State of New South Wales v Holt

Supreme Court of NSW|2021-07-22|Before: Adams J, Legislation Amendment J

Background

Ms Katrina Czerkies provided a Risk Assessment Report ("RAR") dated 21 May 2021. She is a Senior Psychologist/Therapeutic Manager in Countering Violent Extremism (CVE) Programs. The RAR was reviewed by the Manager of CVE Programs, Naomi Prince on 21 May 2021. Ms Czerkies conducted her assessment on the basis of file information only as the defendant did not consent to take part in the assessment process. With respect to the defendant's background her report disclosed the following.
The defendant was 31 years old at the date of the report and is the eldest of three biological and five half-siblings. Following his parents' divorce when he was 11 years old he experienced frequent changes in parental custody between his parents and paternal grandparents. There were interpersonal difficulties with his parents and step-parents due to his extreme religious, social and political beliefs and those relationships were often strained. He had a close relationship with his paternal grandfather who died in early 2020 with whom he shared certain ideological beliefs.
He was seven years old when early behaviour difficulties were formally recorded. They took the form of poor emotional and general self-regulation (irritability, threats of self-harm, difficulty concentrating), interpersonal difficulties (being shy and timid, "showing off", not getting along with other children his age), verbal and physical aggression and violence (harassing, bullying and physically harming others, setting fires, destroying things) and inappropriate sexual behaviour (frequent masturbation, including in public).
He was first diagnosed with Asperger's Syndrome when he was nine years old in 1999. The additional diagnoses of Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder (Combined Type) and Specific Learning Disability were identified a year later. His current diagnoses include Autistic Spectrum Disorder (with the core features not exhibited) and Significant Personality Problems.
In an attempt to manage his behaviour throughout his schooling the defendant was often referred to school counsellors and placed in special education units and on behavioural management plans. He frequently changed schools. He was unresponsive to interventions and was eventually suspended from school in Year 11, at the age of 17.

Criminal history: s 39(3)(j)

Prior to his arrest on 10 September 2015, when he was charged with the offences he is serving a sentence for, the defendant had no criminal record.
A number of relevant aspects of the index offences were addressed in the affidavit of former Detective Senior Constable Jessica Hammond sworn on 5 July 2021. Of the items seized from the premises of the defendant, his grandparents and his mother, the most concerning items were the four homemade "slam fire" guns. These guns consist of a metal tube or barrel, operated with a fixed firing pin and shotgun shell. They are designed to be used at close range. These items were tested by NSW Police and found to be operational.
These homemade weapons can be made from "fairly basic pieces of scrap metal and wood that are readily available" and are straightforward to assemble. DSC Hammond noted that it was usually more difficult to manufacture ammunition because empty shells are not readily available. Despite this, the defendant had been able to acquire empty shells, from which it would be "fairly simple" to manufacture ammunition. Instructions and tutorials for slam fire guns and ammunition are readily available online and the defendant had "liked" several videos on social media related to homemade firearms and instructions on how to make them. An SD card seized from the defendant's premises also contained videos including "Home Workshop Guns for Defense and Resistance", "How to make Prussic Acid" and "Basic 12 Gauge Zip-gun Design". Photographs of the items seized from the defendant's premises were in evidence before me.
Police also found a White Pride flag, Nazi flag, swastika necklace, White Pride badge, death's head badge and black "German style army helmet". A number of boxes containing pieces of metal piping, springs, Perspex and a swastika and death's head skull sticker were also found. Two of the knuckle dusters contained images of a swastika and SS skull respectively. A knife with SS runes was also found.

Views of the sentencing court: s 39(3)(k)

In his Honour's remarks on sentence on 29 September 2017, McLennan SC DCJ did not express any conclusive views on the defendant's risk of committing a serious terrorism offence but did note the following matters.
Information obtained from the defendant's phones was tendered at the proceedings on sentence. His text messages included the following statements: "I urge to kill so bad all the time because well I can't get laid, I hate myself", "I've had enough of this shit, I'm about to lose it, all these cunts need to be butchered", "I need that Glock", "I need a gun ASAP", "And I'll shoot them and probably die without a wife, I have no reason to do anything except that I want", "then I kill until I die" and "I'm scared of what my recklessness and suicidal thoughts could lead to". In an exchange two days prior to his arrest, the defendant said "my hate increases every day, my rage exponentially so… I always fantasise about mass homicide when I'm in crowds and crowded places… I dream of it all the time. I got kicked out of high school when I was your age for talking about shooting up the school."
His Honour noted that these messages expressed a suicidal and homicidal ideation. His Honour described the defendant's web history as revealing an "obsession with school shootings". His Honour was satisfied beyond reasonable doubt that the offender had often talked about loading weapons into his vehicle and driving it to a public place where he would just "start shooting it up".
His Honour further noted that the applicant had five slam fire guns in his possession and noted that while incapable of inflicting mass casualty, they could cause serious damage to a person at close range. His Honour also noted that the facts referred to the possible sale of a slam fire gun in January 2015, although his Honour noted that this was not suggestive of a "trade" in such weapons.
His Honour was unable to conclude that the defendant was unlikely to re-offend and did consider that he was "potentially a threat to the public safety of the community at large". His Honour noted that he could not impose a disproportionate sentence by way of preventative detention. After considering the Commonwealth offences, his Honour concluded that: "The offender's obsessions with sex, guns and death, points to a deeply disturbed and disturbing psychopathology. Only intensive psychotherapy over many years, in conjunction with pharmacological intervention, offers the prospect of stabilising this offender."

Beliefs or commitments supporting engaging in terrorist act: s 39(3)(l)

