State of New South Wales v Gavin

"there is this thing in the bible that says; kill everyone to the last, if you are going to live by the sword then die by the sword if you are going to die take a fucking few of them with you, if you are going to kill yourself because you haven't seen your kids, take a couple of them with ya" 6 9 Mar 2020 Penrith Shooter Truth is stranger than fiction "If you are going to fucking shoot at Police, make sure you've got a semiautomatic weapon. Technically their weapons are automatic, because they fire continuedly. It's called an automatic pistol. If you are gunna go after Police, don't walk around like an idiot waiving a gun, plan what you are gunna do, have an entry and an exit strategy, you got to plan the fuck out it" 7 9 Mar 2020 Baal Turn The's Thyn Mind…Im honoured to see Ball is watching my clip…I'm a man "And only through sitting there in pure fucking rage and wanting to just go out there and stab one of these cunts with a fucking screwdriver, anything you get your hand. It's the only thing…Unplugging this shit is the only thing that stops me from going off the fucking rails. It's the only thing that stops me from doing something fucking stupid." 8 12 Mar 2020 NSW POLICE Defathering to Fuck the little ones AKA Freemasonry…. "They create a mental torture…they stick you in gaol, so you don't have anything. They are using paper to fucking harm you…the State when you do something wrong, they bash you, they throw you to the ground, the electrocute you, they fucking hold you, they put you in cells. Why can't we do that? We are the fucking law" [showing pictures of and talking about the Parliament House in Canberra] "what we need to do is fuck this off and people need to wake up" 9 14 Mar 2020 Emergency [in relation to mobile towers] "basically you are wasting your time going around protesting just turn up and burn the tower down" ([while discussing footage of a man who took down mobile towers in Western Sydney in 2007] "what they should have done was use a hole saw and some petrol and hole sawed a hole into the box and fill it up with petrol, something simple - some diesel, some petrol and just sprayed it in and … it is what people do in the criminal underworld, just spray it in and light it up, see what the idiot lebs do or the people in the city they use petrol - don't use petrol use a mix, diesel petrol mix - if you use petrol and it vaporises straight away this thing will turn into a bomb and you will get blown away." (iv) [in response to the man who took down the mobile towers in Western Sydney in 2007 saying he made some rash decisions] "it is a rational decision, someone is poisoning you, you have a right to stop it, you have a right to neutralise it and then you have a right to go and kill the one who is trying to kill you - under common law, under the rules of the books.. … if someone is trying to kill you, you have a right to neutralise the threat…". 10 16 Mar 2020 Jewish Caball Brendon does a great intro... Masonic Courts illegal conversion [in the context of a discussion where Mr Gavin asserts that courthouses are masonic temples] "it is a totalitarian takeover, these buildings need to be burnt down…go around the side turn the water off, then get a battery grinder thing and you cut the handle off the fucking thing, so you turn the water off and you cut the handle off right at the top so they can't get pliers on the thing then you burn these fucking temples, these satanic temples down - this is illegal - there is no coat of arms here…." "Brendon talks about the Courts being Jewish Cabals. There is your Gosford Court, go and burn that thing down alright, that is a Masonic Temple." 11 14 Apr 2020 NYC ICU Head Doctor. COVID19 not causing A.R.D.S. Trivalent/Quuadravalent has traces of Corona Virus "you need to find these cunts and fucking hack them to pieces. There is no other way. You have Tony Abbott say that if he is threatened by someone they should be shot. I mean, Tony Abbott is a fucking paedophile. The way he moves his mouth and talks are the sort of mannerisms I'd expect from a paedophile looking at a child". 12 25 Apr 2020 Commonwealth of Australia registered to a bankrupt…Fraud……… "this is why we need to build gallows and hang any cunt who speaks legal vomit. Just hang any cunt who speaks legal vomit." Release name of police officer 13 9 May 2020 Deleted Penrith Court House Clip from Channel "When I was in the Army and they said we'll implement aid to civil power protocols all that kind of stuff I kinda said well no we are a defence force we protect Australia we don't attack people within it and one of the officer's said you'll do what your told and I said that's why officers get shot in the back of the head in war because you don't protect the people you are supposed to look after… I said we are a defence force and we protect Australia nothing else… the only thing the defence force can be used for is disasters…and for an act of terrorism from a known terrorist organisation…but there aren't any terrorist organisations…" "one of the officer's said you will do what your fucking told and I said that's why officers get shot in the back of the fucking head, sir, in war, because you don't fucking protect the people you're supposed to look after" "Well you don't fucking take a knife to a gun fight, you don't take fists to a fucking gun fight, and you know if you are in for a penny you're in for a pound you know. If you are going to shoot one copper, why not shoot a whole fucking Police Station worth … that's why the whole Penrith Police station … this guy used a pump action shot gun and why …. because police wanted to get rid of pump action shot guns. That's the only reason… You walk up to a police station, you sit in a van, you open the door, and bang, you shoot him in the fucking head, bang you shoot the next guy in the groin… he drops righ… if you're gonna do this, plan…. If you are going fire at police … plan what you are going to do, plan an entry and exit strategy… that's just common sense." 14 10 May 2020 SYDNEY POLICE - NSW POLICE FORCE Child Trafficking "we should be shooting these fuckers in the street, there's no question" "This guys got small mans syndrome, this woman is on a power trip, and this is bizarre right. Uhm we should be shooting these fuckers in the street, there is no question, right." 15 16 May 2020 Victorian Bank stealing a paid for property… Making a family with a new born homless. "If I catch the cunt, I literally, I, I will gut the fucking area commander fucking peodoph- I'll find the cunt and I'll gut you Tracey Ford or Tracey Stone or whatever the fuck you call yourself if you guys fucking zap me one more time with your fucking little free masonic shithole that's operating four houses down." 16 31 Jul 2020 Prison-Escape. Saga Continues, drugged tortured mother tortured, alienated… Lies after lies. "if I get bricked in the head again and left for dead and the police cover it up, I'm gonna gut the bitch". Claims that is a warning. Claims he has a 40cm knife and if anyone comes into his house he is going to "carve a piece off them".

