State of New South Wales v Ibrahim

State of New South Wales v Ibrahim - [2021] NSWSC 793 - NSWSC 2021 case summary — Zoe

[11]

MR IBRAHIM'S NOTICE OF MOTION

By a notice of motion filed 29 April 2021, Mr Ibrahim sought leave to file an affidavit of Mr Saad Fariwala, dated 28 April 2021 ("the Fariwala Report").
The Court ultimately ruled that the notice of motion should be dismissed (and in doing so, treated the notice of motion as, in substance, being an application for leave to lead the further expert evidence in question). It was indicated that reasons would be given for that decision in conjunction with the primary decision of the Court in relation to the summons brought by the State. I propose to provide those reasons at this juncture as, in some respects, those reasons cast a light upon the predominant issues in the proceedings.
Issues of lateness and prejudice could be readily identified in the context of the notice of motion as could a further issue as to a failure of the Fariwala Report to satisfy the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") (see r 31.23). In my view, the application made on behalf of Mr Ibrahim occurred in circumstances where, as the State put it, Dr Jones' evidence did not ultimately withstand the scrutiny of cross-examination as to critical aspects of Mr Ibrahim's case in the midst of the concurrent evidence (which process occurred by consent) of Dr Shanahan and Dr Jones. The further expert evidence purported to traverse the same ground as covered by Dr Shanahan and Dr Jones.
However, I propose to commence with a contention advanced by the State that leave should not be granted because the application to admit the Fariwala Report was futile; a contention which, in my view, was correct. There were two significant issues with the Fariwala Report being admitted into evidence: 1. the first concerned whether the report was directed to any question relevant to the issues in the proceedings; and 2. the second was the expertise of Mr Fariwala to opine on the questions addressed by Dr Shanahan.
The Fariwala Report purported to answer six questions, based upon the opinion of Mr Fariwala, namely: 1. What specialised knowledge, study, experience and training is required for someone to give expert evidence on the interpretation and transmission of the Qur'an? 2. What specialised knowledge, study, experience and training is required for someone to give expert evidence on the interpretation and transmission of Hadith? 3. Are there any parts of the two reports where Dr Shanahan has provided an interpretation and transmission of the Qur'an? 4. Are there any parts of the two reports where Dr Shanahan has provided an interpretation and transmission of the Hadith? 5. Does Dr Shanahan have the requisite specialised knowledge based on his training, study or experience to give expert evidence in the interpretation and transmission of the Qur'an? 6. Does Dr Shanahan have the requisite specialised knowledge based on his training, study or experience to give expert evidence in the interpretation and transmission of the Hadith?
It is important to observe that, in providing the answers to those questions, and as conceded by counsel for Mr Ibrahim, Mr Fariwala was not, in fact, provided with any statements made by Mr Ibrahim as such. The Fariwala Report was responsive to Dr Shanahan's First Report, even though it may be noted that Dr Shanahan extracted some of Mr Ibrahim's statements in his reports. It follows that the State is correct to submit that the probative value of the Fariwala Report was to be judged insofar as it could rationally affect the Court's assessment of Dr Shanahan's evidence. It is in this respect that the Fariwala Report was misconceived.
The Fariwala Report essentially addressed the issue of whether Dr Shanahan had the appropriate expertise in the interpretation and scholarship of the Islamic text, the Qur'an and the Hadith. However, that approach misunderstood Dr Shanahan's evidence, which consideration is reflected in some of the arguments otherwise advanced on behalf of Mr Ibrahim with respect to the first predominant issue in these proceedings.
Dr Shanahan did not purport to be, an expert in the interpretation and scholarship of the Qur'an and the Hadith. Rather, Dr Shanahan's expertise was in Islamic Studies and the areas of political Islam and Islamic terrorist organisations (see Dr Shanahan's First Report at paras 2-5). Dr Shanahan was well qualified to give that evidence.
Dr Shanahan's First Report was not concerned with the analysis of Mr Ibrahim's statements and writings as matters of religious interpretation. The two key questions addressed by Dr Shanahan in his first report were questions that squarely arise under ss 10(1)(c)(i) and 10(1A)(a)(iii) of the THRO Act, namely: 1. Has Mr Ibrahim 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? 2. Has Mr Ibrahim made any other statement or carried out any other activity that otherwise advocates support for any terrorist act or violent extremism?
The first key question was directed at a comparison of Mr Ibrahim's use of language and the threats of violence promoted by, inter alia, certain terrorist organisations. Dr Shanahan identified expressions used in Mr Ibrahim's writing that he considered was connected to or drew upon certain Qur'anic references (in particular, the use of the term of "hypocrites" in a derogatory manner) (see Dr Shanahan's First Report at paras 13-15). Dr Shanahan then opined that this discourse also featured in the discourse of Al-Qa'ida and Islamic State, two Islamic terrorist organisations (see Dr Shanahan's First Report at paras 17-19). These are opinions with which Dr Jones agreed in cross-examination. These were not opinions as to how those aspects of the Qur'an should be interpreted within the Islamic faith, or whether Mr Ibrahim or those terrorist organisations used terms such as "hypocrite" consistently with a theologically sound interpretation of the Qur'an.
The Fariwala Report did not engage with those opinions. Its critique was of Dr Shanahan's purported interpretation of a number of the religious elements identified by Dr Shanahan (see Fariwala Report at paras 38-49 regarding "hypocrisy" within Islam). The emphasis in the Fariwala Report appears to be that the concept of hypocrisy in Islam, whilst often a "pejorative one", "does not however necessitate a vitriolic discourse or connection to violent deviant splinter groups like ISIS" (see the Fariwala Report at para 43). Whilst that notion may be accepted for the purposes of the ruling on the motion, the observation does not engage with the issue as to whether the discourse of hypocrisy had, in fact, been used in that way by terrorist organisations such as Islamic State, and whether that was language used by Mr Ibrahim, which were the questions to which Dr Shanahan's First Report was directed. In that respect, in my view, the Fariwala Report simply did not engage with Dr Shanahan's evidence.
The second key question in Dr Shanahan's First Report was directed at an assessment of whether Mr Ibrahim's statements advocated support for any terrorist act or violent extremism. Dr Shanahan identified a number of statements made by Mr Ibrahim that advocated for violence using Islamic terminology (with which Dr Jones agreed), and then proceeded to explain, based on his expertise in Islamic studies, what a number of those references were (see Dr Shanahan's First Report at para 21). Dr Shanahan's opinion was that each identified statement supported violent extremism because of the link between violence and an expressed religious view. Whilst his opinion was supported by his knowledge of Qur'anic references, that was knowledge of the Qur'an as a text and Dr Shanahan did not purport to rely upon any theological understanding and interpretation of the Qur'an.
I agree with the submission of the State that the distinction is made clear by a letter written by Mr Ibrahim on 30 September 2009, to which I will later refer, wherein Mr Ibrahim refers to the "Surate al fil". Dr Shanahan explained that that was a reference to a Qur'anic verse that told of the violent deaths of those who tried to invade Mecca. With that understanding of the Qur'anic reference, Dr Shanahan opined that Mr Ibrahim appeared to be advocating for violent deaths of certain individuals based on an extremist interpretation of Islamic sources. Mr Fariwala's response to that point appeared to be at paras 51-52 of the Fariwala Report (although no paragraph references to Dr Shanahan's reports were given by Mr Fariwala). The commentary there, namely, identification that that was a well-known chapter in the Qur'an, did not suggest that Dr Shanahan was incorrect in his description of the "Surate al fil", or that he had misunderstood it. Mr Fariwala's opinion, in that regard, could not rationally affect the assessment of Dr Shanahan's opinion regarding how Mr Ibrahim's reference to the "Surate al fil" should be characterised.
There was an element of the Fariwala Report which may have been potentially relevant insofar as it concerned how well known some of the passages of the Qur'an used by Mr Ibrahim were within the Islamic community. However, that issue connected to part of the opinion of Dr Shanahan, which was expressly withdrawn by the State, namely, that Mr Ibrahim has a higher level of understanding of textual material than a normal observant Muslim.
The Fariwala Report purported to challenge Dr Shanahan's opinion that Mr Ibrahim "appeared to have sufficient knowledge of particularised Islamic textual sources and history to be able to link threats of violence with some form of Islamic textual justification". More particularly, nothing in the Fariwala Report suggested that the matters identified by Dr Shanahan were not in fact Islamic religious references, or that Mr Ibrahim either did not have knowledge of those references or did not use those references in his statements, which were matters that could rationally bear upon whether the Court accepted Dr Shanahan's opinion.
Whilst the Fariwala Report did focus upon the theological interpretation of various Islamic religious texts it did not, therefore, address the questions raised by Dr Shanahan. Further, whilst Mr Fariwala plainly did have qualifications and training in respect of traditional Islamic religious sciences, his expertise does not extend to (whether as a matter of training, study or experience) any specialised knowledge of political Islam, political science, extremist violence or the understanding of Islamic terrorist organisations and more particularly, the discourse utilised by those organisations and their adherence.