The defendant is of the fundamentalist Christian faith. His radicalisation commenced at a young age. He was raised within the Exclusive Brethren where he was exposed to radicalisation and right-wing narratives via his relationship with his grandfather. He now identifies as belonging to the Christian Separatist Church that is described as a "militantly Christian, White Nationalist organisation composed only of white men and women" who believe that "true White Nationalism and Christianity are one in [sic] the same philosophy". They advocate "the belief that the white race is superior to other races" and its members "hold white separatist views" including "open hatred towards Judaism". The Church describes "race-mixing" as "immoral" and an "act of racial murder".
The RAR noted that defendant holds beliefs that align with extreme right-wing ideology. Those beliefs condone the use of violence in order to achieve ideological goals and are synonymous with "white supremacy". His beliefs, held since he was 14 years old, have remained "rigid and steadfast". He has continued to "reject notions of democracy" and does not believe in the Australian system of government and its laws. He has expressed hostility towards "his national identity" and has stated that he does not hold any allegiance to Australia. He has expressed his loyalty to Germany, his preference to speak in German and a desire to live in that country under "the Reich/Nationalist Socialism". In recorded telephone conversations the defendant stated that neo-National Socialism is "the only sort of system [he would] want to live under" and he was "literally not interested in doing anything else on this planet".
It was further noted that the defendant had established online and offline connections with those that share similar views, such as Combat 18 and the Christian Separatist Church, as well as social connections with individuals who hold similar ideological views, such as Ricky White. Mr White was placed on a Terrorism (High Risk Offender) Extended Supervision Order on 14 December 2018.
Ms Czerkies noted in the RAR that the defendant has been accessing, using and developing violent extremist materials since he was 15 years old. In adolescence he changed his appearance by shaving his head and wearing red armbands, black braces, army boots and swastika rings. An escalation in his online behaviour was observed from 2012. He then began to access online propaganda, including from the Aryan Terror Brigade and created social media pages, such as Facebook pages in the names of Michael Holt and Fritz Hassenholtz which posted messages such as "Fuck the Police, Aussie pride! DEATH TO ZOG/NOW TYRANTS" and "As a Blond, Blue Eyed, and Pale White Skinned Straight Male. I feel discriminated against…all the time, so would Gladly murder this whore in front of everybody, and spray the fucking room with her devil blood, hahahaha!". He also contributed to a Port Arthur Massacre enquiry page and several pro-gun web pages, expressed admiration for Adolf Hitler, and has used social media applications to make posts related to his ideology, such as "I post about my hatred for laws made by scum".
In addition to acquiring, using and developing paraphernalia associated with his ideological views, the defendant's offline behaviour from 2015 has included collecting material related to war and right-wing ideology. He acquired items including an army helmet, gas masks, a White Pride flag and a Nazi flag, and has produced written documents such as song lyrics, stories, caricatures and comic scripts aligned with his ideological views.
The defendant's social media included photos of him wearing "death's head" pins and a necklace with a swastika.
In his affidavit, Theo Papadopoulos, Senior Constable with NSW Police who was an intelligence officer in the Joint Counter Terrorism Team between 2005 and 2018, detailed other social media posts by the defendant including, "Anders Behring BREIVIK is a HERO" and "Loyalty to the Death!, Heil Hitler!, Seig Heil!". Mr Breivik is a mass-murderer from Norway. The defendant also made posts such as, "I pray for another Holocaust" and "What a man calls himself, the music he listens to, has no bearing on whether he is a true National Socialist, so long as he believes in doing Whatever [it] takes in Final Victory, Erasing anyone who get's (sic) in the way, complete ruthlessness is needed for total victory and complete eradication of the virus that seeks to destroy our Race…".
In an online chat on 17 August 2015 the defendant stated: "I know EXACTLY why Elliott Rodgers did what he did… and I feel the same... except5 [sic] I'm not totally Misogynistic and Arrogant". Elliot Rodgers killed six people and injured 14 others in Canada in 2014.
The material tendered by the State included transcripts of telephone calls made by the defendant while in custody. In recorded conversations between August and November 2020 the defendant made statements such as "It's not about revenge. It's about they broke Reich laws so they're going to have to fucking suffer the consequences for breaching the law"; "no-one in the Reich gives a fuck about any of the things I've done… They've told me… none of it is illegal under their laws". This apparently is a reference to his desire to engage sexually with a child under the age of 16.
The defendant has also made the following statements: "I'm of the opinion now, as I always have been, I just sort of kept it to myself for a long time, is that anyone who doesn't support the Reich is automatically a sub-human piece of filth, unworthy of oxygen"; "as far as I'm concerned I'm not Australian. Never have been. Just because I had the misfortune of being born here, it's not my fault. So I've got more loyalty to Greater Germany and you know what I mean by that, than I have to anything else… that's who I'm working for. Always have been, always will be."

Results of any risk assessment: s 39(3)(c)

Section 39(3)(c) of the THRO Act provides that, when determining whether to make a final detention order, the Court must have regard to 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".
I have already summarised aspects of the RAR prepared by Ms Czerkies. The executive summary of the RAR is in these terms: "Mr Holt is a single 31-year-old man, currently in custody for weapons offences and non-contact sexual offences. He has been identified as a Terrorism Related Offender (TRO) under the Terrorism (High Risk Offender) Act 2017 and remains incarcerated past his Earliest Possible Release Date (EPRD) due to ongoing concerns relating to his continued commitment to an extremist socio-political ideology, limited efforts with rehabilitative or offence specific programming and a lack of post- release plans. Mr Holt holds an extreme right-wing ideology, that has remained rigid and steadfast despite the provision of interventions and incarceration. In the immediacy of his arrest for the index offences, Mr Holt appeared to be escalating toward an act of intended, targeted or ideologically motivated violence. Ideologically influenced idiosyncratic and global grievances continue to be present, as are identifiable violent ideations. He has demonstrated capacity to engage in research, planning and pre-attack preparations and has continued to engage in behaviours that suggest that several vulnerabilities and risk indicators (and characteristics) specific to violent extremism, politically motivated violence or terrorism remained salient. Mr Holt has no prior history of general or violent offending. He has however, been assessed as being in the medium range of general recidivism and well above average range for sexual recidivism. Both the VERA-2R and TRAP-18 have been administered to assess the risk of violent extremism, politically motivated violence or terrorism. Mr Holt's profile informed that he falls within the high range and requires ongoing monitoring and case management (either in custody or the community)." (emphasis in original)
Ms Czerkies noted that, with respect to risk assessment, it is not scientifically possible to accurately predict whether an individual offender will or will not offend and that the risk assessment of violent extremism or politically motivated violence is comparatively new compared to risk assessment for general violent and sexual offending. Ms Czerkies concluded that: "…Mr Holt remains on the pathway toward an act of violent extremism, politically motivated violence or terrorism. It is likely that he will continue to engage in behaviours that place him at risk of continuing to be considered a Terrorism Related Offender (TRO), confirming his ongoing eligibility for consideration under the THRO Act. His pattern of past behaviours indicate that it is likely that Mr Holt will continue to place himself at increased risk of committing a range of varied criminal offences including general or sexual offending; or acts that fall within the remit of ideologically motivated violence, violent extremism or serious terrorism activity (i.e., collecting or making documents that are likely to facilitate terrorist acts; joining a terrorist organisation, forming a group or recruitment; making threats or engaging in the planning or preparation of a terrorist act)." (emphasis in original)

Violent extremism, politically motivated violence or terrorism

The defendant was assessed using the Violence Extremism Risk Assessment - Version 2 Revised (VERA-2R) and Terrorist Radicalisation Assessment Protocol - 18 (TRAP-18) tools of assessment. These tools measure violent extremism, politically motivated violence or terrorism.
The VERA-2R assists in assessment of the risk of extremist violence across multiple domains such as beliefs, attitudes and ideology, social context and intention, history, action and capacity, and commitment and motivation and is applicable to both charged or convicted offenders and those identified as a "possible concern" and referred to intervention programs.
Using the VERA-2R tool, the defendant's risk factors were assessed as: 1. His extreme right-wing ideology including that he was observed from the age of 16 to use "terms, narratives and symbology synonymous with white supremacy"; 2. His belief that he and his people are part of a "superior race" and that his ideological beliefs were "right" and others were "inferior"; 3. His need to acquire status by establishing ideologically influenced groups; 4. His perception of himself as a "hero"; and 5. The need for excitement and adventure by purposefully making comments to evoke shock from others.
The defendant's religious obligation to use violence to achieve ideological goals was assessed of lesser significance as was the need for camaraderie and group belonging. In relation to the latter, it was observed that his ongoing interpersonal difficulties would likely impede a long-term affiliation to any organised group outside the online environment. Lastly, the author opined that even though the defendant would not feel forced to engage on command in an act of violent extremism, politically motivated violence or terrorism, his risk to act on his stated intentions would depend on the level of influence of his "bosses" and his susceptibility to such influence.
A troubling result was that the defendant's risk mitigating protective factors were assessed as minimal given that no shift in ideology had been observed, his immediate and extended family's attempts to support him to change his ideological beliefs have been without success and that there has been little progress achieved through his engagement with PRISM.
The TRAP-18 tool assists in the assessment of persons considered to be at risk of "lone actor" terrorist attacks or targeted extremist violence. The defendant's TRAP-18 assessment showed that his extreme right-wing beliefs have been resistant to change; that his overall functioning has been impacted by his commitment to that ideology; that his perceived injustice, oppression and persecution is blamed on others and expressed through anger, contempt and disgust; and that he has a need to protect himself and others, such as the "Aryan Race" from those that he perceives to be a threat.
The defendant was assessed as falling within the "high" range for the risk of violent extremism, politically motivated violence or terrorism and as such would require ongoing monitoring and case management either in custody or in the community.