1. An additional schedule of extracts was also relied upon by the State as follows: No. Date Title Statement(s) 1 27 Jan 2020 Coronavirus Patent application 2015 application approved 2019 [referring to people who the defendant believes invented COVID-19] "'You need to find these people, where they live in their homes and go and confront them". The defendant goes on to state their names and the area codes for the locations in which they live in the UK. 2 3 Feb 2020 NSW POLICE FORCE Radio Frequency coming from a Phorensically qualified womans home. aka Cop. "The only way to stop crime is to treat harm with harm, so when rape someone get a baseball bat, someone breaks someone's arm, break his arm." "I am a sovereign citizen" 3 14 Feb 2020 Trespass NSW POLICE FORCE trespass every day on your body. Injury, time and freedom. "When you see the word law, it means you've caused harm, not statute, it means you have caused harm. Now if someone is causing you harm and you plan to go and… they're threatening to immunise your kids, and you plan to go and murder them. That's natural law, that's common law. Someone is planning to harm you, you have the right to go murder them to protect your family. If they're going to murder your son or murder your daughter, you have the right to fucking murder them okay because that's law, that's common law. It's called natural justice. I have the right to kill the man who's trying to stick a knife in my throat just as I have the right to stick a knife in that fat cunt who fucking um, em, manipulated and uh, used NLP? on my ex to fucking split the family. You can't fucking stand there and say you got the right to lock someone up for 20 years, for financial gain and break every fucking law in the walk and that's common law. The entity calling itself the State is sitting illegally, they are not government and they have no right to govern your mind." "Anarchy, they keep fucking us over, there's going to be repercussions" 4 25 Feb 2020 Lex from Rex his Dux mentis for your Mens Rae.... "that is a fucking death sentence. right. that's a death sentence for a coppa. you get 12 (?) people to grab him, he's gone." "every magistrate and judge in Australia basically needs to have their head removed from their shoulders, right. its as simply as that. Its not a death threat, its not a fucking thing they're committing treason and when you've been accused of treason, Magistrate Day, Magistrate Still, its a death sentence. they're doing it illegally. they know it, they have no lawful excuse because they are legally qualified, we're not, we're learning this shit." 5 4 Mar 2020 NSW Bush Fires Chemtrails.................... see Megan F for original clip. "When this shit hits the fan, turn around and put a bullet through your fucking boss's head" 6 7 Mar 2020 Revelation Tribulation Apocalypse Lamb to the slaughter. lamb of God Is a Lamb. "revelation means the destruction. In latin it means the apocalypse. The destruction comes when people wake up. And people have woken up so they're about to destroy you." 7 14 Mar 2020 Australians are the dumbest cunts on the Planet "Australia is about to have an uprising" "Agenda 21 is the year 2021, and I think it will be September 11 this year" 8 12 Apr 2020 BDM Birth Certificate Review AAS 23, AASB 1040 [referring to an ATO call] ""I'll find you, I'll stand out the front, take a week off and I'll go "excuse me" as everyone walking out and I'll identify your voice and I'll cut your fucking throat if you ever ring me again." 9 12 Apr 2020 Commonwealth of Australia and its Citizens are Deemed Enemy of the State of the U.S. [in relation to a call from community corrections] "...community corrections officer worker from Penrith said "don't "don't you want to be part of a society" and I hadn't seen my kids in um - hadn't seen my son and daughter in fucking 3 years. And every time I hear shit like "don't you want to be part of a society" I want to fucking stab their eyes out of their fucking head. There aren't words. I mean I want to carve them up … I want to carve them up while they're alive." 10 15 Apr 2020 5G and Trespass of R.F. Removal of Nuance. Abatement. Trespass as the body is thine property [The defendant mentions that people on Facebook ask him how] "how do we take down these towers" [referring to 5G towers]. The defendant says "fucking … attack the cooling system on there, fire the box, burn the cables, there's a multitude of things. Just think of a structure, how would you take down a structure". 11 16 Apr 2020 A.T.O. is not a Legal Entity and does not define Income Tax. They cannot threaten you. "Whenever a cop gets shot, it makes me smile". [In relation to a named individual] "take an axe to this cunt and chop his fucking head off". 12 27 Apr 2020 Gavin talking about eugenics conspiracies, dangers of various types of vaccines [unclear what group of people the defendant is referring to, may be the medical profession] "It's a horrible thing to say but we have to start killing these bastards. We literally have to start killing these bastards." 13 3 May 2020 Born Dead No Standing NSW POLICE FORCE Privately Owned. Langue... [in relation to the belief that COVID-19 is being manufactured to "fry" mankind] "These viral labs need to be shut down, blown up and torched." 14 19 May 2020 Vitiman C cures Polio Myelitis in 1937 CSIRO, Polio is a Vitiman C deficiency. [talking about a doctor who wanted to give him cortisone] "I'm going to knock you out before you call the police and probably give you a touch up for good measure". 15 19 May 2020 Breech of the Peace. Breech of COVID 10 Privately owned SEC registered Company. "...people who have harmed me, they've got something coming to them.." … [re: police and people goading him to do things which would cause him to be tucked away] "..I would rather fuck with them on a large scale then a small scale'"

1. These posts were all removed from YouTube by Mr Gavin after his release from custody at the expiration of his non-parole period of imprisonment for the index offence. Except for the index offence material, none of these posts has been the subject of a criminal charge or conviction.