Before turning to procedural considerations as such, two further matters may be identified in this context: 1. Mr Fariwala did not consider any of Mr Ibrahim's actual statements (as opposed to Dr Shanahan's discussion of some of them), and therefore, the Fariwala Report could not independently assist the Court to form a view as to questions posed by s 10(1)(c)(i) or s 10(1A)(a)(iii) of the THRO Act, which were the issues in dispute to which Dr Shanahan's evidence was clearly directed. 2. The question of whether Dr Shanahan has the appropriate expertise in the interpretation and scholarship of the Islamic religious texts, having regard to the subject matter of his opinions as discussed above, is a matter of law and, therefore, a matter for the disposition of this Court. as to. It is not a matter to be determined by another "expert" whose opinion is provided to the Court as, inter alia, a specialist in the Qur'an. The State submitted that there was no basis upon which this Court would conclude that it is only someone, within the Islamic faith, described as a "specialist in the Quran" who was able to give expert evidence in these proceedings as to the matters addressed by Dr Shanahan in his reports. That submission may be accepted. In Australian Cement v Adelaide Brighton [2001] NSWSC 645 at [4], Barrett J observed it was for the Court to identify the "specialised knowledge" that the expert had and the training, study or experience on which that specialised knowledge is based. Further, as stated in AAPT v Cable & Wireless Optus (1999) 32 ACSR 63; [1999] NSWSC 509 at [11], questions of law are matters for the Court to determine by the application of legal principles without the aid of expert evidence.
The State also contended that the evidence sought to be led in the Fariwala Report sought to contradict aspects of Dr Jones' evidence under cross-examination. One aspect, in that respect, was the apparent criticisms of Dr Shanahan's evidence, agreed to by Dr Jones, about the term "hypocrites" (see the Fariwala Report at paras 39, 43 and 56). There were many other aspects of Dr Jones' evidence which were criticised (directly or indirectly) in the Fariwala Report as follows: 1. Dr Jones agreed that whist he was not sure whether or not the quotations were exact quotations from the Qur'an, he agreed that the quotes used were "particularly of a violent nature"; 2. Dr Jones agreed that Dr Shanahan's statement that Mr Ibrahim had made statements on numerous occasions in which he advocated violence using Islamic terminology was "an entirely accurate statement"; 3. Dr Jones gave evidence as to verses from the Qur'an included in statements by Mr Ibrahim that "[t]hey're violent verses, that's for sure, and Dr Shanahan has rightly pointed that out"; 4. Dr Jones agreed that the language used by Mr Ibrahim could be considered to constitute threats of violence; 5. Dr Jones gave evidence that "it's quite likely, yes, he's used the same text that a violent extremist would've used"; 6. Dr Jones agreed that Mr Ibrahim had on a number of occasions used the term "hypocrites" in relation to acts of violence being perpetrated against them and that the term "hypocrites" is used as a pejorative term to apply to Muslims who possess weak faith; 7. Dr Jones agreed with Dr Shanahan's opinion in relation to there being a verse in the Qur'an which notes that the fires of hell await hypocrites; 8. Dr Jones agreed that the use of the term "hypocrites" in a derogatory manner and the making of threats against them, including use of the term "hypocrites" together with identification of a violent end that will befall them, has been a feature of the discourse of Al-Qa'ida and Islamic State; and 9. Dr Jones agreed that "one interpretation" is that Mr Ibrahim's statements were statements that advocated support for acts of violent extremism.
Having regard to that last mentioned discussion, as to the criticisms (directly or indirectly) contained in the Fariwala Report of Dr Jones' evidence, in my view, it was not appropriate to permit, in the midst of the concurrent evidence of Dr Shanahan and Dr Jones, a further expert report to be filed and relied upon which sought to contradict the evidence of Mr Ibrahim's own expert given under cross-examination, that having been the first occasion on which such evidence was even foreshadowed. The permission to adopt that approach would stand contrary to the proper control and restricting of the use of expert evidence, the interests in finality of litigation and orderly case management (even allowing in that latter respect some greater latitude in this case because of the restricted timelines associated with the matter).
In Chapman v Chapman [2007] NSWSC 1109 ("Chapman") at [4], Brereton J held that r 31.19 of the UCPR had the effect that, unless the Court otherwise orders, expert evidence may not be adduced at trial unless directions have been sought "promptly" under r 31.19 and, if directions are given, other than in accordance with those directions. "Promptly" was said to mean "as soon as it became apparent to a party that he or she may need to adduce expert evidence" and, his Honour further noted, "[t]hat obligation arises before an expert is retained, let alone before the expert provides a report": at [6]. Foremost amongst the purposes of this rule was that it enabled the Court to control the giving of expert evidence and restrict expert evidence to that which is reasonably required to resolve the proceedings: at [7].
Similarly, in Hrdavec v State of New South Wales [2018] NSWSC 1081 ("Hrdavec"), Fagan J considered a late application to serve expert evidence. His Honour referred to Chapman at [6]-[7] (see Hrdavec at [6]-[8]) and then said that, in circumstances where an expert report was served significantly late (at [9]): [9] [unless there was some compelling explanation for the plaintiff's delay or a clear case that the expert evidence would be important to the resolution of issues in the proceedings or some other powerful circumstance in favour of the reception of the evidence, I would not make directions under r 31.19 on such a belated application and would not permit the report to be used.
In Hrdavec, as in this matter, there was no explanation for the delay. Accordingly, the Court refused to permit the expert report in question to be adduced. The same approach is applicable here where the matter was part heard and the cross-examination of the expert witnesses had commenced and was substantially completed.
Those procedural considerations obviously attract issues concerning lateness and prejudice. Those concepts require some further context.
The relevant procedural background to the foreshadowed application and notice of motion was as follows: 1. Dr Shanahan's First Report was filed, and served on Mr Ibrahim, on 9 December 2020, more than four months prior to the hearing listed on 26 April 2021; 2. the orders of the Court made on 18 February 2021 required evidence to be filed and served by Mr Ibrahim by 5pm on 14 April 2021; 3. on 15 April 2021 Mr Ibrahim filed and served the Jones Report; 4. according to the affidavit of Mr Mohammad Khan, solicitor for Mr Ibrahim, Mr Ibrahim had formed the intention prior to 22 April 2021 to challenge the expertise of Dr Shanahan in areas of Qur'anic and Hadith interpretation; 5. the matter was listed for final hearing on 26 April 2021; 6. as previously mentioned, Mr Ibrahim's application for further expert evidence was made after the cross-examination of Dr Jones on 26 April 2021; 7. it may also be observed that the Fariwala Report, in many respects, agreed with the interpretation by Dr Shanahan as to the concept of "hypocrites" but sought to distinguish the term as one not necessitating vitriolic discourse. Similarly, the Fariwala Report did not disagree with Dr Shanahan's description of the references to "Surah Ad-Dukhan" but suggested that this verse had "no practical bearing in the world we live in today". Further, the Fariwala Report did not dispute the accuracy of Dr Shanahan's description of "Surate al fil". It was simply noted that it was a verse that was well known. In short, the reason originally given for the receipt of the further expert evidence, so as to deal with the accuracy or otherwise of the verses to which Dr Shanahan referred, did not ultimately materialise in the respects to which I have referred. As earlier mentioned, the Fariwala Report may be properly described as observations by a spiritual scholar in Islam as to Dr Shanahan's expertise as to the ways in which Qur'anic verses can generally be interpreted but without engaging specifically with Dr Shanahan's opinion insofar as it concerned s 20(c) of the THRO Act. 8. There was no dispute that Mr Ibrahim was well aware of the evidence sought to be given by Dr Shanahan in his report and the expertise he relied upon in that respect. In circumstances where there was ample opportunity to call evidence in reply and in addition to the evidence of Dr Jones. I do not consider the elaboration by Dr Shanahan upon his expertise in his extended curriculum vitae (marked Ex 3) offers any proper explanation for the late production of the Fariwala Report. By the time of the affirmation of the affidavit of Mohammad Khan, solicitor for Mr Ibrahim, on 29 April 2021 it had clearly been the intention of Mr Ibrahim to challenge Dr Shanahan's expertise. 9. A stronger case for admission of the Fariwala Report (although not a complete one) might have been given by Dr Shanahan's Second Report. However, any material objected to by counsel for Mr Ibrahim as "new evidence" in that report was not read by the State.
Further, in my view the grant of leave to file and rely upon the Fariwala Report at the stage of the proceedings where it was introduced would have caused real prejudice to the State.
In order to accord procedural fairness, Dr Shanahan must have an opportunity to respond to the Fariwala Report. Sufficient time needed to be provided to Dr Shanahan to provide (albeit within strict limits) a considered response including making any necessary enquiries.
Whilst the notice of motion was not listed until 14 May 2021, a procedure was identified which would have overcome that apparent difficulty. The State sought consent to the Fariwala Report being provided to Dr Shanahan in advance of the hearing so as to overcome the practical difficulties of Dr Shanahan being able to respond (assuming he was able to respond upon the receipt of that material). Mr Ibrahim did not consent to that procedure and the Court thereby determined not to adopt the procedure sought by the State. It may be further noted that, if Dr Shanahan was not in a position to meet the Fariwala Report, then the State may have sought to call further evidence.
It followed then that the question of prejudice then came to be considered on 20 May 2021, the second day of the hearing, in the circumstances of the prejudice then operating upon the State including the time constraints under which the proceedings were operating (the ISO ceased to operate from 21 May 2021).
The final factor in the ruling related to the Expert Witness Code of Conduct in Sch 7 to the UCPR ("the Code") was far from the most significant consideration in the disposition of the notice of motion. However, the State's submissions, in that respect, were not without substance.
The Fariwala Report did not refer to Mr Fariwala having been provided with the Code, nor to Mr Fariwala having reviewed and complied with the Code in the preparation of the Fariwala Report.
For this reason, it was contended by the State that the Fariwala Report was not prepared in accordance with r 31.23 of the UCPR and should not be admitted in evidence: r 31.23(3), unless the Court otherwise ordered. Oral evidence should also not be received from Mr Fariwala unless the Court was otherwise satisfied that Mr Fariwala had read the Code and agreed to be bound by it: r 31.23(4).
The requirement to satisfy the Code is the substantive consideration. The Court must be satisfied that the expert report in question was, in fact, prepared in compliance with the Code (see First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 at [6]-[11] and the authorities summarised therein). In this case, there was no further evidence called from Mr Fariwala addressing whether he had, in fact, read and complied with the Code.

