counsel submitted that the "loophole" conversation relied on by the Plaintiff, when read in context, included Mr Fayad saying that it was odd and open to interpretation that a person could not enter the house but could come outside but saying to the person whom he was speaking "That's why I prefer you don't come", and that in another conversation, he said to a person who had called him and sent him a text that he now had to "let them know"… "I'm not allowed to go, I have to do the right thing to tell them you know." Counsel submitted that Mr Fayad should be regarded as being naïve and honest when he said there was a loophole but regard should be had to the fact that he told the person not to come and the Court could not find he was being malicious or trying to breach his order in a substantive fashion.
Counsel submitted that the Court will not be assisted by Mr Fayad's criminal history to assess the likelihood of him committing a serious terrorism offence, that he has now acknowledged that he should not have committed the assault occasioning actual bodily harm offence in 2011, that it was not appropriate, was wrong, and outside Australian law. Counsel submitted that while there is a connection between Mr Fayad's religion and that offence, as his "misguided motivation was to assist the victim to abstain from consuming illegal drugs and alcohol", that of itself is not indicative of a risk that he will commit a serious terrorism offence. Counsel relied on statements Mr Fayad has made to Community Corrections officers and psychologists that he must comply with Australian law, and that Sharia law does not apply in Australia. Counsel submitted that assessments of Mr Fayad's risk of general reoffending or violent reoffending was not an assessment of his risk of committing a serious terrorism offence.
Counsel submitted that the evidence in relation to the 2013 offence by Mr Alqudsi does not support the involvement alleged by Mr Fayad and submitted the court should be slow to reach the conclusion that Mr Fayad is likely to commit a serious terrorism offence by reason of his past association with Mr Alqudsi in 2013, "prior to the moderation of the defendant's beliefs".
Counsel submitted that Mr Fayad's commission of the offence of informing the suspect in the shooting at the nightclub that he should leave the country to avoid arrest does not support the proposition that he poses a risk of committing a serious terrorism offence, and neither does the commission of the "ATM ram-raid" offence.
Counsel submitted, relying on the report of Dr Seidler, that Mr Fayad's views about and/or alleged support of Islamic State have changed over time and there is no evidence that he supports any terrorist organisation at the time of determining this application.
Counsel submitted that Mr Fayad's attitudes to women not according with mainstream attitudes is not indicative of a risk of him committing a serious terrorism offence, and that a conversation with his son in which he advised his son that he could not vote for religious reasons but still be fined does not indicate a lack of respect for Australian laws or democracy, but rather the exercise of a democratic right in accordance with Australian law to abstain from voting if he honestly believes it is part of his religious duty. Counsel submitted that Mr Fayad's conversations with his daughter about gay people does not mean that he will commit a serious terrorism offence, and that there is no suggestion he promotes or condones violence against part of the population.
Counsel submitted that Mr Fayad's beliefs have evolved over the last decade and he has accepted that he is bound by Australian law, that to offend violently as he has done in the past is wrong and that his religion does not permit him to implement Sharia law. Counsel submitted that even if Mr Fayad has extremist religious beliefs it does not lead to the conclusion that he poses an unacceptable risk of committing a serious terrorism offence.
Counsel submitted that Mr Fayad's acknowledgement that Australian laws come first and his behaviour under the ESO should be taken into account and that the Court should reject the Plaintiff's submission that Mr Fayad poses an unacceptable risk of committing a serious terrorism offence and therefore decline to make the orders sought by the Plaintiff and dismiss the application.
In considering this application both parties and I agree that the approach is not to consider whether circumstances have changed or the risk has ameliorated since Wright J made the Extended Supervision Order two years ago but that I must apply the test anew to the evidence presented before me.
It is important to focus on the test in s 27 of the Act for making an Interim Supervision Order that "the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order". I take into account that I must have regard to all of the material which has been presented in these proceedings in the five volumes of material tendered, that the decision cannot be made on the basis of speculation, and that inferences sought to be drawn from the evidence must be drawn on a proper basis.