Statutory preconditions

1. I am satisfied that Mr Gavin is an eligible offender as required by s 20(a) of the Terrorism (High Risk Offenders) Act. He was in custody or under supervision at the time the original application for the order was filed while serving a sentence of imprisonment for a NSW indictable offence.
2. I am also satisfied that the State's application was made in accordance with Part 2 of the Act: ss 20(b), 23.
3. I am not, however, satisfied that Mr Gavin is a convicted NSW terrorism activity offender. This is for the following reasons.
4. Before Mr Gavin can be a convicted NSW terrorism activity offender, in accordance with s 10(1)(c), he must at least be making or have previously made a statement, or must be carrying out or have previously carried out an activity, advocating support for a terrorist act or violent extremism, or have or previously have had a 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. It is uncontroversial that Mr Gavin does not have and has never had a personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for a terrorist act or violent extremism.
5. Section 10(1A) provides further clarification of s 10. Mr Gavin, however, has never made a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. Nor has he used or displayed images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. Presumably, the State maintains that Mr Gavin has made 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.
6. The underpinning preconditions to Mr Gavin's qualification as a convicted NSW terrorism activity offender continue to be that the relevant "action is done or the threat is made with the intention of advancing a political, religious or ideological cause" or that he advocates support for violent extremism.
7. The concept of a terrorist act for the purposes of these proceedings is not some vague, inchoate and ill-defined idea operating at large: the Terrorism (High Risk Offenders) Act specifically incorporates the definition of terrorist act from s 100.1(1) of the Criminal Code. To the extent that the State relies upon Mr Gavin having advocated support for a terrorist act, it must demonstrate or establish that the acts or threats done or made by him were "made with the intention of advancing a political, religious or ideological cause".
8. In my opinion, nothing said or done or threatened by Mr Gavin appears in any way to be related to, or informed or influenced by, the advancement of a political, religious or ideological cause. None is specifically or even generally referred to and none can be said to be incorporated by reference. Doing the best I can, Mr Gavin's words appear to me to be no more or less than an angry and discursive rant about unspecified and unrelated grievances apparently triggered by relationship difficulties or his experiences with the police. Neither is related to religion or ideology. Nor could it be said that any reference to the police amounts to the advancement of a political cause. Disaffection with the police or with a particular member of the police force, or even the making of threats against the police, however reprehensible, seems in the present case to be far removed from the advancement of some related political cause. That is so notwithstanding the fact that Mr Gavin made the statements which constituted a criminal offence for which he was convicted.
9. Can Mr Gavin be said to have advocated support for violent extremism? Considerable assistance in understanding that expression is provided by the judgment of Basten JA in Hardy v State of New South Wales [2021] NSWCA 338 at [28] - [30]: "(c) Second issue - scope of 'violent extremism' 28 The final matter, which was not dealt with in quite the same terms in the judgment below, involved a submission that - 'the undefined term 'violent extremism' does not focus solely on an act or threat of violence. By itself, no act or threat of violence, no matter how graphic, intense or confronting, will amount to violent extremism as that term is understood in the framework of the Act. Instead 'violent extremism' within that framework requires the commission, or threat, of violence alongside a broader ideological intention with terrorist connotations.' That conclusion was said to follow from the object of the Act and from the definition of serious terrorism offences in s 4(1) being 'inextricably bound up with' the definition of 'terrorist act'. It required that the undefined term 'violent extremism' be read down so that it was subject to the criteria in the definition of 'terrorist act', including that the act be done 'with the intention of advancing a political, religious or ideological cause', in par (b) of the definition of 'terrorist act'. 29 There are two aspects to this submission. On the one hand, it would be erroneous to construe an undefined alternative as covering the same territory as the defined term. The words 'or violent extremism' were introduced by amending legislation in 2018, which was apparently intended to broaden the coverage of s 10 and s 20(c). The first justification for the proposed reading would reduce the additional words to mere surplusage and tends to subvert the apparent purpose; it should not be accepted. 30 Secondly, however, there is support for the submission in the language itself. The concept of 'extremism', in its ordinary usage, refers to extreme views, usually of a political, religious or ideological character. It may be accepted that the term 'violent extremism' does not refer to any form of violent behaviour, but rather a violent form of an ideology. Whether it extends beyond the scope of the definition of 'terrorist act' need not be determined. It is sufficient that even if it does not so extend, the submission does not demonstrate error: the reasoning of the trial judge was directed expressly to the elements of ideological fanaticism revealed by reliance on the SCM material and the unequivocal focus on senior politicians."
10. In the present context, I accept that Mr Gavin's words suggest or deal with extreme violence. By way of example, that is the reason why the words forming the basis of his conviction constituted a New South Wales criminal offence. None of his words, however, suggests or raises the spectre of violent extremism as opposed to extreme violence. Extreme violence is not the same as violent extremism: violent extremism is the beliefs and actions of people who support or use violence to achieve ideological, religious, or political goals. That may include terrorism, as well as other forms of politically motivated and communal violence, but is not necessarily or always co-extensive with terrorism. In the words of Basten JA, "the term 'violent extremism' does not refer to any form of violent behaviour, but rather a violent form of an ideology". Mr Hardy's behaviour was characterised as "ideological fanaticism" revealed by his "unequivocal focus on senior politicians". Mr Gavin's words are not susceptible to a cognate interpretation in the circumstances of this case.
11. Although it is unnecessary to consider it, having regard to the view I have formed about whether anything Mr Gavin has said concerns a terrorist act or violent extremism, assessment of whether he is a convicted NSW terrorism activity offender also raises the issue of whether his statements are "advocating support for any terrorist act or violent extremism" (s 10(1)(c)) or are "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" (s 10(1A)(iii)). Although Mr Gavin has used words that include or contain references to extreme violence, they do not in my opinion "advocate support" for anything, and certainly not terrorist acts, which involve the identification of a political, religious or ideological cause. The fact that the subject matter of Mr Gavin's postings may be extreme violence, is alone insufficient to amount to support for it.
12. I am accordingly not satisfied that Mr Gavin is a convicted NSW terrorism activity offender.