[17]

The Fourth Precondition - Convicted Terrorism Activity Offender: s 20(c)

Section 20(c) of the THRO Act provides as follows: 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: … (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, …
As mentioned earlier here an issue is whether Mr Ibrahim was caught by the provisions of s 10(1)(c)(i) or s 10(1A)(a)(iii).
The term "convicted NSW terrorism activity offender" is relevantly defined in s 10(1) of the THRO Act as follows: (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.
The THRO Act contains s 10(1A), which is a "deeming provision" that brings certain conduct within the terms of s 10(1)(c) without limiting the conduct which might otherwise fall within the subsection: Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 ("Cheema") at [17], [63]-[65]. Section 10(1A) relevantly provides: (1A) Without limiting subsection (1)(c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and
Relevant to the consideration of s 10(1)(c) is the definition of the words used in the subsection, namely: 1. "advocacy support"; 2. a "terrorist act"; 3. "violent extremism".

[18]

Advocating Support

The THRO Act does not exhaustingly define "advocating" as used in s 10(1)(c): State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 ("Dunn") at [29] (per N Adams J).
Nonetheless, some additional observations may be made. Both s 10(1A)(a)(ii) and (iii) require that a comparison be made between the acts of the offender and the acts of a relevant person, group, organisation or ideology.
The expression "person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism" is found in both provisions. In Cheema, the Court rejected an argument that s 10(1A)(a)(ii) should be limited to using or displaying images or symbols which could reasonably be construed as advocating support for terrorist acts or violent extremism; or that the subjective intention of the person using or displaying the images or symbols should be imported into the subsection: see Cheema at [62]-[65], [82]-[85].
There is no requirement or specification in s 10(1A) as to when the relevant act of "advocacy" occurred. In Naaman No 2, there was evidence that the offender had placed a poster of Osama Bin Laden on his cell wall while in custody 17 years previously. Although it was unnecessary to determine the point, the Court of Appeal stated that, on one view, the THRO Act mandated that the offender was a "convicted NSW terrorism activity offender" by reason of s 10(1A)(a)(ii): at [26]. Further, in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [58], Bathurst CJ accepted that "the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism offender as a result of historical matters".
Section 10(2) makes clear that s 10(1)(c) applies "regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned". In other words, s 10(1)(c) "will apply irrespective of whether a person has been convicted of an offence connected with terrorism": Naaman No 2 at [22].

[19]

Terrorist Act

By s 4 of the THRO Act, the term "terrorist act", as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code Act 1995 (Cth) ("Criminal Code"). There, the term is defined as follows (see s 100.1): "terrorist act" means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public.
Subsections (2) and (3) referred to in the above definition read as follows: (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
In R v Lodhi [2006] NSWSC 584 at [75], Whealy J observed that the definition of "terrorist act" in the Criminal Code "postulates an action or threat of action of the widest possible kind".
Likewise, the Court of Appeal has described the term "terrorist act" as "very broadly defined": see Naaman No 2 at [27]. In State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 ("Cheema No 1") at [187], Johnson J observed that the "definition of 'terrorist act' includes a wide range of conduct extending to preparatory offences and other conduct falling short of the actual commission of terrorist acts which cause injury to persons or damage to property", noting that "the legislative intention underlying the wide range of conduct included in terrorist offences, being the protection of the community".
Paragraphs (b) and (c) of the definition in s 100.1 of the Criminal Code refer to certain actions or threats of action done with a particular "intention". The concept of "intention" is addressed in s 5.2 of the Criminal Code as follows: 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
In State of NSW v Ceissman [2018] NSWSC 508 ("Ceissman") at [78], Rothman J observed that "ordinarily, once action, not described in (3) of the definition [of terrorist act in the Criminal Code] is performed as part of, or in furtherance of, a broader political, religious, or ideological course, then the more probable inference is that it is performed with [the necessary intention under the Criminal Code]".

[22]

IS MR IBRAHIM A CONVICTED NSW TERRORISM ACTIVITY OFFENDER?