History of support for terrorism/violent extremism

Ms Czerkies provides the following history of the defendant's support for violent extremism, politically motivated violence or terrorism (both while in custody and in the community): 1. In 2004, at 14 years of age, the defendant was described as being obsessed with war, knives and guns as well as Nazism; 2. In 2005, at 15 years of age, with his obsession had not diminished despite being referred to school counsellors and behaviour management. The defendant continued to wear red arm bands, draw swastikas on his arms and submit papers that included anti-Semitic content. He also formed a group called "Deutsch Geheim Armee83" and attempted to form a group called "D2G" (Death to Gays and Death to Communism) for which he was attempting to recruit others; 3. In 2006, at 16 years of age, the defendant used the internet to research his World War II and Nazi interests and connect with other like-minded people. He was suspended from school due his disobedience and his displays of religious intolerance; 4. In 2007, at 17 years of age, his obsession with Nazism, both online and offline, was observed to increase. His appearance became suggestive of the extreme far right (army boots, shaved head, bullets around his neck, swastika rings); he made threats of harm such as "I had a really good dream last night. I came to school with a handgun with a silencer and went into two classes and shot everyone" and "exterminating the scum of society such as homosexuals and drug addicts"; and he started a new group called White Aussie Resistance Skinheads that reportedly had five members; 5. In 2008, at 18 years of age, the defendant wore mainly black clothing that included a hat with the words "Fourth Reich" inscribed. He identified as a "White Nationalist" during an interaction with police; 6. In 2009, at 19 years of age, the defendant reported being responsible for recruitment to the Australia First Party, of which he was a member; 7. In 2010, at 20 years of age, the defendant identified himself as a Nazi, was observed wearing a Neo-Nazi White Pride shirt and had written song lyrics with white supremacist themes declaring his hatred for others based on their religion, culture, gender and sexuality; 8. In 2012, at 22 years of age, the defendant had electronic copies of the mission statement, constitution and Code of Honour of a US-based white supremacist group called Aryan Terror Brigade. He developed lists of the things needed to engage in warfare (such as uniforms, field goggles, combat boots, compass, combat knife, weapons and ammunition), propaganda material and stated, "The time for talk is over. The time for direct action is now. The war is rapidly approaching, and we must be prepared." He was also actively researching how to make and store weapons (such as firearms and Prussic Acid); 9. In 2013, at 23 years of age, the defendant had electronic instructions on how to manufacture weapons; 10. In 2014, at 24 years of age, the defendant was actively trying to establish a group called the "Reaper's Disciples" (both online and offline) and recruit others who were pro-gun and anti-government; 11. In 2015, at 25 years of age, the defendant used online forums to view extremist material and make politically motivated statements advocating violence. He also expressed a desire to engage in a mass shooting in a public place and was observed to make threats towards police and government. He later advised police that he had ceased being a member of Combat18 and had joined the Christian Separatist Church; 12. The defendant was charged with the index offences on 10 September 2015; 13. In 2016, whilst in custody, the defendant informed authorities that he was no longer a member of a neo-Nazi group but did not identify another group he was affiliated with; 14. In 2017, whilst in custody, the defendant continued to identify with the Christian Separatist Church and acknowledged making online posts admiring Adolf Hitler; 15. In 2019, whilst in custody and aged 29, the defendant continued to identify with the Christian Separatist Church and was observed performing the "Hitler Salute" when entering a group program session; 16. In 2020, the defendant's cell was searched and a number of items were seized including song lyrics with themes synonymous with far-right extremism and support for violence, drawings of himself dressed in military type attire holding and pointing a weapon, and drawings of firearms and Nazi symbols consistent with white supremacist and far-right ideology. He made a list of other inmates categorising them by their race or religion. In discussions with his mother the defendant showed rigid beliefs and stated that if anyone tried to "change" him he would only become "more defiant"; 17. He was also observed trying to recruit people in custody. Although the defendant continued to wear clothing and symbols associated with Nazism, he indicated to an associate that having an "obvious" appearance and associating with like-minded people in custody was "too risky, especially with what I'm doing" and that he was ordered by his "superior" to avoid it; 18. In 2021, the defendant reported that he had been told by his "boss" that it would be compulsory for him to be "re-educated" upon release.

Mental health

The defendant presents with a complex history of psychological and psychiatric difficulties and had received multiple diagnoses. He was first diagnosed with Asperger's Syndrome at the age of nine. The additional diagnoses of Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder (Combined Type) and Specific Learning Disability were identified a year later. His current diagnoses include Autistic Spectrum Disorder (with the core features not exhibited) and Significant Personality Problems.
As stated above, the defendant has experienced violent and homicidal ideations since he was approximately 11 or 12 years old and has expressed self-harming and suicidal ideations and behaviour since 2013. The most recent example was in April 2020 when he was overheard stating that he wanted to "join" a deceased person (his grandfather). He has been prescribed psychotic and anti-depressant medications, however it was noted that he has a history of non-compliance and is currently refusing his anti-depressant medication.

Suitability of ESO or CDO

Ms Czerkies opined that the defendant would require a high level of multi-agency and multi-disciplinary case management if he were subject to an ESO. He would be referred to the Proactive Assessment and Intervention Services (PRAXIS), which is a voluntary service requiring the defendant's consent, that can provide ongoing assessment and intervention specific to his identified vulnerabilities, risks and needs as well as the provision of family and community support. In her view the comprehensive case management that the defendant would require may be best achieved through a Christian based community service.
In Ms Czerkies' opinion the defendant would have the opportunity to engage in offence-specific programming such as Sex Offender Programs (SOPs) and to continue to be provided with individualised case management by the PRISM service should he be subject to a CDO. It was noted however that there are no high intensity intervention programs to specifically address his needs related to violent extremism and that in that respect he would have access to voluntary services provided by CVE programs whether he was subject to a CDO or ESO.