Unacceptable risk of committing a serious terrorism offence

1. Notwithstanding the view I have formed, it remains necessary to proceed to consider the question raised in these proceedings by s 20(d) of the Act.
2. I can only make an extended supervision order if I am satisfied to a high degree of probability that Mr Gavin poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order: s 20(d). I am not required to determine that the risk of committing a serious terrorism offence is "more likely than not": s 21.
3. The elements of s 20(d) were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 and summarised at [29] as follows: "[29] Paragraph (d) is a complicated provision, and in light of the State's submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately. First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. Secondly, par (d) of s 20, unlike pars (a), (b) and (c), 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 (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. 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. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be 'to a high degree of probability'. 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 relative seriousness of the offending conduct. 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. 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 a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order." [Emphasis added]
4. "Serious terrorism offences" are defined to be offences against Part 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment: s 4(1) of the Terrorism (High Risk Offenders) Act. Those offences include engaging in a terrorist act (s 101.1 of the Criminal Code); doing acts in preparation for, or planning, a terrorist act (s 101.6); membership of a terrorist organisation (s 102.3); recruiting for a terrorist organisation (s 102.4); getting funds to, from or for a terrorist organisation (s 102.6); and providing support to a terrorist organisation (s 102.7). These offences cover a very broad range of conduct and do not, for example, require the commission of an act of violence. Mr Gavin has neither committed nor been charged or convicted of a terrorism offence.
5. Although it is not entirely clear having regard to the comments of the Court of Appeal in Naaman (No 2) at [29], later authorities have eschewed a requirement to specify the precise "serious terrorism offence": State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [189]; State of New South Wales v Alam [2020] NSWSC 295 at [129].
6. The matters of primary importance to the Court's determination in respect of s 20(d) are informed by some of the mandatory considerations for the making of an extended supervision order in s 25(3). The paramount consideration in determining whether to make an extended supervision order is the safety and protection of the community: s 25(2). The impact of an extended supervision order on an offender's liberty may be relevant to the Court's exercise of its discretion to make the relevant orders but is not to be considered in determining whether the preconditions are satisfied.