Mr Ibrahim contended that he had not made any statement or carried out any other activity that otherwise advocated support for any terrorist acts or violent extremism of the kind that fell within the ambit of s 10(1A)(a)(iii) of the THRO Act "in combination with s 10(1)(c)". In particular, it was contended that the Court could not be satisfied that any language used, or threats made, had either the character "of a kind that is promoted by a person, group of persons or organisations" or "an ideology, that supports terrorist acts or violent extremism".
In many respects, the case for Mr Ibrahim, as to this question, rests upon a contention that the evidence of Dr Jones should be preferred, either wholly or substantially, in preference to the expert of Dr Shanahan and, further, that Dr Shanahan's evidence should be rejected as lacking the requisite expertise.
In Mr Ibrahim's May Submissions, Mr Ibrahim sought to cast doubt upon Dr Shanahan's opinion by reference to the opinions of Drs Dayalan and Klamer.
It may be noted that in Mr Ibrahim's April Submissions, it was contended that the Court should reject Dr Shanahan's evidence that Mr Ibrahim's use of the Qur'an, Hadith and other Islamic references was indicative of someone with a higher level of understanding of Islamic textual material and should, rather, accept Dr Jones' evidence that Mr Ibrahim had a low-level of Islamic and Qur'anic knowledge and Hadith knowledge. That issue dissipated, due to Dr Shanahan's acceptance that Mr Ibrahim did not exhibit an understanding of those texts beyond a normal level of knowledge of textual material from an average Muslim. As a result, that issue fell away in Mr Ibrahim's May Submission but it should be noted that Mr Ibrahim relied upon that concession as going to Dr Shanahan's credit.
A related contention in Mr Ibrahim's April Submissions was that Dr Shanahan had, in the course of expressing a view as to Mr Ibrahim's understanding of Islamic textual material, conflated concepts of Islam and terrorism. It was submitted that whether Mr Ibrahim had a normal observant Muslim's knowledge or an average Muslim's knowledge of that textual material had no bearing upon whether he supported terrorism or violent terrorism. Reliance was placed upon Dr Jones' evidence that religiosity and religious participation can be associated with a reduction in criminal offending and anti-social behaviour as well as having other benefits in fostering an individual's wellbeing.
Before turning to the full panoply of submissions advanced by Mr Ibrahim in Mr Ibrahim's May Submissions, as to particular aspects of statements made by Mr Ibrahim (and their significance as to the resolution of this issue), it is appropriate to make some preliminary observations about those contentions, as follows: 1. The challenge to Dr Shanahan's expertise is ill-founded. As earlier mentioned, he does not purport to be an expert in the interpretation of scholarship of the Qur'an or the Hadith. Rather, his expertise is in Islamic studies and areas of political Islam and Islamic terrorist organisations about which he is well qualified to give evidence. This consideration has some significance as Mr Ibrahim's May Submissions sought to return to the contentions raised in the Fariwala Report with respect to which the Court had refused leave. 2. Having observed Drs Shanahan and Jones give evidence and having closely reviewed their respective opinions, broadly speaking, I prefer the evidence of Dr Shanahan. Dr Shanahan's evidence was measured and well-reasoned, whilst Dr Jones' evidence had tinges of advocacy. More significantly, the concessions made by Dr Jones in cross-examination, as discussed above, significantly undermined the force of his opinions. In any event, those opinions were diminished because of a failure to often engage with the evidence as to the language actually used by Mr Ibrahim in his various statements. As earlier mentioned, s 10(1A)(a)(iii) requires a comparison between acts and/or statements of Mr Ibrahim and those of a relevant person, group, organisation or ideology. It is necessary, therefore, that close attention be paid to what Mr Ibrahim actually said, a task that was scrupulously undertaken by Dr Shanahan (I will closely analyse those statements below). 3. I do not consider that Dr Shanahan's concession as to the knowledge of Mr Ibrahim as to Islamic texts (or lack thereof) undermines the credit of Dr Shanahan. That evidence was given prior to cross-examination and as Dr Shanahan explained in cross-examination (as to two exceptions, with respect to the Dr Shanahan's First Report): WITNESS SHANAHAN: One is reference that I made to the normal level of - normal level of knowledge of textual material. It could be expected from an average Muslim. I would withdraw that in terms of describing somebody as normal in Islamic sense. Given it's interpretive religion, it's not realistic to talk about what is normal or abnormal, or what is average. And there's also one term, an "abhir" which I have changed my view on. 1. Some reference should be made to the opinions of the court appointed experts in this respect. As I will discuss below, those experts expressed opinions specifically directed to the issue required for consideration under s 20(d) of the THRO Act. However, I do not consider the opinions or observations made by them, which were employed by Mr Ibrahim in his submissions on this topic, as discussed below, effectively cast doubt as to Dr Shanahan's opinions. 2. Dr Shanahan's opinions are directed to the specific statutory question posed by s 10(1A)(a)(iii) (as outlined below). In contrast, the expert opinions of court appointed experts, relied upon by Mr Ibrahim in Mr Ibrahim's May Submissions (at paras 9-13) to cast doubt about Dr Shanahan's opinion, were not. The aspects of the court appointed experts' opinions, relied upon by Mr Ibrahim, concerned whether or not the statements made by Mr Ibrahim reflected "true beliefs" or "delusions". However, it is not part of the statutory test under s 10(1A)(a)(iii) that the statements need to reflect "true beliefs". It is sufficient that: 1. Mr Ibrahim made the statement (which is not in question); and 2. that the statement 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. The court appointed experts did not opine on the latter question, and their evidence, as a psychiatrist and psychologist, respectively, cannot properly cast any doubt on Dr Shanahan's opinion on the question specifically posed by s 10(1A)(a)(iii).
It is ultimately a matter for the Court to determine, on the evidence, whether Mr Ibrahim is a convicted NSW terrorism activity offender either by virtue of the provisions of s 10(1A)(a)(iii) or s 10(1)(c)(i). The evidence relied upon by the State in support of its case, in that respect, is Dr Shanahan's First Report and evidence at the hearing. The following conclusions may be derived on the basis of Dr Shanahan's First Report: 1. Mr Ibrahim used language that "could be considered to constitute threats of violence promoted by a radical Islamist ideology", given that the language "mirrors the language used by some Islamist terrorist organisations"; and 2. Mr Ibrahim made statements "in which he advocates violence using Islamic terminology", including by identifying people as "enemies of Islam", dividing "the population into Muslims and non-Muslims/unbelievers/hypocrites" and justifying violence on religious grounds.
The first opinion is consistent with the conclusion that Mr Ibrahim had made threats of the kind that fall within the ambit of s 10(1A)(a)(iii) of the THRO Act. The second opinion is consistent with statements falling within the ambit of s 10(1)(c)(i) of the THRO Act.
Dr Shanahan also observed that he was struck by how Mr Ibrahim was able to quote particular elements of the Qur'an to justify violent actions across a range of chapters and verses.
Although there is repetition with my earlier summary of Dr Jones' concession in cross-examination, it is useful at this junction to recap on that evidence. Dr Jones agreed that: 1. if the quotes were from the Qur'an they were of a particularly violent nature; 2. Mr Ibrahim had made statements on numerous occasions in which he advocated violence using Islamic terminology; 3. Mr Ibrahim made statements that referenced Qur'anic verses that were of a particularly violent nature, as Dr Shanahan had "rightly pointed out"; 4. the language used by Mr Ibrahim could be considered to constitute threats of violence; 5. Mr Ibrahim had used the same text that a violent extremist group would have used; 6. Mr Ibrahim had on a number of occasions used the term "hypocrites" in relation to acts of violence being perpetrated against them and one meaning of "hypocrites" is that it is the pejorative term applied to Muslims who possess weak faith or who profess Islam whilst secretly working against it; 7. the use of the term "hypocrites" in a derogatory manner and the making of threats against "hypocrites" is a feature of the discourse of Al-Qa'ida and Islamic State, i.e. "those terrorist groups" and is precisely the kind of threat promoted by those groups; and 8. Mr Ibrahim made statements that, on one interpretation, are statements that advocate support for acts of violent extremism.
I will return to Dr Shanahan's conclusions, as referred to above, in the context of particular statements made by Mr Ibrahim identified below (referable to s 10(1A)(a)(iii) and s 10(1)(c)), but will first turn to a number of overarching proponents advanced by Mr Ibrahim in Mr Ibrahim's May Submissions.
Mr Ibrahim's contentions with respect to s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act are encapsulated in para 8 of Mr Ibrahim's May Submissions, which submission is extracted below: 8. The Plaintiff relies upon language used by Defendant is not evidence that constitutes a threat of violence of a kind that falls within s10(1A)(a)(iii), but rather the language has the following characteristics: i. The language used by the Defendant is the language of a delusion not violent extremism. ii. The language comprises largely incomprehensible statements born of the delusions and disorganized thought processes of the Defendant when he is mentally unwell. iii. Threatening language used by the Defendant is in pursuit of a personal agenda and not in pursuit of an ideological agenda. iv. The language mirrors language used by Muslims everywhere and the suggestion of Dr Shanahan that it 'mirrors the language used by a terrorist organisation' should be rejected as having no probative value. v. Violent language used in writings by the Defendant are mixed with other non-violent language. vi. The language used by the Defendant is largely comprised of religious themes which includes references and warnings about violence and punishment by Allah (god). This language includes references of 'judgement day' themes associated with Islam and eschatological themes which are common to religion.