Other expert reports

Dr Mario Peucker is an expert in fair-right ideology and symbolism.
He detailed the significance of the symbols and motifs adopted by the defendant including SS runes, swastikas, the Iron Cross, SS skull and bones and the "Wolfsangel". Dr Peucker concluded that "considering the context of all the analysed material, all these symbols related to Nazi Germany demonstrate support or glorification of Nazi ideologies." He further opined that the defendant's appearance "indicates his identification with the skinhead subculture."
Dr Peucker also noted that several of the defendant's drawings advocated support for violence, in particular a drawing depicting a man with a wolf's head and the defendant's distinctive hairstyle (which Dr Peucker considered to be a self-representation of the defendant), wearing a Wolfsangel armband (a "symbol of choice for neo-Nazis"), white suspenders, high black boots and holding a machine gun in one hand and a leash in the other. The leash is attached to a female child who is wearing a Wolfsangel armband, military boots and underwear. The child is also holding a machine gun and dagger. The defendant's image asks the child "Don't you think you're Under dressed for Krieg! [war]". Dr Peucker noted that a question arose as to what kind of war the drawing referred to but opined that in context it appeared to refer to the elimination of any "enemies of the Nazis", which would suggest support for violent extremism and would advocate for violence against those the defendant considers "enemies".

Any other information as to likelihood of committing serious terrorism offence: s 39(3)(m)

Material found on the defendant's phone after his arrest in 2015 included several lists of materials or instructional guides for producing weapons. This included an "Einsatz.Toten.Gruppe Full Survival Gear List", which was a list of 85 items including SS armbands, combat boots and other combat clothes, various weapons and ammunition, tools and other survival equipment. The list was colour-coded by "Peacetime Use" or "Wartime Use" and included columns for "quantity required" and whether the items had been acquired.
Under the heading "Einsatz Operations" the defendant wrote: "This is basically an outlining of my plan of action… We need to start carrying out and taking objectives, The time for talk is over. The Time for Direct Action is Now. The War is rapidly approaching and We must be Prepared. … I'm going to give all Trusted Operatives a copy of this File as well as a few others in a USB Stick., namely copies of the Following Files SOA Urban Guerrilla Manual Ethnic Cleansing Field Operations 'Hitman' Mein Kampf… National Socialist Political Soldiers Handbook… The Practical & Literary Works of the Following Authors must be studied intensely; Adolf Hitler Heinrich Himmler…"
Other documents found on the defendant's phone included the following: "Einsatz Arms Inventory"; "Basic 12 Gauge Zip-gun Design"; "Toten-Wasser Pistol" (a manual for the design and use of a gun spraying Prussic acid); "How to make Prussic Acid (For Use with the Toten-Wasser Pistol)"; "What you need to make K-D's" (this document appeared to be a guide to constructing slam fire guns); "TodesSchlag Pistole"; and a diagram of a homemade 12 gauge pistol.
The following song lyrics (written by the defendant) were also found on his electronic devices: "Title: Einsatzgruppen… I decided 1 day that what we need Is an Elite Organization With which to hunt down the mongrel breed An Elite with supreme dedication To the complete eradication Of the mongrel scum in our nation Ethnic cleansing, is the sacred key To cleanse our nation, for you & me If you want to see our great race, free SS88 Einsatz for victory … Title: I'm a Nazi … I'm a true NS [National Socialist] Skinhead Fighting against the Reds Fighting against the Jew Don't call me evil or I'll kill you I'm a Nazi, now What're you gonna do If you f*** with me I'll f***ing kill you".
I was provided with a significant number of song lyrics and art that I have not summarised in these reasons. I make two comments about that additional material. The first is that the song lyrics I have referred to above are the least offensive of those that were provided to the Court. Most of the material was far more offensive, particularly the vile comments directed at people of the Jewish faith, people of African heritage and homosexuals. I have not included any of this as I consider it inappropriate to publish that material but it is highly offensive and troubling to say the least. The second observation I would make is that, offensive as it is, the defendant's artwork does demonstrate some skill in drawing.

Corrective Services Reports as to management in the community: s 39(3)(d)

A Risk Management Report (RMR) dated 7 July 2021 was prepared by Kimberley Rambaud, who is a Community Corrections Officer with the Terrorism High Risk Offenders Unit of Corrective Services NSW and endorsed by Shane Bagley who is an Applications and Operational Governance Officer. Noting that the defendant was not previously supervised by Community Corrections, the report sets out a number of management strategies that could be used if the defendant was placed on a supervision order rather than detained. They include accommodation, a supervision plan, weekly interviews with an enforcement officer, home and field visits, third party contact and intervention.
The report noted that the proposed risk management plan would be appropriate to manage the defendant's risk in the community however its success would depend the defendant's level of engagement and willingness to comply with supervision.
In addition to the report prepared by Corrective Services, NSW Police Force also prepared a Risk Management Report dated 8 July 2021. It was authored by Detective Senior Constable Robert Parker, the officer in charge of the defendant, and endorsed by Detective Chief Inspector John Walke, officer in charge of the High Risk Terrorist Offenders Unit. The report included an annexure setting out general information with respect to managing offenders on supervision orders.
The report noted the result of the VERA-2R risk assessment and observed that the defendant's behaviours were escalating towards an act of intended or targeted violence or an act of violent extremism. It was noted that the defendant remained on the pathway toward an act of violent extremist and that there had been several verbal and written expressions of his intention to commit such acts (including two expressions of intention to commit a mass shooting). He had a demonstrated capacity to engage in research, planning and pre-attack preparations and had experienced violent and homicidal ideations since the age of 11 or 12. He had a history of establishing groups online and offline based on his ideological beliefs. The report concluded that the risk posed by the defendant was so significant that the only way to sufficiently mitigate the risk and appropriately manage the defendant was through the implementation of a CDO. The report also set out the conditions sought in the event that an ESO was imposed, either in lieu of a CDO or following the expiration of a CDO.

Likelihood and history of compliance with supervision: ss 39(3)(h)-(i)

The RAR noted that the defendant has not been previously supervised in the community and that he has remained in custody past his earliest release date because of his "risk of reoffending and susceptibility to involvement in violent extremism" as well as his "underdeveloped post-release plans" and his "limited efforts with rehabilitative or offence specific programming".

Custodial history

This is the defendant's first period in custody, having entered custody on 10 September 2015. He is managed as a protection inmate due to the nature of his offences and ongoing interpersonal difficulties with other inmates due to "his far-right ideation". Otherwise, he has been described as respectful and compliant of the correctional centre routine and has acquired only one institutional misconduct charge due to a failure to attend muster in July 2018.

Participation in treatment or rehabilitation programs: s 39(3)(f)

The defendant's participation in offender programs commenced in 2015 when he participated in a six-hour anti-violence program called "Enough is Enough". His manner of participation was described as open and respectful, with some insightful observations.
His participation in the EQUIPS (Explore, Question, Understand, Investigate, Practice, Succeed) Foundation program in 2019 was described as adequate. He completed all the required tasks but displayed little insight into his offending. The RAR observed that the program did not appear to have encouraged him to make changes or foster personal responsibility.
The defendant's referral to Sex Offender Programs on 9 January 2018 was subject to a review following which he was assessed as eligible for the High Intensity Sex Offender Program (HISOP). The defendant was placed on a waiting list in anticipation of commencing treatment in late 2020 subject to operational requirements and resources.
On 20 June 2018, the defendant was referred to the Countering Violent Extremist (CVE) Proactive Integrated Support Model (PRISM). This model provides intervention that assists offenders to disengage from violent extremism, politically motivated violence and terrorism. As at the date of the report, the defendant had participated in approximately 17 hours of assessment and 53 hours of intervention.
Although his engagement with the program was been described as "consistent", there were several therapy-interfering behaviours in respect of which the defendant had not made progress. Those behaviours included rigid beliefs, a pervasive sense of grievance and poor emotional and general self-regulation. The defendant was assessed as requiring further treatment and remaining in the early stages of change. The Risk Management Report from Community Corrections further noted that the defendant said that he was "fed up" with programs and did not consider them to be helpful to him. He also said that the CVE PRISM program was "no different to the re-education camps that the Muslim Uyghurs were in, in China".