Risk Assessment Report

1. The State provided detailed written submissions with respect to a Risk Assessment Report dated 26 November 2021 that has been prepared in relation to Mr Gavin. The following summaries are taken from those submissions. Mr Gavin did not participate in the preparation of the report. The author of the report made the following observation: "Mr Gavin presents as an individual who has progressed from being at risk of radicalisation to an individual who is now radicalised to an extreme ideology. Whilst he has not engaged in an act of ideologically motivated violence, he has verbalised threats and detailed methods of how to achieve mass impact outcomes. He has the network and capability to either incite others to or engage in an independent act of violent extremism, politically motivated violence or terrorism."
2. In relation to Mr Gavin's ideology, the report contains the following comments: "[53] Mr Gavin's individual grievances towards the system and a lack of life purpose and direction seemed to result in the use of online forums to seek support, knowledge and retribution. The more time that he spent online the more he was exposed to ideological influences. Mr Gavin eventually found an ideological framework for conceptualising his individual grievances and eventually transitioned from the role of a 'follower' to an individual who is perceived by others as an 'authority' figure. Mr Gavin openly acknowledged that he had been … 'living this for 20 years' and 'I've been doing this for 3 years' and that he hasn't worked during this time because he has been 'looking up case law for court…' and 'accessing statutes'. [54] Over time, he has also been exposed to other online, and social media movements. He subsequently formed a particular opinion about and attitude toward others (i.e., authority) and the world (i.e., governments) that has developed into an entrenched and steadfast ideology that enables him to legitimatise his grievances and justify the use of violence under certain circumstances. Mr Gavin has more recently restricted his online presence, and consequently significantly reduced his access to information and a likeminded social network. Whilst there is evidence of this behavioural shift, he does not appear to have engaged in the process of disengagement. This is demonstrated by a persistence in maintaining his beliefs about others (i.e., authority) and the world (i.e., conspiracy theories) despite indirect and formal interventions (i.e., mental health treatment; community-based supervision). It is hypothesised by the author that the change in online behaviour directly relates to Mr Gavin's current parole order. It is noted that his compliance with mental health intervention may have also assisted in containing the fixation albeit not changing his beliefs."
3. The Risk Assessment Report author applied the Violence Risk Scale to Mr Gavin, indicating overall that his risk of violence fell within the medium category of risk. She notes that Mr Gavin has a "history of interpersonal aggression and violence towards others (i.e., strangers, family, partners, authority)" and that his "long standing low frustration tolerance and difficulties managing his anger appear to have perpetuated his ongoing use of verbal hostility and aggression towards others". The author notes that referrals to interventions aimed to increase his ability to resolve emotional dysregulation have been to no avail, and that when Mr Gavin was offered aggression counselling "he remained adamant that it was not relevant or required". The author goes on to say: "[82] Mr Gavin is also observed to have continued to lack insight into his aggression and violence. He has remained unwilling to acknowledged [sic] that his behaviour has been unacceptable or to recognise the harm that it causes others. Mr Gavin often justifies his use of interpersonal aggression or externalises responsibility onto others (i.e., 'The only reason I'm in here is because I made a YouTube clip. It was meant to be a warning, but it was taken as a threat'; '… apportioning blame to the police for his current predicament'). This presents as a significant barrier to him being able to understand and explore his aggressive and violent behaviour and offending."
4. Importantly, at [84], the Risk Assessment Report author notes that as the assessment was completed on the basis of file information only, it is possible that the assessed level of risk is an under or over representation of the likelihood of future violence.
5. When considering risk promoting factors, the Risk Assessment Report author discusses Mr Gavin's ideology as follows: "[87] Mr Gavin has previously been described as espousing a sovereign citizen ideology. This author notes from the available information that he presents as an individual who appears to espouse an ideology that justifies the use of violence, under certain circumstances (i.e., self-defence against perceived harm). His ideology appears to be comprised of 'freeman on the land' or sovereign citizen ideology (i.e., anti-authority, anti-system, anti-establishment and anti-government) as well as other narratives that could be considered synonymous with pro-gun ownership, anti-vaccination, anti-feminism and other online socio-political and conspiracy movements (i.e., QAnon). [88] Mr Gavin currently believes that the structure of parliament was not legally elected and has no constitutional authority. The government, therefore, is an illegitimate, corrupt, and fraudulent entity that is privately owned and run by paedophilic, cannibalistic and murderous freemasons. He often refers to these individuals as 'malignant cunts', 'malignant grubs', 'masonic grub cunts', or 'parasitic organisms'. Instead, he espouses the original constitution and only adheres to the common law enacted by the High Court of Australia. This has resulted in a refusal to recognise the legitimacy of the state and its governance (i.e., legal proceedings and outcomes; government authorities). [89] The government (and its executors and agents) have therefore become the target of his wrath. The author notes that it appears that Mr Gavin's grievances have evolved over time, coinciding with increased radicalisation and have become embedded within the context of global conspiracy theories. Whilst he has continued to believe that he (and is [sic] family) are being targeted and harmed by NSW Police, he has also started to maintain the belief that there is a purposeful and strategic domestic and global agenda (i.e., the New World Order (NWO)) that aims to control, harm and reduce the world's population. Domestically he believes that this is being achieved through various means, including intentional poisoning (i.e., forced hospitalisation and medications; contaminated water; radiation; chemtrails). Globally, he opines, for example that COVID-19 is factitious and that it is a disease that has been engineered as a 'mechanism … based on the effects of 5G…[as a means to] start knocking people off nice and quiet … this is plain old fashioned murder and it's based on a fake debt …'. Whilst it is possible this belief structure could be considered within a mental health context, the author notes that similar beliefs are propagated by a portion of society who hold a shared ideology or belief system, framed within the Sovereign Citizen Movement."