Counsel for Mr Ibrahim then expanded upon those contentions over some 18 further pages. I accept the submission of the State that, in substance, those submissions call for the wholesale rejection of Dr Shanahan's opinion. I do not accept the contentions advanced by counsel for Mr Ibrahim, in that respect, partly due to my acceptance of Dr Shanahan's evidence, but also because of the particular observations I will not make as to various aspects of Mr Ibrahim's May Submissions (deriving from the submission in para 8, extracted above), together with the particular analysis I will later embark upon with respect to subject statements made by Mr Ibrahim that are referable to s 10(1A)(a)(iii) and or s 10(1)(c)(i).
Before turning to the particular statements, I will first direct attention to Mr Ibrahim's May Submissions deriving from para 8 by reference to each of the sub-paragraphs (i)-(vi) (appearing therein), even though some proceed at a level of generality.
Mr Ibrahim's submission as to para 8(i) consisted of the following propositions: 1. Whilst Mr Ibrahim used language that was threatening when he was mentally unwell, the language used by him does not advocate violence of a kind promoted by a person, group of persons or organisation, or ideology that supports terrorist acts or violent extremism. Rather, the threats are made in pursuit of a personal agenda. (I will return to the question of a personal agenda with respect to the submission under para 8(iii)). Thus, it was submitted that the Court could not be satisfied that the language used or threats made were of a character that was caught by the provisions of s 10(1A)(a)(iii). 2. Reference was made that there is no evidence of violent extremism (I will return to that submission by reference to the particular statements made by Mr Ibrahim below). Reliance was placed upon the opinion of Dr Dayalan, namely, that Mr Ibrahim did not hold any beliefs or commitments that increased his risk of engaging in violent extremism, although he has used religious beliefs to justify violence in his threats against perceived persecutors when acutely unwell. I have earlier dealt with why this evidence does not directly connect to whether Mr Ibrahim's statements or acts fall within the scope of s 10(1)(c)(i) or s 10(1A)(a)(iii). Moreover, the Dayalan Report represents, in this respect, Dr Dayalan's assessment of the risk of Mr Ibrahim engaging in violent extremism (as I will later discuss, Dr Dayalan considers the risk to be significant when Mr Ibrahim is mentally unwell). However, the opinion so expressed cannot be converted into an opinion simpliciter as to whether Mr Ibrahim falls within the scope of s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act. 3. It was contended by Mr Ibrahim that a delusion did not reflect any true beliefs he might hold. Thus, such delusions are not consistent with Mr Ibrahim holding extremist violent views. It was contended that Dr Klamer's evidence was that a delusion is not a true belief held by the person experiencing the delusion and was not indicative of Mr Ibrahim holding a belief or an ideological position. I have earlier dealt with why this contention and Dr Klamer's evidence does not diminish Dr Shanahan's opinion or significantly impact upon the resolution of the operation of the statutory test in this case. 4. It was contended that the language used by Mr Ibrahim did not transcend the character of the confused disordered thoughts of a mentally disturbed man who, because he is Muslim, happens to, at times, quote Qur'anic verses, verses which are commonly known and the subject of discourse amongst all who practice Islam. As Dr Klamer said in her evidence, "[w]hen people are experiencing those delusional beliefs … [it] wouldn't be uncommon to see evidence of a range of, you know, comments and views and beliefs that don't necessarily make sense together, yeah". The difficulty with this submission is that the actual language used by Mr Ibrahim needs to be closely evaluated and in context (in the manner that the Court will undertake below by reference to the opinions of Dr Shanahan in respect of that language).
There are two further difficulties with the contention by Mr Ibrahim that the statements made by him were really borne of delusions or disorganised thought processes associated with a mentally unwell person as opposed to any statements which may gain traction under s 10(1)(c)(i) or s 10(1A)(a)(iii). This is because: 1. This Court has accepted on numerous occasions, statements may fall within the ambit of s 10(1)(c)(i) and/or s 10(1A)(a)(iii), even if they were made at a time when the person was suffering from symptoms of mental illness: see Dunn at [135]-[140] (per N Adams J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [124]-[125] (per Wright J). 2. There are a number of statements relied upon by the State which are plainly "comprehensible" and/or do not appear to be the product of any "delusions or disorganised thought processes". Examples of this, as I will discuss later, include: 1. Mr Ibrahim's letter to Ali Ibrahim in September 2014; 2. Mr Ibrahim's letter Najwa Ibrahim; 3. Mr Ibrahim's telephone call to Karen Ibrahim in August 2009; and 4. Mr Ibrahim's letters to Alisha Kent in October 2017. It is in that context that the whole of his writings should be assessed. Further, given the form in which s 10(1)(c)(i) and s 10(1A)(a)(iii) are cast - "any statement", "a threat" - a single statement or threat of the relevant kind may suffice to bring a person within the scope of the statutory concept of a "convicted NSW terrorism activity offender".
Mr Ibrahim then makes the submission at paras 15-51 of Mr Ibrahim's May Submissions dealing with the question of whether the language used by Mr Ibrahim is Islamic eschatology. It was submitted that Mr Ibrahim suffers from schizophrenia and sometimes infuses his language with religious eschatological themes when making threats in pursuit of his personal agenda when in a deluded state.
Counsel for Mr Ibrahim advanced the following broad submissions in support of that contention: 15. The Defendant suffers from schizophrenia. He sometimes infuses his language with religious eschatological themes when making threats in pursuit of his personal agenda when in a deluded state. 16. Relevantly, Dr Eagle reports: [55] Mr Ibrahim said he prayed regularly as expected by his religion. When asked about using drugs and alcohol, he said "that's up to God to judge me for that. It doesn't even say that about non-believers." When asked what he meant by infidels, he said "non-believers. It's not my job" to judge and then said "its like pagans." He said "my religion says that Allah will punish them". [56] Mr Ibrahim said, "I will die for my faith but I don't mean I'll start killing people. I'll leave that up to Allah. I don't need to anyway. Allah will do it." He further stated "they just won't make it to heaven. I'm talking about the one's that wrong me. I'm pretty sure they know what they done wrong. That's why it hard to get my parole now" He said, "Allah will punish them and not get to heaven." He said, "inflict punishment - death or hellfire." When asked how he knew this, he said "my religion says that". [57] Mr Ibrahim practiced Ramadan. He said it was hard. [58] Mr Ibrahim said he had always been "knowledgeable" about his religion. He said he learnt scripture from 10 years old. He said he would read the Qur'an during his childhood. He said "that's me." He added "I'm not doing the punishment. I don't intend to harm anyone." When asked if Allah communicated with him, he said 'yeah". He said that this occurred "anyway or though the body." When asked if Allah(god) requested he do things, he said "he's not asking me to do nothing." He said Allah(god) would never do that because he "would do it himself". 17. What the Defendant has said above to Dr Eagle and in the telephone call to his sister Manal Ibrahim on 17 February 2019, is born out by the nature of the writings in letters and on the cell wall - they are Judgement day themes where Allah(god) will bring about the punishment. 18. That the Defendant is referring to punishment by a God rather than man in an eschatological sense of judgment day concepts, is well illustrated in what the Defendant said in the ERISP he participated in on 23 February 2016 for the Robbery offence prior to his last incarceration. At the time he was assessed as being mentally unwell and a week before the ERISP, he had told his treating Psychiatrist that he "was getting out of control". 19. During the ERISP the Defendant told the interviewing police that the police who stopped him "…put their life in danger" (A35). When questioned about this by the interviewers, the Defendant went on to describe that "a massacre" was going to happen (A38) and that, there was going to be a war between "us and youse" (A48). The Defendant is clearly delusional in the interview during which he describes, "The war's gonna happen, no matter what happens" (A47) "between my army, and the world"(A49-50). He states, "I've got my own huge army" (A53), which he describes as being "from other parallel worlds" (A54). He is not referring to any army in this world. 20. Contrary to the political positions of Al'Qaeda and ISIS Islamic terrorist groups who promote violent extremism, the defendant describes his ally as being Israel (A56-58). This is inconsistent to an alleged supporter of either of the above terrorist groups. 21. That he is referring to God made punishments and not punishments to be inflicted by man in this world, is evident from his description of the war being "between truth and falsehood" (A 59-60). When asked if anyone was helping him he stated, "My God, Allah" (A69). 22. Significantly, the Defendant makes it very clear he is not threatening the police or anyone, he states repeatedly that what he is saying is "not a threat. It's a warning." (A 86, A 112 and elsewhere in the ERISP) and he makes a clear distinction between a threat and a warning, concluding that what he is talking about is a "prophecy". A130. All right, it's a prophecy. Q131. OK A131. That's it. It's between truth and falsehood. Q132. All right. A132. I'm being straight up with youse. I'm not, I'm not threatening you. … 23. As in the ERISP example, the Defendant, when deluded, has referenced theological concepts relating to final events of history, the end of the world and Judgment day themes. He has not made direct threats to anyone and the evidence relied upon by the Plaintiff does not support that he was going to act in any way to commit a terror act or express violent extremism. 24. All the religious writings can be interpreted to mean that the Defendant believed that the people to whom he is referring will be judged and punished in the end, and that Allah (god) would make the decision on Judgement Day. 25. Many of the verses the Defendant has quoted are references to supernatural events where God will Punish those who defy Him on the Day of Judgement. This is eschatology with no practical bearing in the world we live in today. [Footnotes omitted.]