Options for reducing risk of re-offending in custody or under supervision: s 39(3)(g)

Ms Czerkies opined that should the defendant be subject to an ESO he would require a high level of case management (both multi-agency and multi-disciplinary). That would include a referral to the Proactive Assessment and Intervention Services (PRAXIS) for ongoing assessment and intervention in relation to his identified vulnerabilities, risks and needs and the provision of family and community support. On the other hand, imposition of a CDO would give the defendant the opportunity to engage in offence-specific programming such as SOPs and to continue with individualised case management through PRISM.

Consideration

The first question for my determination at this stage of the proceedings is whether I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of either a CDO or an ESO pursuant to ss 20 and 34(1) of the THRO Act. That is, is the Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised? If so, I must make orders appointing a psychiatrist and a psychologist to furnish reports to the Court on the results of those examinations: s 38(5) of the THRO Act.
Having regard to all of the matters I have summarised above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised. Without repeating all of the above material, I have had particular regard to the following factors.
First, the defendant has clearly made numerous statements advocating support for violent extremism. He has held these beliefs since childhood. This is not a case where the defendant has recently flirted with a new ideology. The deeply entrenched and longstanding nature of his beliefs is of significant concern.
Secondly, the defendant has been assessed as falling within the "high" range for the risk of violent extremism, politically motivated violence or terrorism.
Thirdly, the defendant is a person who could be described as a potential "lone wolf", who has condoned violence in the name of his beliefs on social media and has been able to reach out to other people with similar views online.
Fourthly, the defendant is able to make his own firearms. Although many people who share his beliefs may threaten violence, this defendant has the capacity to create weapons with which he could carry out such threats.
Fifthly, the defendant has a complex history of psychological and psychiatric difficulties. He has been diagnosed with a number of conditions over the years and his current diagnoses include Autistic Spectrum Disorder (with the core features not exhibited) and Significant Personality Problems. Although he has been prescribed psychotic and anti-depressant medications, he has a history of non-compliance.
Finally, in addition to the firearms offences, the defendant is serving a sentence for Commonwealth offences of using a carriage service to solicit child pornography, send indecent material to a person under 16 and groom a person under 16. He has also been arrested in custody for possessing child abuse material in the form of drawings he has made which meet the legal definition of child abuse material. His attraction to post-pubescent children appears to have arisen from his difficulties forming relationships with age-appropriate women due to his extreme views. His belief that "Reich law" does not criminalise such behaviour is troubling.
In addition to these offences and beliefs, as noted above, the defendant has expressed support for Elliot Rodger, who committed a mass murder in Canada in 2014. Mr Rodger has become a "hero" to men identifying as "incels" (the involuntarily celibate). There has also been an increasing number of murders committed overseas by men identifying as such. Although the defendant has qualified his support for Mr Rodger by stating that he himself is not "totally Misogynistic and Arrogant", the material provided to me would suggest otherwise. Incels are men who believe that they are entitled to have sexual intercourse with women and that they are somehow being deprived of this by women. Although this application is not brought on the basis that he is an incel, it is another troubling aspect of his profile.
For all these reasons, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order. The defendant poses an unacceptable risk of committing a serious terrorism offence if not either detained or supervised. Accordingly, I must make orders under s 38(5) of the THRO Act appointing two qualified psychiatrists, or two registered psychologists, or one qualified psychiatrist and one registered psychologist, or two qualified psychiatrists and two registered psychologists to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and directing Mr Holt to attend those examinations.

Should the Court make an IDO for 28 days?