6. The Risk Assessment Report author identifies that "[a] notable concern is the extent of [Mr Gavin's] influence over others." At [93] she identifies several comments from his online followers expressing appreciation for his knowledge and the education they have received from his videos. The Risk Assessment Report author goes on to say: "[95] Concerningly, Mr Gavin has also used these online forums to communicate what appears to be training and knowledge of, as well as strategic capability with weapons and explosives. For example, 'Nano particles greatly increase the surface area and mixed with iron oxide in nano particulate it becomes so unstable it is now considered a pseudo explosive as it flashes so fast its like a dimly lit cousin of det, cord, JP8 jet fuel …'; 'I already know the list of chemicals needed to move a rock or deal with someone … detonators, aluminium powders … all you gotta do is watch some chemistry clips and you can have some fun'; '… what he could have done was he could have rocked up with a hole saw and some petrol, and hole sawed a hole into the box and fill it up with petrol … anything flammable … spray it in and light it up … don't use petrol … mix it with diesel or something … diesel petrol mix … this thing will turn into a bomb'; and 'Capacitors, we used to blow them up in the Army. We'd get a capacitor the size of your hand and we'd blow it up. We'd stick it in 3 phase power … basically if you had wrapped it in aluminium and a bit of iron fillings and put some phosphorus in there and some condies crystals and then put that in a vessel … you've got a hand grenade'."
7. At [96] the author notes that "whilst within the information reviewed for the purpose of this report there is no evidence of overt plans or preparations for an act of violent extremism, politically motivated violence or terrorism, [Mr Gavin's] online rhetoric does demonstrate the presence of considered thought about the process of how he (or others) could cause maximum harm to others and property should he choose to." [Emphasis added]
8. In relation to Mr Gavin's risk describing factors, the Risk Assessment Report author notes that Mr Gavin has not engaged in a physical act of violent extremism, politically motivated violence or terrorism, but that he "has been observed to make threats of harm to others and property within the context of an extremist ideology." The author considers that the motivation for this behaviour has shifted over time. She concludes at [99] that "[a]ny potential future physical act of violent extremism, politically motivated violence or terrorism is likely to be motivated by a need to maintain his status, but also moral obligation and superiority."
9. At [100], the Risk Assessment Report author observes that Mr Gavin appears to be maintaining his ideology. She notes that "[h]is ideology identifies the government (and it's [sic] enforcers e.g. police, correctional officers, courts etc.) as illegitimate and at times the source of harm to him and others. This increases the risk that he sees the government actions as a direct threat and subsequently condones the use of violence in the context of what he would perceive as 'self-defence'." She connects this ideology directly to the likelihood of harm, saying "[w]hilst many in the community may accept violence in the context of self-defence, it is Mr Gavin's acceptance and promotion of the Sovereign Citizen ideology which escalates the likelihood and threat of harm".
10. The Risk Assessment Report author administered the Terrorist Radicalisation Protocol. She notes at [106] that the presence of both "distal and proximal" warning behaviours is indicative of a need for active risk management. Her report continues: "[108] A review of the available information revealed that in the immediacy of his index offending, a number of proximal or warning behaviours were present. The escalation of behavioural indicators suggests that he was on a trajectory toward grievance fuelled violence. [109] Mr Gavin is observed to have become increasingly preoccupied with his ideology, various conspiracy theories and those individuals with whom he had identified as being responsible for his perceived ongoing persecution and harm. He claimed that terrorist organisations did not exist and asserted that mass shootings and siege events that occurred within the Australian context were conspiracies (i.e., Port Arthur Massacre, Lindt Café). There was a noticeable increase in his online activity, and specifically with respect to his aggressive messaging. It was within the context of social media that he communicated his intent to cause harm and make direct threats of harm to others and property. [110] The author notes that there was an absence of a violent action imperative (or a signal of distress that indicates that an individual believes that they have no other choice but to act). Nor is there any evidence that he had been actively testing his ability to carry out the acts that he had threatened. … [112] Since his release to the community, there has been a noticeable decline in the trajectory towards targeted violence. Whilst the ideology and grievances have remained present, there is no current evidence of violent ideation, fixation or identification nor problematic online activity. He is also reporting that he has no contact with other individuals who espouse similar views. It is possible that this change in behaviour could be resultant of his compliance with mental health medication and/or the current parole order. Mr Gavin's active participation in assessment would assist in identifying moderating influences." [Emphasis added]
11. Based on the VERA-2R and the TRAP-18, the Risk Assessment Report author concludes that Mr Gavin presents as an individual who has been radicalised to an extreme ideology. She notes at [113] that "[w]hilst he has not engaged in an act of ideologically motivated violence, he has verbalised threats and detailed methods of how to achieve mass impact outcomes. He has the network and capability to either incite others to or engage in an independent act of violent extremism, politically motivated violence or terrorism".
12. The Risk Assessment Report author does not provide an overall risk rating because of Mr Gavin's profile and the "significant variability in behaviour that could occur within the context of violent extremism, politically motivated violence and terrorism". Rather, she considers different risk scenarios and identifies individual risk ratings considering the nature of the threat posed, the extent of the harm that could be caused, and imminence. The author concludes that if no post-sentence order is imposed, Mr Gavin is at high risk of resuming his online activities. She considers this will "likely have little impact and cause minimal direct harm".
13. The author concludes, in respect of Mr Gavin collecting or making documents likely to facilitate terrorist acts, that he is at high risk of continuing to develop online content that could incite others to engage in acts of violent extremism, politically motivated violence or terrorism. She notes that "[t]his will likely have little immediate impact or harm, however overtime and within the right context, it may have a significant impact and cause significant harm". She notes that Mr Gavin's "ability and willingness to share knowledge about the use and creation of weapons to cause mass impact is notably concerning".
14. In relation to Mr Gavin becoming a member of a terrorist organisation, the author considers that there is a high risk that Mr Gavin will engage with likeminded individuals in person or online. She considers that there is a moderate risk that he will subscribe formally or informally to a Sovereign Citizen group or continue to "independently form an ideologically influenced and driven group". She concludes that "[i]n the immediacy, this will likely have little impact and cause minimal harm. Over time and if a formalised group is created, however, it is likely to have a significant societal impact and could possibly cause a level of societal harm to others".
15. The author concludes that there is a high risk of threats of physical violence toward those Mr Gavin identifies as being the "enemy" (i.e., NSW Police, Magistrates, Politicians). Due to Mr Gavin's refusal to engage with the author, she was unable to complete a detailed analysis of risk and protective factors.
16. While noting that Mr Gavin does not have a history of instrumental violence, the Risk Assessment Report author considers that his statements, in combination with his knowledge and experience with explosives, mean that he is at moderate risk of planning and preparing for the destruction of state or commonwealth property and actual destruction of state or commonwealth property.
17. The Risk Assessment Report author concludes that Mr Gavin is at high risk of breaching an extended supervision order.