Mr Ibrahim then submitted that the language in statements relied upon by the State from Dr Shanahan's reports were words that are commonly quoted from the Qur'an and the language used by Mr Ibrahim was of an eschatological character. It was submitted, in that respect, that the language used did no more than mirror the language of the Qur'an and that no weight should be given to any suggestion advanced by Dr Shanahan given that the language is commonly used discourse in the Islamic world.
Springing from that submission, counsel for Mr Ibrahim then made a lengthy submission traversing parts of Dr Shanahan's evidence as follows: 27. What Dr Shanahan has done, is to simply select extracts from the writings of the Defendant which refer to violence and prejorative [sic] language, however the Defendant submits that he does this out of context. For example; 1. Letter to Ali Ibrahim dated 22 September 2014 Prior to writing the following words; 'A DIRECT ATTACK ON THIS COUNTRY IT'S A GOOD FEELING ATTACKING AND KILLING POLICE officers, prison guards, judges, solicitors, police prosecution and Government nurses etc. And they can't do nothing about it I'm untouchable if you killa copper its life in jail' Mr Ibrahim wrote the following; PLOTTING AND PLANNING ON MY FILE. It says he went to the crisis unit because he was suicidal. That's where they were trying to kill me they tried so hard they actually thought that they were gonna kill me and if they did they would of said or willing to say he commit suicide. And theres no inmates around their that's where I attacked two of them in self-defense. They charged me with it 18 months later made up facts to cover their arses and convicted me. LAST LAGING MY CHARGES WERE ALL CORRUPTED THERE WAS CORRUPTION THROUGHOUT the case my charges were beatable they didn't charge me to convict me it took 2 years for one of the briefs to served I was denied leal contact Both visits and phone calls it took me 3 years to plead I plead guilty because there was so much corruption in my case so much Heads involved they would stictched me up. Now I don't like them and they don't like me Because we are going to war and there going to loose. Later in the same letter he states; No Mercy for you cunts the same way NO mercy for my freedom your corruption costs yous your lives. It is submitted that the above is consistent with a personal agenda and grievance held by Mr Ibrahim. It is words of a delusional man. It is context which should be given weight in assessing the words of Mr Ibrahim which is characterized by the Plaintiff as a threat of a kind promoted by a terrorist organization. Another Example is the Letter to Najwa Ibrahim dated 30 September 2009 Where Mr Ibrahim writes the following; EVERYONE KNEW MY CHARGES WERE CORRUPTED FROM DAY ONE MY PAROLE WAS CORRUPTED Subsequently he writes; YOU'S TRIED TO ALL KILL THE PROHPET OF ALLAH S.W.A YOUS ARE OFF YOUR FUCKEN HEADS VIOLENTS DEATHS NO-ONES GETTING AWAY SURATE AL FIL ESSPECT SURATE AL FIL ,KEVEN RUDD JULIA GILLIARD.. and subsequently writes; MONA KHOWATI SPIKED MY DRINK SET ME UP…ALL OFFICERS THAT WERE TRYING TO KILL ME IN JAIL At Exhibit 1, Page 181, Tab 24, he further writes; NONE OF YOUS ARE GONNA MAKE MY CORRUPT CHARGES LOOK LEGIT OF MY PAROLE REVOCATION LOOK LEGIT NO ONES GETTING AWAY ALLAH S.W.A SHEHYEF KULSGEE IVE GOT ALLAG S.W.A, YOUS HAVE GOT NO ONE. YOUS ALL KNEW MY REVOCATOIN OF PAROLE WAS CORRUPTEDMY CHARGES WAS CORREUPTED FROM DAY ONE. YOU'S CONCEIVED AN EVIL THOUGH YOUS ARE PEOPLE LOST IN WICKEDNESS. HELL IS YOUR ABODE 28. The above letters feature repeated themes of being 'set up', 'killed in jail' and 'corrupt charges' against Mr Ibrahim. It is a context of a personal grievance not in support of any ideology held by Mr Ibrahim. 29. Dr Shanahan agrees that he is not in a position to interpret the Qur'an and simply repeating something a particular extremist or terrorist group might repeat does not of itself support that the Defendant supports violent extremism. 30. Dr Shanahan agrees that his expertise does not extend to having expertise in interpreting the Qu'ran or Islamic theology. Further, the question of whether the language used, and statements made by the Defendant fall within the ambit of s 10 (1)(c) (iii), the Defendant relies upon the opinion of Dr Clarke Jones wherein he observed that whilst the Defendant has made several threats in his letters and in writing on his cell wall of which there are several examples, he reports: "One [example] states that "Muslims will rise up and violently defeat non-believers or Kufr". Yet, in making these threats, he also refers to extra-terrestrial intelligence, aliens, UFOs, "war of the worlds", "intergalactic war", and little green men. While I am not a mental health practitioner, there appears to be no logic to his thought process and subsequent writings, which seem delusional rather than representing a rational plan for terrorist action. The psychiatric reports by Dr Elliot and Dr Eagle, dated 4 November 2019 and 19 November 2019, respectively, also make similar conclusions in their diagnosis, and assess that Mr Ibrahim has chronic paranoid schizophrenia, which has been complicated by a history of drug abuse." 31. As observed by Dr Clarke Jones, in his report and in his evidence, words suggested by Dr Shanahan as the language of Al Qaeda, such as 'hypocrites' which although are words which feature in the discourse of Al - Qaeda Islamic State, are drawn from the Qur'an and are not unique or specific to Al-Qaeda. In the opinion of Dr Clarke Jones, any terrorist groups to which Dr Shanahan refers may have simply adopted the use of these terms due to their Qur'anic heritage. Quoting from verses of the Qur'an, which Qur'an is quoted by all Islamic groups, cannot be evidence that proves advocacy for a terrorist group or organization or violent extremism. 32. The Defendant submits Dr Shanahan simply takes concepts, verses and narrations from the Qur'an which are commonly shared by Muslim cohort in every land and place and then links them to terrorist groups such as ISIS and Al-Qaeda. His rationale is such that almost every Muslim would be seen to be agreeing with and amplifying the discourses of AQ, ISIS et al. The Defendant submits the Court could give no weight to such a rationale and his evidence in this regard has no probative value. 33. The only reference to the way in which the language mirrors an violent extremist Islamic State is he particular lecture and speech referred to by Dr Shanahan refers as being used by ISIS and Al-Qaeda at paragraphs 18 of his report dated 20 November 2020, were statements made at a time when the Defendant was in prison. This reference has no probative value. 34. Dr Dayalan opines on this issue at [60]: "There is no information to indicate that Mr Ibrahim had sought or used violent extremist material. He had written material that could be considered as violent extremism, whilst being acutely psychotic. He had identified targets in his statements whilst unwell. He did not identify any target for attack at the time of assessment." 35. Although the Defendant has made some statements which appear to be threatening of judges, police, and government more broadly, these statements were made when the defendant was unwell and importantly, again are suggestive of Judgment Day religious themes, and that they will answer to Allah. Furthermore, these statements were made in the context of delusional grievances the defendant held relating to the handling of his previous cases. Before making these statements the defendant states "CHARGES WERE ALL CORRUPTED THERE WAS CORRUPTION THROUGHOUT the case...". Following these statements the defendant states "...No Mercy for you cunts the same way NO mercy for my freedom". The context of these statements are further examined at paragraph 27 above. These statements are driven by a delusional agenda of revenge for personal grievances as opposed to an ideologically motivated threat.
Those submissions were followed by an analysis of the following: 1. Mr Ibrahim's writings on the cell wall were made at some point between 1 June 2017, when the defendant was placed in the cell, and mid-August 2017, when they were discovered by a Correctional Officer during a cell inspection ("the cell wall writings"); 2. Mr Ibrahim's letter to Zaky Mallah, dated 22 November 2004; 3. Mr Ibrahim's letter to Najwaa Ibrahim, his mother, in August 2009; and 4. Mr Ibrahim's telephone call to Karen Ibrahim, his ex-wife, in August 2009. Each of these, by and large, were discussed in Mr Ibrahim's April Submissions and repeated in Mr Ibrahim's May Submissions. (I will deal with those particular examples of statements and acts below in the context of considering the operation of s 10(1A)(a)(iii) and s 10(1)(c)(i)).
In a large part, the contentions of Mr Ibrahim, in these respects, appear to be that there are alternative religious interpretations of the verses quoted by Mr Ibrahim in some of his writings, as analysed by Dr Shanahan. Further, in many respects, the contentions resurrect the contentions raised in the Fariwala Report which Mr Ibrahim sought to rely upon by the notice of motion filed on 21 April 2021 to which the Court refused leave (my reasons, in that respect, appear earlier in this judgment under the heading "Mr Ibrahim's Notice of Motion"). Indeed, there was produced as an annexure to Mr Ibrahim's May Submissions, Annexure D, which provided a lengthy comparison between Dr Shanahan's First Report and the various unsourced content and commentary about Qur'anic verses.
As I have mentioned, whether or not the Qur'anic references identified by Dr Shanahan were also part of Islamic eschatology does not cast, in and of itself, any doubt on Dr Shanahan's opinion. Mr Ibrahim's contention was that there may be alternative religious interpretation of the verses quoted by Mr Ibrahim in some of his writings (as analysed by Dr Shanahan). These contentions fail for the same reasons as those articulated in the State's Index Submissions in response to the Mr Ibrahim's notice of motion (at paras 31-35). Whether or not any of the Qur'anic references are eschatological in nature cannot rationally challenge Dr Shanahan identification of those references as being sourced from the Qur'an, nor his opinion that those references are either being used in a manner consistent with that of Islamic terrorist groups (see at paras 17-19 of Dr Shanahan's First Report) or used to advocate violence (see at para 21 of Dr Shanahan's First Report).
In any event, as Dr Shanahan stated in his evidence, he did not accept that many of the texts to which Mr Ibrahim made reference were capable of being interpreted as Islamic eschatology. For example, he noted that the "Surate al fill" was not one, although the "Al-Dukhan" was. Dr Shanahan did not accept that Mr Ibrahim's writing simply exhibited judgment day themes. There was no suggestion in the evidence that the term "hypocrites" is an eschatological term.
It may be noted that a submission was advanced by Mr Ibrahim that Dr Shanahan was simply repeating "something a particular extremist or terrorist group might repeat" and that this did not in and of itself support the notion that Mr Ibrahim supports violent extremism. However, that was not the effect of Dr Shanahan's evidence, which I will return to below and discuss at length by reference to the statements made by Mr Ibrahim over time.