In addition to seeking orders under s 38(5), the State also seeks an IDO for 28 days.
Section 41 of the THRO Act provides that the court may make an IDO in proceedings for a CDO (which these are) if it appears to the Court that the offender's "current custody (if any)" will expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO. "Current custody", for the purposes of s 41, is defined in s 33 as "the custody to which the offender is subject at the time of the application". The words "(if any)" in s 41 cover the possibility of an application for a CDO being made in respect of a "supervised offender", as opposed to a "detained offender": s 37(1)(b), THRO Act.
In State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101 ("Lawrence"), Fullerton J considered competing arguments as to whether "current custody" refers to the custody referable to the index offence which founds the Court's jurisdiction under the THRO Act, or to any other lawful custody (including for matters other than the index offences). Her Honour concluded it meant the former, stating at [71]: "In my view, it is the distinction between 'current custody' and 'lawful custody' which signifies that it is the custody referable to the index offence that is the subject of the definition of 'current custody' in ss 19 and 33. That same distinction also satisfies me that it is the custody referable to the index offence current as at the time the application is initiated which is the subject of consideration when interim orders are sought, namely whether that custody (if any) will, in the Court's judgment, likely expire before the final proceedings are determined. 'Lawful custody', on the other hand, has a distinct and separate meaning. While not defined in the Act, logic dictates it must refer to and include any additional or other sentence for which the defendant might be serving a period of imprisonment at the time the interim orders are made." (emphasis in original)
I agree with Fullerton J as to the meaning of "current custody in the THRO Act. Thus, although Mr Holt's lawful custody will not expire until September 2022, for the purposes of the THRO Act his "current custody" is his term of imprisonment in respect of the NSW firearms offences, which will expire on 9 September 2021. I am satisfied that his "current custody" will expire before this matter is finalised.
It was common ground that if I imposed an IDO or ISO it would be suspended for the term of the offender's "lawful custody" (his remaining term of imprisonment and any further custodial sentence for his most recent offences). Section 42(2) of the THRO Act provides that an IDO is suspended during any period the offender is in lawful custody (whether under the THRO Act or any other Act or law). There are other provisions in the THRO Act under which interim or final orders for either supervision or detention are suspended while the offender is in lawful custody under any Act or law: ss 26(7), 28(6) and 40(3).
The defendant submitted that there would be no utility in making a 28 day IDO because of the offender's other lawful custody. This argument turned on the interpretation of s 34(1)(a) of the THRO Act. The defendant submitted that there was no statutory requirement for Mr Holt to be subject to an IDO (either suspended or operative) at the time final orders are made. The State submitted that there was such a requirement. Thus, the parties joined issue as to the meaning of s 34(1)(a) of the THRO Act which, as stated above, provides as follows in relation to eligibility: (1) The Supreme Court may make an order for the continued detention of an eligible offender (called a continuing detention order) if: (a) the offender is a detained offender or supervised offender (or was a detained offender or supervised offender at the time the original application for the order was filed) … (emphasis added)
The State submitted that the Court would have no jurisdiction to make final orders unless, at the time of the final hearing, the defendant was either still serving his sentence for the NSW indictable offences (which he will not be) or was subject to another order imposed under the THRO ACT (such as an IDO). This is because of the requirement in s 34(1) that he be an "eligible offender" at that time. It was submitted that the defendant would cease to be an eligible offender if he were held in custody only in relation to Commonwealth offences. Thus, it was submitted that if the Court declined to impose an IDO now and the defendant was granted parole by the Commonwealth on short notice, orders could be required with great urgency at some point in the future.
The defendant, on the other hand, submitted that the Court would retain its jurisdiction to later make orders even if no IDO was made now because the defendant was an "eligible offender" at the time the application was made. It was submitted that if a defendant was an "eligible offender" at the time of the application, the Court could make orders at any later time. In support of this submission reliance was placed on the fact that s 34(1)(a) provides that a CDO may be made in respect of an offender who was supervised or detained under the THRO Act at the time of application (the words in parentheses). Thus, it was submitted, the THRO Act contemplates the making of a CDO in respect of an offender who is no longer detained or supervised under the THRO Act and is thus no longer an "eligible offender".
Counsel for the defendant was unable to locate any cases in which this Court has held that a defendant need only be an "eligible offender" at the time of the making of the application, although reliance was placed on Lawrence at [58] where Fullerton J observed that: "The definition of 'current custody' is also deployed in Part 3 of the Act in s 41 which concerns the making of an ISO. That section … mirrors the operation of s 27 which concerns the making of an ISO, save for the fact that s 41 provides expressly for an application being made even if the eligible offender is not in custody at the time of the application such that the only precondition to the making of an IDO is that there are proceedings on foot seeking a CDO. Turner v State of New South Wales [2019] NSWCA 164 makes that clear. In that case the Court held, for the purposes of s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) ('the CHRO Act') (s 18A being in precisely the same terms as s 41), that there is no express condition requiring that the person be in current custody when the IDO is made. The Court was satisfied that construction was consistent with the reasoning in Attorney General for New South Wales v Tillman [2007] NSWCA 119 that there is no temporal mandate limiting the power of the Court to hear and determine an application for an interim order, including a renewed order, except that proceedings for final relief are pending. This is consistent with s 41(a) of the Act such that the Court may make an IDO if it appears to the Court that the offender's current custody '(if any)' will expire before the proceedings are finally determined." (emphasis added)
This passage does not assist the defendant's argument. Fullerton J relied on the words "if any" and the decision of Turner v State of New South Wales [2019] NSWCA 164 ("Turner") as support for the proposition that an offender need not be subject to "current custody" at the time an IDO is made (provided that there are proceedings on foot for a CDO). It was only in that limited respect that her Honour stated that s 41 of the THRO Act was in "precisely the same terms" as s 18A of the CHRO Act, which was the provision considered in Turner. The two provisions are in fact in slightly different terms. Section 18A of the CHRO Act provides as follows in relation to an IDO: 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) 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 or continuing detention order. (emphasis added)
Section 18A of the CHRO Act refers to an order being made in relation to an "offender". An "offender" is defined in s 4A of the CHRO Act as follows: For the purposes of this Act, an offender is a person who: (a) is of or above 18 years of age, and (b) has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence. (emphasis added)
The CHRO Act provides that although an application for a CDO may only be made in respect of a detained or supervised offender (s 13B), an IDO under that Act may be made in respect of an offender who has at any time been sentenced to a term of imprisonment for a serious offence, provided that proceedings for a CDO are pending. Thus, under the CHRO Act, a person who has at any time been sentenced to imprisonment for a relevant offence will always be an "offender" for the purposes of making an IDO, regardless of whether they are in custody at the time the order is made.
In contrast, an order under ss 34 or 41 of the THRO Act may only be made in respect of an "eligible offender" which, as set out above, is relevantly defined in s 7 of the THRO Act as a person who is serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence.
Given that a CDO may only be made in relation to an eligible offender (s 34(1)), the question arises as to the effect of the words in parentheses in s 34(1)(a). That is, if a person must be detained or supervised at the time of the making of the relevant order (consistent with the definition of "eligible offender") and at the time an application is made (as required by s 37(1)), what work is left to do for the words in parentheses in s 34(1)(a)? I am satisfied that those words must be read consistently with the requirement that a person must be an eligible offender at the time of final orders. This meaning is confirmed when recourse is had to the relevant second reading speech: s 34 of the Interpretation Act 1987 (NSW).
The THRO Act was amended by the Justice Legislation Amendment Act (No 2) 2018 (NSW) which commenced on 21 June 2018. The amendments included enacting s 12A and adding the words in parentheses to s 34(1)(a) and s 20(a) as follows: [4] Section 12A Insert after section 12: 12A Persons under suspended orders to be treated as being supervised or detained under this Act A person in respect of whom an order under Part 2 or 3 has been made is to continue to be treated as being supervised or detained under this Act for the purposes of any definition for this Act set out in a provision of this Division that uses that expression even if the person's obligations under the order have been suspended. … [6] Section 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk Insert "(or was in custody or under supervision at the time the original application for the order was filed)" after "under supervision" in section 20 (a). [7] Section 34 Supreme Court may make continuing detention orders against eligible offenders if unacceptable risk Insert "(or was a detained offender or supervised offender at the time the original application for the order was filed)" after "supervised offender" in section 34 (1) (a).
The Bill was introduced in the Legislative Council, without item 4 (section 12A). The second reading speech in the Legislative Council stated the following regarding the amendments to ss 20 and 34 (referred to as items 5 and 6 of schedule 1.22) (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 May 2018 at 266): "Items [5] and [6] of schedule 1.22 seek to align orders under the Terrorism (High Risk Offenders) Act 2017 more closely with the equivalent post-sentence scheme that applies to high-risk sex and violent offenders under the Crimes (High Risk Offenders) Act 2006. Under the scheme applying to high-risk sex and violent offenders, the court can make a final order provided that, at the time of application, the offender was a supervised or detained offender. The existing equivalent terrorism provision requires the offender to continue to be a supervised or detained offender at the time the court makes the final decision. The effect of the existing Act is that the Supreme Court may make a final order under the Act only when an offender is in custody or is under supervision. … There may be circumstances in which interlocutory applications or separate proceedings such as appeals that reduce an offender's head sentence result in the offender no longer being deemed in current custody. Items [5] and [6] amend section 20 and section 34 to provide that an extended supervision order or a continuing detention order can be made in respect of an eligible offender who was in custody or under supervision at the time the application for the order was filed, including where the offender has since ceased to be in custody or under supervision." (emphasis added)