Mr Gavin's criminal history

1. Section 25(3)(j) of the Act mandates consideration of Mr Gavin's criminal history. Reference has already been made to the index offence. Mr Gavin's criminal history appears otherwise to be of variable relevance or significance to the present inquiry.
2. Mr Gavin's criminal history is characterised by a pattern of escalating arguments or disagreements resulting in physical confrontations when he is placed under stress. He similarly responds with aggression in situations that he perceives to be unfair or unjust. In particular, Mr Gavin's interactions with the police and the courts have been characterised by distrust and animosity. In particular, Mr Gavin maintains that the police and the courts cannot legitimately exercise authority over him.
3. Part of the material upon which the State relies, however, includes a large number of COPS entries relating to Mr Gavin, detailing incidents involving him where police have been called to attend. These are to be found at tabs 155 to 177 of exhibit VC-1 to the affidavit of Vincenzo Camporeale affirmed 9 December 2021. While not all strictly fitting the description of a criminal history, the entries are nonetheless instructive for present purposes.
4. At the substantial risk of inadequately summarising, and therefore possibly misrepresenting, the thrust of these extensive entries, it is apparent that they almost always involve Mr Gavin in disputes with strangers that include Mr Gavin losing his temper or being unable to control it. The incidents include Mr Gavin speaking in an aggressive manner in a magistrate's court on 8 May 2015 when he was responding to an AVO issued at the instance of his then wife. For example: "The accused was belligerent and aggressive when speaking with the prosecutor and indicated that he was a 'Man under Common Law' and the 'proceedings were illegal'. The accused also informed the prosecutor that he would record the proceedings and upload same to YouTube. When the accused entered the Court he became aggressive with Court staff and informed a female court officer to look up the word 'understand' and she would see that he was a man and not underneath her authority and words to that effect. Local Court Magistrate Giles came onto the bench and the accused immediately became aggressive. He stated 'I was already standing, I didn't stand for you. This is a maritime court look at the Coat of Arms, it's different to the District Court. Local Court Magistrate Giles was unable to speak over the accused and had to raise her voice to be heard."
5. Mr Gavin was later arrested and charged with a breach of s 9 of the Court Security Act 2005 for recording the proceedings on his mobile phone. The COPS entry notes that Mr Gavin "refused to acknowledge police procedure and continued to rant about corporations and the government".
6. On 30 August 2017, Mr Gavin was involved in an incident at Parramatta Local Court: "Approximately 9:45 on Wednesday the 30th of August 2017, GAVIN attended Parramatta Local Court. Upon arrival at the local court, GAVIN … attended the registrations desk on level 1 of Parramatta Local Court. The registration desk was being serviced by SPITERI. SPITERI asked GAVIN as to his intentions in regards to his matter on the day. This is customary to allow Court staff to allocate matters to their respective Courtrooms based on the likely duration required for each matter. GAVIN has become disgruntled due to being asked how he would like to proceed with the matter. GAVIN … stated to SPITERI 'It is none of your business.' GAVIN … removed his mobile phone from his bag and began to film SPITERI. At this time, SPITERI … repeatedly said to GAVIN 'I do not give you permission to record me.' GAVIN continued to record SPITERI for a number of minutes. A short time later, a sheriff … attended the location and began talking to GAVIN in an effort to de-escalate the situation. During this conversation GAVIN repeatedly rambled citing unknown legislation. A short time later, Police … attended the location and spoke with both GAVIN and the SPITERI [sic]. Whilst speaking with GAVIN, he continued to ramble and refer to obscure legislation stating, 'Where is the proclamation for this legislation?'
7. The material on which the State relies includes other examples of Mr Gavin becoming aggressive during his attendance at courts.
8. Another example of the COPS entries unrelated to court attendance is as follows: "About 8.55pm on the 5th of March 2019, the accused rode his bicycle in an easterly direction at a rapid speed. Police were conducting other enquiries with another stopped vehicle. LSC Skehan was looking in the rear of the police vehicle. The accused rapidly approached the rear of the police vehicle yelled, very loudly, 'Paedophiles'. This has caused LSC Skehan to believe there was an imminent risk to his safety as it sounded like the accused was directly behind him and in his immediate vicinity. At the time the accused's bicycle was not fitted with a light at the front which was able to be seen for at least 200 meters [sic] or a rear red light that could be see[n] for at least 200 meters. The accused continued to ride away, and police were unable to deal with him at this time due to the other vehicle stop. About 9.05pm, police observed the accused again riding in a westerly direction. Again, without lights front or rear and no warning device. Attempts were made for him to stop by activating all warning lights and siren, but he refused to do so and continued to ride. Police stopped the vehicle in front of him and he was stopped and spoken to. The accused was irate and aggressive to the extend [sic] that he had white foam coming from his mouth when he yelled, he was spitting saliva at police for the entire duration of the police interaction and was unable to continue a stable conversation. When asked about his lights he admitted that he did have lights fitted to the front and rear. However upon inspection they were dull and dim to the extent that they were not visible from a short distance away. There was no warning device fitted to the bicycle at all. The accused was asked for his name many occasion to this he only replied by yelling, 'Joseph'. The accused raised his bicycle into the air in front of police and this was deemed a threat. The identity of the accused was unknown and subsequently placed under arrest. Due to the aggressive state of the accused and his unpredictable nature to prevent injury to police he was handcuffed and escorted to the police vehicle for the purposes of identifying him. Once he was identified he was released from custody and advised that he could not ride his bicycle without appropriate lights front and rear to the vehicle and needed a warning device fitted."
9. The material also contains several reported incidents in which Mr Gavin has become angry and aggressive with members of the public. For example, one such incident involved Mr Gavin becoming aggressive with a service station attendant when he appears accidentally to have spilt petrol on himself. Another involved a confrontation with the driver of a vehicle that apparently came into contact with his. Although police were called, the other people involved in these incidents did not require police action to be taken. The material on which the State relies includes several other examples that attracted police attention, but which did not result in prosecution, perhaps consistently with the recognition of Mr Gavin's mental health presentation.

Hawkesbury Community Mental Health records

1. Mr Gavin was medicated for his mental health condition over 2020 and 2021. In November 2021, his psychiatrist discontinued some injections because they were affecting his physical abilities. He continues to take antipsychotic medication. Mr Gavin did not participate in any treatment or rehabilitation programs while in custody, although there is no evidence that he refused to do so.
2. Mr Gavin has been extensively assessed and reviewed by community health facilities. The following are examples of assessments performed last year: 19.6 Mental Health Progress Note - 13 September 2021 Mr Gavin was reviewed by Dr Azadeh Atashnama at Nepean Blue Mountains Community Mental Health given Mr Gavin's concerns of the side effects of his medication. On review, Mr Gavin denied experiencing any psychotic symptoms in the past and denied current symptoms. He stated he does not have a mental illness and only the psychiatrists at Long Bay diagnosed him with a mental illness. He expressed dissatisfaction about being on medication when he is not willing to and when he is not under a CTO. Mr Gavin reported feeling lethargic, lying down 20 hours a day. Reported weakness and muscle spasms and sudden jerky movements in his muscle, face or limbs occasionally. He reported improvement in his sleep since reduction of the medication. He appeared to be suffering from akathesia as he feels restless in his legs. His current medications are zuclopenthixol depot 250mg. Dr Atashnama spoke to Mr Gavin's sister who was supportive of the fact that he is not mentally unwell. She said he has anger management issues but she has never noticed him talking to himself, or expressing any strange thoughts or being paranoid. On examination, Mr Gavin was polite and cooperative, no psychomotor agitation was noted although he appeared to suffer from akathisia. His mood was reported as normal and affect reactive. No formal thought disorder was noted. He denied suicidal ideation or homicidal ideation. Denied any persecutory, referential or control delusions. No grandiose delusions or thought insertion, withdrawal or broadcasting were present. Mr Gavin disagreed with the diagnosis but was agreeable to continue the depot for the time being. The impression is Mr Gavin appears to be experience [sic] mild-moderate extrapyramidal side effects. There is no evidence of psychosis, mania or depression. No acute risk of harm to self or others identified. … 20.7 Mental Health Progress Note - 29 October 2021 Mr Gavin attended the centre for a review by Dr Sivaruby Thavakulasingma and Evan Chillemi, Registered Nurse. Mr Gavin presented as being settled in his mood. He displayed symptoms of akathisia and parkinsonian symptoms. He and his mother reported agitation/restlessness that negatively affects his sleep. He experiences difficulty in raising his arms above shoulder height. He experiences somnolence during the day and minor tasks cause him fatigue. Mr Gavin also reported a low mood, feeling 'depressed'. He and his family attribute the behaviours to the clopixol depot. Mr Gavin sought to cease the medication and expressed a preference to use as few medications as he can. Mr Gavin's YouTube channel remains active and he has not been posting. He removed a video that he posted which drew police attention to him, 'I don't post videos like that anymore'. He was amenable to voluntarily attending the centre again to meet with the doctor for follow-up. There was no evidence of perceptual disturbances and his thought form was logical, sequential and no thought disorder was observed. His thought content included seeking to reduce his medication. His insight and judgment were intact. At this time of assessment, the previously assessed risks of threats of violence to police and online activity leading to risk to reputation were assessed as low. There was a moderate risk of aggression, although Mr Gavin denied thoughts or intent of harm to others or to himself." [Emphasis added]