Mr Ibrahim's evidence next turned to what appeared to be the topic identified in para 8(iii) of Mr Ibrahim's May Submissions under the heading "Personal grievances not political or ideological ones".
Under that heading, Mr Ibrahim made the following submissions: 1. Mr Ibrahim was interviewed by Dr Jones on 1 April 2021 (see para 10 of the Jones Report). Both Drs Shanahan and Jones agreed: 1. Mr Ibrahim had not made any pledge of loyalty to a person, group of persons or organisation or an ideology that supports terrorist acts or violent extremism; and 2. Mr Ibrahim had not used any symbol or image associated with a person, group of persons or an ideology that supports terrorist acts or violent extremism. 1. Reference was made to statements made by Mr Ibrahim in a letter to Najwaa Ibrahim (to which I will return). In particular, reliance was placed upon para 16 of the Jones Report, where Dr Jones stated: While Mr Ibrahim's remarks appear concerning, it is not uncommon in prison for inmates to make threatening remarks or even behave violently, blaming the system and everyone they perceive led them to prison, and their overall state of misfortune. The adaptation to imprisonment is almost always difficult and, at times, creates habits of thinking and acting that can be dysfunctional in periods of prison adjustment. In fact, "high rates of psychosis and other mental disorders are common in prisoner populations" (Chowdhury, et. Al., 2019, p. 1). 1. Reference was also made to letters that were written by Mr Ibrahim during periods of instability when he was paranoid. It was contended: 54. … None of the letters suggest any agenda other than a personal one, wherein the "some paranoid thinking around his sentence, corruption [and] government involvement", at one point becoming paranoid. In relation to the letter to Ali Ibrahim, there is no evidence of any relationship with, or promotion of support for Jack Roche. [Footnotes omitted.] That submission was supported with reference to para 11 of the Dayalan Report. 1. It was not denied that Mr Ibrahim had at times used violent language for a personal agenda. An example was provided: in January 2016, Mr Ibrahim spray painted a violent warning on the kerb outside his house to stop people from parking there because it interfered with the garbage collection. Although violent, it was submitted, Mr Ibrahim's agenda was "purely personal".
The broad thrust of these propositions, namely, that Mr Ibrahim's writings reflect a personal and not political agenda were put to Dr Shanahan in cross-examination and rejected by him. Dr Shanahan emphasised that Mr Ibrahim was "couching the language in peculiarly religious terms" and that the term "enemies of Islam" was a much broader threat that takes the violent language "out of the personal".
It may also be observed, the fact Mr Ibrahim may have used violent language for personal reasons (if that may be inferred from his acts in January 2016), that does not render the statutory tests in s 10(1)(c)(i) and s 10(1A)(a)(iii) as inapplicable to Mr Ibrahim's case. The question is, as I will discuss below, whether he has made statements which are caught by those statutory tests.
Lastly (aside from submissions made as to particular statements made by Mr Ibrahim), submissions were advanced under the heading "Defendant's Islamic beliefs not extreme".
The submissions advanced by Mr Ibrahim, in that respect, are extracted below: 56. It is submitted that there is nothing about the way in which the Defendant practices his religion which could suggest that he holds either extreme views or that he would engage in acts of violent extremism in furtherance of a religious ideological agenda. The defendant told Dr [Dayalan] that he "identified himself as a Sunni Muslim" but that he "was not a religious person" and that "he liked being a Muslim but did not follow the religion strictly." 57. It is common ground that the Defendant does not support any terrorist group or organization on religious or political grounds. The term violent extremist refers to persons who hold uncompromising and rigid policies or ideology, and support the use of violence to advance those view or related actions. 58. Dr Shanahan agrees, as a specialist in political Islam, that those who advocated violent extremism typically do not denounce their ideological positions. 59. The Plaintiff initially relied upon Dr Shanahan's reporting that the Defendant's use of the Qur'an, Hadith and other Islamic references is indicative of someone with a higher level of understanding of Islamic textual material, the relevance of which was always difficult to understand. However, Dr Shanahan subsequently agreed with Dr Clarke withdrawing those statements and agreeing that the level of knowledge of Islam is not a basis for determining that the Defendant is more likely to support terrorist acts of violence, extremism. 60. Dr Clark Jones pointed out: "There is no such thing as an average Muslim. You are either Muslim or you are not. All Muslims accept the unity of one God and accept that the prophet Muhammad is God's final messenger and accept the laws brought by the Prophet Muhammad. Therefore, a Muslim is a person that submits or surrenders to God, performs good deeds, follows Islam, and holds the Qur'an as his/her central book of guidance. Someone who is Muslim also models his/her life on the actions of Prophet Muhammad. Muslims agree that the Prophet Muhammad was the best example of a human being, excelling in both worldly and spiritual matters (Bilgrami, 1992).' 61. Dr Clarke Jones has assessed the defendant as having a "very low - level of Islamic Qur'anic knowledge" and he reported the defendant had told him he attended scripture classes when he was between 10 and 11, 12 years old, further reporting that the words and statement used by the defendant were easily able to be located searching online. Dr Clarke Jones does not agree the defendant had 'a higher-than-normal' understanding of Islamic Scripture or textual material, as suggested by Dr Shanahan. Furthermore, Dr Clarke Jones reported as follows: a. Defendant does not see himself at the devout practising [sic] Muslim possessing traits that do not sit well with Islam. b. He does not attend a Mosque. c. He does not pray five-time times a day (Salat - is an obligatory Muslim prayer which are performed five times each day and they are the second Pillar of Islam to which all Muslims should apply and is a religious obligation of all Muslims). d. He is not part of an Islamic organisation or community group. e. He does not observe Ramadan or fast. f. He had his first sexual experience prior to marriage - in Islam, sex is seen as a gift from Allah and sexual relationships are restricted to marriage between a man and a woman. g. He has a long history of illicit substance abuse and drinks alcohol - Islam prohibits the ingestion of Khamr, which is any substance that intoxicates in whatever form and includes alcohol, drugs and inhalants. h. He gambles - the Qur'an condemns gambling. i. He has tattoos - the Quran condems [sic] tattoos. j. There was no reference to him having any religious devotion. k. His father is not a practising [sic] Muslim. Although his mother is a practising [sic] Muslim who prays five times per day and fast during Ramadan. 62. Dr Clarke Jones has assessed the defendant as having very low level of [Hadith knowledge], with the term Hadith being an "Arabic word, which literally means statement, talk, story, conversation, or communications." Dr Clarke Jones explained that Islam has two primary sources, the first being the Qur'an, which 'is the direct word of God inspired to the Prophet Muhammed" and the second source being the Prophet's teachings which "include his words, actions, and things he approved of" which teachings are called "Sunnah". The Sunnah is found in text called Hadith and included in those text, there is a passage that Hadith "there is a passage in which the prophet Mohammed condemns those Muslims who do not say the "Salawat". Dr Clark Jones observes that in the defendant "letters and in the writings on his cell wall, he does not pay the usual respect when referring to the Prophet Mohammed, and when he does pay respects, he uses it in the wrong context", and contrary to the usual practice, when Muslims refer to the Prophet, which is contrary to the 'usual practice when muslins refer to the Prophet Muhammad, they proceed with the saying or acronym, "peace be upon him" (PBUH) or Alayyhi As-Salam. 63. There is no evidence to support or suggest that the defendant holds either religious or political views consistent with violent extremism. [Footnotes omitted.]
I agree with the submission of the State that the proposition contained in para 58 of Mr Ibrahim's submissions, extracted above, misdescribes the evidence of Dr Shanahan.
Although Dr Shanahan accepted that "generally" those who advocate violent extremism do not denounce their positions, he was very clear in stating that this depended "on the circumstances. Generally, no, but if there's a greater aim to be achieved, it - it happens". Further, he went on to observe: It depends whether you utter that publicly or hold it inside yourself" and that he was aware from his experience that "people who are captured or detained will deny any adherence to radical Islam, but within a closed circumstances where they're not in trouble, they will freely express those things.
I also agree with the submission of the State that Dr Shanahan's evidence does not support the submission advanced on behalf of Mr Ibrahim, that simply because he described himself as not being a religious person, did not necessarily warrant a finding that he did not hold extreme views or would not engage in violent extremism.
For reasons I have earlier given, I do not consider that Dr Shanahan's initial reliance upon Mr Ibrahim's use of the Qur'an, Hadith and other Islamic references as being indicative of someone with a higher level understanding of Islamic textual material undermines his credit. It may be further noted, in that respect, that Dr Jones was taken in cross-examination to that part of report in which, in substance, he opined that the traits exhibited by Mr Ibrahim were inconsistent with that of a highly observant Muslim. However, in cross-examination, Dr Jones accepted that "Dr Shanahan is right, that those who have committed acts of terrorism have had tattoos, have taken drugs, so, yes I agree with him in that context".
It follows that, for the variety of reasons mentioned above, that I do not accept Dr Shanahan's expert opinions as to the statements made by Mr Ibrahim and their relationship to the tests in s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act should be rejected. That has a significant bearing upon the disposition of the question raised with respect to this precondition but it is ultimately necessary for the Court to consider the context of the expert opinions in the light of the statements made by Mr Ibrahim to which I will now turn under headings corresponding to the statutory tests under s 10(1A)(a)(iii) and s 10(1)(c), respectively.