It is important to focus on the test in s 20(d) to which s 27 refers the court, as elucidated by the Court of Appeal in Naaman. That includes that the task is not to consider whether the State has demonstrated what a person has done in the past but the test is forward-looking, to enquire as to whether something will occur in future; that the issue posed by the statute is not resolved by mere speculation; that the court is required to determine the risk of the person committing a serious terrorism offence if not kept under supervision under an order, which requires assessment of the risk of the likelihood of an offence being committed and the relevant seriousness of the offending conduct; and the court is then to determine whether such a risk is or is not unacceptable.
The risk assessed in 2020-21 and more recently by all the experts who have provided reports on the topic is that Mr Fayad would most likely influence, indoctrinate, radicalise or support others to engage in terrorist acts rather than him engage in acts of violence himself. The Plaintiff relies on opinions of Mr Fayad's supervising officers that he appears to be a part of an extensive network of individuals who may have the capacity to plan and execute extremist acts. To this end, the Plaintiff places great weight on people whom it asserts Mr Fayad is still an associate of, who have been and continue to be engaged in or inclined to commit terrorist acts.
In my view the evidence does not support the assertion that Mr Fayad is part of an extensive network of individuals who may have the capacity to plan and execute extremist acts. Taking the evidence at its highest it shows that Mr Fayad has known, or knows and has had past contact with, people who have committed terrorist offences, other than Mr Alqudsi after they had visited Mr Fayad in custody. The evidence does permit that he holds a positive view of Mr Amin Elmir, or at least did when that man was released from custody in September 2020, and that he engaged with Mr Achwah when they met, seemingly by chance, at the Bankstown Community Corrections office on the two occasions in May and June 2022, the subject of Mr Fayad's breach of his Order. The circumstances of those apparently chance meetings, while supporting a conclusion that Mr Fayad is prepared to engage with people he knows when he sees them, does not permit of a conclusion that Mr Fayad is in contact with past associates, or waiting to be free from supervision to resume contact with past associates who have committed terrorism offences or hold terrorism related views and does not permit a conclusion that there is a significant prospect that if Mr Fayad is not supervised he will be resume previous associations and activities. The assertion of continuing associations with people inclined to terrorism or that Mr Fayad will resume associations with such people does not rise above speculation.
Apart from the breaches of his ESO Mr Fayad's last offence occurred 10 years ago. It was not a terrorism offence. To the extent that the sentencing Judge found it showed planning, Mr Fayad was not the only offender and the sentencing Judge did not make a finding that he did the planning and it, the attempted ATM offence, was a different type of enterprise and ultimately unsuccessful. His asserted conduct with Mr Alqudsi, taken at its highest as must be done, occurred 10 years ago. The 2011 offence, which did have religious connotations, has not been repeated. I accept that Mr Fayad has not completely repudiated committing such an offence for religious reasons but he has not committed such an offence again.
Mr Fayad has, apart from two minor breaches, complied with his ESO. I do not consider that his compliance can be entirely disregarded as a cynical attempt at impression management. I accept that Mr Fayad has at times been reluctant to discuss what the Plaintiff calls his ideology and he calls his religion.
Care must be taken to not confuse his support for his religious beliefs with support for terrorism. Mr Fayad holds conservative religious beliefs and expresses views about women and homosexual people which the community would find unacceptable. He has in the past expressed support based on his religious beliefs for engaging in terrorism activities, but according to the experts he has moderated those views and acknowledged that he is subject to Australian law. Even if I were to discount those statements by Mr Fayad on the basis the Plaintiff submits I should, that they are all him saying what he thinks his interviewers want him to say and attempts by him to manipulate the assessment process and deceive them or manage their impressions, evidence that Mr Fayad is resistant to some aspects of his supervision and continues to hold religious beliefs and expresses those beliefs to his family in what he believes to be private conversations does not form a basis for satisfaction that he is at risk of committing a serious terrorism offence if not kept under supervision.
I have considered the material presented by the State, considered the State's case at its highest, having regard to the safety of the community as the paramount consideration. I am not satisfied, looking forward as I am required to do, that the State has shown to a high degree of probability that Mr Fayad poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an Extended Supervision Order.
Therefore, applying ss 24(7) and 27 of the Act, not being satisfied to the requisite standard that the matters alleged in the material relied on by the Plaintiff would, if proved, justify the making of an Extended Supervision Order, the State's application for the appointment of a psychiatrist and psychologist to examine the Defendant and the State's application for an Interim Supervision Order are dismissed.