Compliance with obligations

1. Mr Gavin has breached conditional release orders in the past. He has, however, complied with the conditions of his parole since his release on 13 August 2021.

Assessment of risk

1. Much has been written on the topic of s 20(d) of the Act and the need to be satisfied to a high degree of probability that an offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order. I should state at the outset that I am not satisfied at all that Mr Gavin poses any such risk.
2. The State has submitted that Mr Gavin has "a lengthy history of violence and poor self-control". While I accept that contention is accurate at one level, it needs to be placed in context. The sentence of imprisonment that Mr Gavin is currently serving on parole is his first. He was sentenced to a term of imprisonment in December 2015 for the offence of affray, but that was varied on appeal to the imposition of a s 9 bond. He has several convictions for resisting an officer in the execution of his duty. He was made subject to a conditional release order in April 2018 for assaulting an officer in the execution of his duty, later the subject of a Mental Health Act 2007 assessment. His criminal history is consistent with his inability in certain situations to control his anger and the related circumstance of mental health issues. None of his offences involving violence could be characterised as being at the most serious end of the scale.
3. In State of New South Wales v Alam [2020] NSWSC 295, her Honour Wilson J rejected an application under the Act at the preliminary stage, observing at [174] and [188]-[189] as follows: "[174] Whilst the defendant is a regular offender against the criminal law, and is likely to remain so, he has never been convicted of any offence committed in support of a particular ideology, extremist or otherwise, or with the intention of coercing, or influencing by intimidation, the public or government (s 100.1 of the Code). The index offences which keep the defendant in his present custody are a useful example: they are entirely unconnected with ideology, religion, or politics, and bear no relationship to serious terrorism offences. … [188] The THRO Act is not designed to prevent the commission of ordinary crime, or to minimise the risk that such crime will occur. Neither is it intended to facilitate the protection of an offender from those who may wish him harm, or assist him in securing release from custody. It is not intended to provide an alternative to parole. It is directed to protecting the community from an unacceptable risk of the commission of a serious terrorism offence. [189] Whilst I think it is highly likely that the defendant will continue to engage in criminal conduct when released to the community, to the jeopardy of others, I am not able to conclude that he may pose an unacceptable risk to the community by engaging in the commission of a serious terrorism offence. He presents as a violent offender who is unable to conform to a law-abiding life and, when in custody, who poses a serious management issue for the Corrections authority. He does not present as posing, if not kept under supervision, an unacceptable risk of committing the very specific politically or ideologically motivated offences from which the Act aims to protect the community."
4. The State submitted that this case provided "an important contrast" with Mr Gavin's situation. First, the index offences here bear a clear connection with Mr Gavin's extreme views. Secondly, although Mr Gavin's past criminal offences could not be said to have been intended to advance a political cause, his views bear a clear connection to some of those offences, particularly those involving police and courts.
5. The State submitted that, taking the evidence in its totality, there is "a clear risk of [Mr Gavin's] conduct intensifying to a point where he carries out an action or makes a threat with the intention required under s 100.1 of the Criminal Code".
6. I am unable to accept that submission. Taking account of all of the evidence upon which the State relies, it seems to me to establish that Mr Gavin poses a risk of committing only offences of the general type reflected in, or evidenced by, his criminal history. In expressing that view, I acknowledge the tone and content of the threats constituting the index offence and of the YouTube videos otherwise referred to. However, I am not satisfied by reference to this material, and I am certainly not satisfied to a high degree of probability, that Mr Gavin poses a risk of committing a serious terrorism offence if not kept under supervision.
7. Part of the evidence upon which the State relies includes the fact that the offensive YouTube posts partly extracted above have since been taken down by Mr Gavin and nothing of the same nature has reappeared. The evidence includes Mr Gavin's express disavowal of any intention to repeat such conduct. The State is quick to emphasise that that is, or may be, because Mr Gavin is currently on parole subject to conditions and that he well appreciates the consequences for his liberty in the community if similar offensive videos were to be published. As true as that may be, and tacitly acknowledged by Mr Gavin in several locations in the evidence, as well as during the hearing of these proceedings, the prospect that he will revert to such conduct when his parole expires does not overwhelm the inference that he will not repeat the conduct in any circumstances as he understands what will happen if he does.
8. I remain unsatisfied to a high degree of probability or indeed at all that Mr Gavin poses an unacceptable risk of committing a serious terrorism offence unless kept under supervision of an extended order.
9. Even if I were not of that view, as a matter of discretion I would decline to make the orders sought by the State: see Naaman (No 2) at [29.6]. Having regard to the difficulties with the authorities that Mr Gavin has demonstrated over the years, and without elaborating further for reasons that I trust will be obvious, subjecting Mr Gavin to a supervision order even at this preliminary stage would in my opinion be counterproductive and inimical to his post-release rehabilitation.

Conclusion and orders

1. The summons filed on 8 December 2021 should be dismissed with costs.

Amendments 15 February 2022 - Amendment to representation 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: 15 February 2022