The purpose of the words in parentheses is thus not, as was contended for by the defendant, to remove any requirement that a defendant be an eligible offender at the time of the final orders. On the contrary, express reference is made in the Second Reading Speech to the requirement that a person be an eligible offender in order for final orders to be made. Rather, the intention was to provide for the particular situation described in the second reading speech; where a successful appeal reduces an offender's head sentence with the result that his or her head sentence has expired by the time of the final orders. I shall return to this amendment below at [155].
As at 23 May 2018, when the above speech was made, s 12A had not as yet been inserted into the Bill. The second reading speech in the Legislative Assembly was made after adding the s 12A amendment. In that context, the Attorney General said the following (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2018 at 1731): "The Terrorism (High Risk Offenders) Act 2017, which the Government introduced last year, assists in mitigating the terrorism risk. The Act enables the State to apply for the post-sentence supervision in the community or detention in a correctional centre of offenders who pose an unacceptable risk of committing a serious terrorism offence if not kept under supervision or detained. The bill before the House seeks, among other things, to amend the Terrorism (High Risk Offenders) Act to enable orders to be made provided the application commenced when the offender was under supervision or detained, even if they are not in custody at the time the final order is determined by the court. These amendments are contained in schedule 1.22 to the bill. I note the terms of the current section 20 of the Terrorism (High Risk Offenders) Act. If passed, schedule 1.22 [5] will amend the chapeau of section 20 (a) to read: The offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed). However, sections 7 and 10 of the Act define 'eligible offender' and 'convicted New South Wales terrorism activity offender' respectively as the person who is 'serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a New South Wales indictable offence'. As currently drafted, these provisions of the Act potentially create a jurisdictional issue for the court in deciding a final application under that Act and may not capture persons who are lawfully detained but whose interim or extended supervision orders are suspended by virtue of that lawful detention. The intention was to ensure, as much as possible, consistency between the operation of the Act and the Crimes (High Risk Offenders) Act, which applies to the post-sentence supervision and detention of high-risk sex and violent offenders. The issue has been brought to the Government's attention due to the factual circumstances of an offender who is currently in lawful custody but whose interim supervision order [ISO] is suspended by virtue of the operation of section 28 (6) of the Terrorism (High Risk Offenders) Act. There is a risk that without this amendment, offenders subject to ISOs or extended supervision orders may not be eligible for a final order under the Act on the basis that they are in lawful custody for other alleged offending, including alleged breaches of conditions of the ISO or extended supervision order [ESO]. The Government considers that this issue should be rectified by making it clear that the court has the jurisdiction relating to such offenders. The Government amendment to the bill will insert a new schedule 1.22 [4] which, if passed, will insert a new section 12A into the Act, providing that: A person in respect of whom an order under part 2 or 3 has been made is to continue to be treated as being supervised or detained under this Act for the purposes of any definition for this Act set out in a provision of this division that uses that expression even if the person's obligations under the order have been suspended. The amendment clarifies that a court may make a final order for a continuing detention order [CDO] or an ESO in relation to an offender regardless of whether the person's ESO or ISO has been suspended by operation of the Act. The amendments are to ensure that there can be no doubt that a court has jurisdiction to make the final order under the Act in situations where an offender's ISO or ESO is suspended by virtue of the offender being in lawful custody. The Government has reacted as quickly as possible to respond and address this issue and ensure community safety." (emphasis added)
The terms of s 12A are clear. It relevantly provides that where an order is made under Parts 2 or 3 of the THRO Act, a person is to be treated as being "supervised or detained" under the THRO Act for the purposes of any definition, even if the order is suspended. The amendment to both ss 20(a) and 34(1)(a) was to cover the much less common situation where an offender's sentence is reduced on appeal at a time an application under the THRO Act is on foot.
I am satisfied that s 34 of the THRO Act provides that a person must still be an eligible offender at the time of the making of final orders and I do not accept the defendant's construction of s 34(1)(a), that being that a person does not need to be an eligible offender at the time final orders are made. It is inconsistent with the terms of s 34(1) and the second reading speech. I will return to the question of whether the amendment achieves its stated aim below at [155].
That leaves the remaining question of whether I would exercise my discretion under s 41 of the THRO Act to make an IDO at this time.
As was submitted on behalf of the State, Mr Holt's parole for the Commonwealth offences (which will be determined by a delegate of the Commonwealth Attorney-General) could be granted on short notice. It is also unknown what sentence might be imposed for the NSW offences of producing child abuse material. Although it was accepted that it would be possible to apply for interim orders if the defendant was granted parole, it could be necessary to do so on very short notice given the many "unknowns" in the defendant's custodial situation.
There is certainly precedent for this Court making an IDO in full knowledge it will be suspended. I did so in State of New South Wales v Dunn [2018] NSWSC 1008. The State relied upon the decisions in Lawrence and State of New South Wales v Elmir [2019] NSWSC 263 ("Elmir") as further examples of this.
In Lawrence, the defendant pleaded guilty and was sentenced in respect of additional offences in between the date the application was filed and the date of the hearing. That defendant's "current custody" was due to expire two days after the hearing but his non-parole period in relation to the additional offences was due to expire eight months after the hearing. Fullerton J declined to exercise the residual discretion not to grant the order due to the additional sentence imposed and the fact that the orders would be suspended during that term of imprisonment.
Similarly, in Elmir the defendant had pleaded guilty to Commonwealth offences and, while on remand for the Commonwealth offences, assaulted two NSW Corrective Services officers. The defendant was convicted of assault occasioning actual bodily harm (the NSW indictable offences under the THRO Act) and the State subsequently sought orders under the THRO Act. The offender's custody in relation to the state offences was due to expire five days after the interim hearing. He was awaiting sentence for the Commonwealth matters. It was submitted in that case that the Court should decline to grant the orders on the basis of futility as it was anticipated that the defendant would receive a lengthy term of imprisonment in respect of the Commonwealth offences, which carried a maximum penalty of life imprisonment. Campbell J made the order sought and held at [28]-[30] that: "It would be entirely inappropriate for me to second-guess the sentencing judge. There is force in learned counsel's argument but as he acknowledged some recent sentences have been at the lower end, although perhaps those offences did not carry such a severe maximum penalty. But in any event it is impossible for me to say what Davies J will do. I do not have all the evidence that he will have in due course. In my view it is not futile to make the order even though it is likely to be suspended by reason of the defendant's continuation in custody. Moreover it is important that the necessary preliminary steps are followed before the State sentence expires. Acceding to an order now will ensure as well that the matter is ready to proceed to a final hearing with the benefit of expert opinion from Court appointed experts. Although Interim Supervision Orders and Extended Supervision Orders are suspended when the offender is in custody it seems to me there is nothing to stop the Court from dealing with the matter in accordance with its usual procedures while the offender serves a term of imprisonment for the Commonwealth offence, as I have been reminded by Mr Casselden. I should also record that serving a term of imprisonment for a Commonwealth indictable offence does not qualify an offender as an eligible offender for the purpose of the Act. For these reasons I exercise my discretion to make the interim order." (emphasis added)
Counsel for the defendant sought to distinguish these two cases. It was submitted that the offender in Lawrence had a pending right of appeal in relation to the sentence imposed since the application was filed and that that was the reason the Court had declined to exercise the discretion. In contrast, the defendant in this case was sentenced for the Commonwealth matters on 29 September 2017 and had not filed any appeal process at the date of hearing.
As for Elmir, the defendant submitted that it too was distinguishable because Campbell J wanted to avoid "second-guessing" the sentencing judge. It was submitted that the possibility of parole in the present case was distinguishable because it was "unlikely" that the defendant would be granted parole by the Commonwealth Attorney-General. The basis of this submission was that the defendant had previously been denied parole due to his "assessed risk of general, sexual and extremist violent offending" and this assessment was unlikely to change in future. It was further submitted that in the unlikely event that the defendant's custodial circumstances changed, the Court would still have jurisdiction to make the relevant orders.
I have had regard to the defendant's submissions but, ultimately, I am satisfied that the proper exercise of the discretion conferred under s 41 of the THRO Act militates in favour of making the order, the statutory requirements otherwise being satisfied. I can see no prejudice to the defendant in making the order, given that it will be suspended, but significant potential prejudice to the State if it has to make an urgent application to this Court at a later date.
A significant amount of court time is spent on urgent applications made under both the THRO Act and the CHRO Act. In making an IDO at this time I have had regard to the fact that in doing so I will avoid the potential need for such an urgent application to be made in this matter in the future.
Finally, I wish to make two observations about the THRO Act as currently drafted having considered the respective arguments in this matter.
First, the THRO Act is a NSW Act with the legislative purpose of preventing offences under Commonwealth law, which all terrorism offences are. Despite this, the definition of eligible offender in s 7 only includes offenders in custody for NSW offences. It is not apparent why the scope of the Act has been limited in this way. If the definition of eligible offender instead included offenders serving sentences for either NSW and/or Commonwealth offences, this application could have been brought 12 months later and the question of the efficacy of making an IDO that will inevitably be suspended would not have arisen.
Secondly, the relevant second reading speech explains that the 2018 amendments to ss 34(1)(a) and 20(a) of the THRO Act were made with the stated intention of capturing the situation where a person was an eligible offender at the time that the application was brought, no IDO or ISO had been made and (apparently without any notice to the State) an offender's sentence was suddenly reduced before the final hearing such that it expired by the time of the final hearing.It seems to me that the amendment made to s 34(1)(a) in 2018 to capture this (seemingly rare) situation has resulted in a potential ambiguity in s 34(1)(a). Although s 34 expressly states that a person must be an "eligible offender" as a statutory precondition to a CDO being made, s 34(1)(a) now also provides that the eligible offender need not be currently detained or supervised. A person who is not currently detained or supervised is not an "eligible offender". For reasons I have provided, I am satisfied that the statutory requirement to be an eligible offender remains unaltered since the 2018 amendment to s 34(1)(a). Despite this, the amendment to s 34(1)(a) has created an ambiguity that was no doubt unintended.

ORDERS

In consideration of the above, I make the following orders: 1. Pursuant to ss 41 and 42(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW), I order that the defendant be subject to an interim detention order for a period of 28 days commencing from 9 September 2021. 2. Pursuant to s 49(1) of the Terrorism (High Risk Offenders) Act, I order that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to at Order 1 above. 3. Pursuant to s 38(5) of the Terrorism (High Risk Offenders) Act: 1. I appoint Dr Andrew Ellis, a qualified psychiatrist and Dr Katie Seidler, a registered psychologist, to conduct separate psychiatric and psychological examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by 21 October 2021; and 2. I direct the defendant to attend those examinations. 1. Access to the court file in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access.

Amendments 02 September 2021 - Order 3(a) amended to include the names of the medical experts and a date by which the reports are to be provided to the Court 02 September 2021 - [156] amended accordingly 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: 02 September 2021

The defendant's custodial status

The defendant's aggregate sentence of 6 years imprisonment was imposed for the following NSW firearms offences: 1. Possess an unauthorised prohibited firearm, namely an imitation pump-action shotgun, contrary to s 7(1) of the Firearms Act 1996 (NSW) (maximum penalty of 14 years imprisonment, SNPP 4 years imprisonment); 2. Possess more than three unregistered firearms, contrary to s 51D(2) of the Firearms Act (2 counts) (maximum penalty of 20 years imprisonment, SNPP 10 years imprisonment); 3. Manufacturing firearms without a licence, contrary to s 50A(1) of the Firearms Act (maximum penalty of 10 years imprisonment).
A further sixteen offences under the Firearms Act were taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The sentence commenced on 10 September 2015 and will expire on 9 September 2021. The defendant's non-parole period of 3 years and 6 months imprisonment expired on 9 March 2019.
The defendant was charged with these offences on 10 September 2015 after police received information that he had been manufacturing weapons and talking about undertaking a public mass shooting. Following searches of his premises, as well as his mother's and grandfather's premises, 19 firearms were located with eight found to be in working order. Police also found 10 firearm parts, six knuckledusters, four slingshots, one flick-knife and over 500 rounds of ammunition.
Seizure of his two mobile phones disclosed illegal material which led to him being charged with a number of Commonwealth offences, namely, using a carriage service to solicit child pornography contrary to s 474.19(1)(a)(iv) Criminal Code (Cth), using a carriage service to send indecent material to a person under 16 contrary to s 474.27A(l) of the Criminal Code and using a carriage service to groom a person under 16 contrary to s 474.27(1) of the Criminal Code. In respect of these offences the defendant was sentenced to a head sentence of 3 years and 6 months imprisonment commencing on 10 March 2019 and expiring on 9 September 2022, with a non-parole period of 12 months imprisonment which expired on 9 March 2020.
The defendant's current total sentence thus does not expire until 9 September 2022 as he has been refused parole in respect of both the NSW and Commonwealth offences. His eligibility for parole in respect of the Commonwealth offences must be re-assessed before 28 February 2022.
As will be discussed further below, applications under either the THRO Act or the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act") cannot be brought more than 12 months before the expiration of the sentence a defendant is then serving. But, for reasons which are unclear, a person only comes within the terms of the THRO Act if he or she is serving a sentence for one or more NSW offences. Although the purpose of the Act is to reduce the risk that a person will commit a Commonwealth offence (of which the terrorism offences all are), a person serving a sentence for a Commonwealth offence is not caught by the THRO Act. I shall return to the problems caused by this later in these reasons.

Third statutory precondition: Is Mr Holt a "convicted NSW terrorism activity offender"? (ss 20(c), 34(1)(c))

Section 10 of the THRO Act defines a "convicted NSW terrorism activity offender" as follows: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.
Under s 100.1 of the Criminal Code (incorporated under s 4(1) of the THRO Act), a terrorist act is defined as an act done or a threat made with the intention of advancing a political, religious or ideological cause by coercing, or influencing by intimidation the government of a state, territory or country, or intimidating the public or a section of the public. The relevant act must be one that causes serious physical harm or death to a person, serious damage to property, endangers the life of a person other than the offender, creates a serious risk to the health or safety of the public or a section of the public or seriously interferes with, disrupts or destroys an electronic system. That definition is broad and encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [187].
The term "violent extremism" is not defined in the THRO Act. It was judicially considered in State of New South Wales v Elmir (Final) [2019] NSWSC 1867 by Walton J at [34] as follows: "The term 'violent extremism' is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines 'extremism' as '[t]he holding of extreme political or religious views; fanaticism'. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views. It was submitted by the plaintiff, correctly in my view, that the inclusion of the term 'violent extremism' was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, an act not directed at coercing the government or intimidating a section of the public."

Fourth statutory precondition: Is the Court 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 (s 20(d)) or in detention (s 34(1)(d))?

It is this fourth statutory precondition which requires a consideration of the supporting information in some detail. The Court may only impose a CDO or an ESO if it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention or under supervision.
The term "unacceptable risk" is not defined in the THRO Act, although ss 21 and 35 provide that the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.
In Naaman, the Court of Appeal set out at [29] the requirements of s 20(d) (equally applicable to the equivalent requirements of s 34(1)(d)). The phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") per Beazley P at [58], with whom Gleeson JA agreed. The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] per Basten JA. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
The relevant test for the making of orders following a preliminary hearing (as opposed to the final hearing) is set out in s 38(5) of the THRO Act. The Court must be satisfied: … that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order …
The application of this test has been likened to that of committal proceedings. As Johnson J stated in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [23]: "At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General (NSW) v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiffs case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]."

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (15)

Cited By (1)