[24]

Letter to Ali Ibrahim, dated 22 September 2014

As explained by Dr Shanahan, examples of Mr Ibrahim using the term "hypocrites" in the context of threats of violence may be found in the letter that he sent to Ali Ibrahim from gaol on or about 22 September 2014.
The letter begins on page 1 with an account of Mr Ibrahim's belief that corrective officers tried to kill him. Mr Ibrahim had a persistent persecutory belief system involving a conspiracy by the Australian Government (or "the government" generally) to harm him, including by falsely imprisoning him and then killing him, probably because of his religion. The letter then continues with threats against Australia, the Australian Government and various government officials. An extract of that letter appears below: Now I don't like them and they don't me because we are going to war and there going to loose. It's a DIRECT ATTACK on this country. It's a good feeling ATTACKING and killing police officers, prison Guards, Judges, soliceters, police prosecution and Government Nurses etc. And they cant do nothing about it I'm untouchable if you kill A copper its life in Jail. This is An attack on the whole country LAW AND All and not a day in Jail. They ARE Hoping that somehow through time I die do that they dont cop the punishment Fucken Oath it's going to be mad Attacking AustRALIA Running in On them in their houses draging them to A violent death were gonna see how hectic you are then No Mercy for you cunts the Same Way No MERCY for my freedom your corruption costed yous your lives We ARE a couple of years Away FROM the attack on Australia I'm gonna leave my mark you's are NEVER gonna forget me us Attacking the law And getting away with it Uphold the Right … AFTER we kill them then they we be punished in the GRAVE then to hell is where we send them you deserve hell-fire … and the Hypocrites. I WILL LEAVE A MARK ON THIS COUTNRY I WILL BECOME A PART OF HISTORY TO THIS COUNTRY I don't take shit from the Authorities, when they look at you their eyes slip with hate. Soon they will see and you will see who has been led astray. The day they will sink into A Fainting with horror Terror. The deaths will be violent we will strike terror into your hearts O prophet Do not Obey the hypocrites or the disbelievers. They are the two Main targets the Government and Muslims. My enemies are muslims but THESE Muslims We Will find them and we will kill them. O prophet Fight Against the hypocrites and the disbelievers and be harsh upon them their Refuge is hell. … Allah, SWA STATES IN THE QURAN FIGHT Against the Hypocrites That's why the Judge found me Guilty. Not only it's An Attack on this country, Several Judges who sat on My CASE when I did the four years are going to be killed.
Then, as identified by Dr Shanahan, the letter contains repeated references to "hypocrites" in the context of threats of violence. The full text of the passages identified by Dr Shanahan are as follows: We have prepared for the Government YOKES AND CHAINS AFTER WE KILL them Then they we be punished in the GRAVE. Then to Hell is where we send them you deserve hell-fire you And the Hypocrites. I WILL LEAVE A MARK ON THIS COUNTRY I WILL BECOME A part of history to this country. I Don't take shit from the Authorities, when they look at you their eyes slip with hate. Soon they will see and you will see who has been led astray. The Day they will sink into a Fainting with horror Terror. The death swill be violent we will strike terror into your hearts … O Prophet do not Obey the hypocrites or the disbelievers. They are the two main targets the Government and Muslims my enemies are Muslims. But these Muslims we will find them and we will kill them. O prophet Fight Against the hypocrites and the disbelievers and be harsh upon them their Refuge is hell. Allah has promised the hypocrite men and hypocrite women and the disbelieving men and disbelieving women the fire of hell … If you BACK EACH OTHER UP AGAINST HIM THEN GOD is his helper and Gabriel and all the Righteous ones among them further more all the other angels will back him up. If the Hypocrites and those in whose hearts is disease desist not then we will certainly stir you up against them then they will not be able to live in it as your neighbour except for a little they shall have a curse on them wherever they shall be seized and found they shall be slained without mercy such was the practice approved of God in those who lived a foretime no charge will you find in the practice approved of god. They ARE All DEAD and gone. And whoever does so does so to the harm of their own soul. Accursed wherever they shall be seized and found they shall be slaughtered with a terrible slaughter. A violent Death, the Death will be violent. We will strike terror into your hearts. The madest feeling is when your meters away from a killing and you can hear the Ambulance and cop sirens going off and the victim is on the ground screaming for his life then you hear the gunshot and the screaming stops. … We will certainly stir you up against them then we will curse them throughout the land then we will slaughter them without Mercy. The hypocrites thought they had NUMBERS. We are soon going to find our if they are Really as hard as they think they are. We are gonna invade your suburbs looking for you so we can kill you. Abdullah bin Ubayah is your leader. When I attacked Abdullah bin Ubayah the Hypocrites tryed to stop it do it makes them his people which means they are my enemies. After the conquest of MAKKAH The prophet Muhammad became very aggressive and violent…We broke your jaw and shot you left you for dead because you spiked My drink and nearly killed me and handed me over to police when I was on the Run… Allah S.W.A STATES IN THE QURAN FIGHT Against the Hypocrites That's why the Judge found me Guilty , Not only its An attack on this country several Judges who sat on my case when I did the four years are going to be killed. They sent their snitches to ASK to see if I was going to sew them or if I was gonna get the court transcripts. NO MAN WE ARE GOING TO WAR, A lot of people are going to be killed in a very violent way. Sink into fainting with horror.
Neither the opinions expressed by Dr Shanahan nor the significance of the language actually used by Mr Ibrahim is diminished by the proposition advanced by Dr Jones that a word such as "hypocrite" or "hypocrites" was commonly used in the English language or that the terms may be adopted due to their Qur'anic heritage. Whilst it may be accepted that Qur'anic verses are quoted by all Islamic groups and the fact of the use of them may not be evidence that proves advocacy for a terrorist group or organisation or violent extremism, Dr Shanahan's analysis was undertaken in a particular context, namely, the significant number of the writings of Mr Ibrahim and their relationship to the use of that language or similar expressions by the persons, groups or organisations or ideologies referred to in s 10(1A)(a)(iii). As such, I have had regard to and accept the opinion of Dr Shanahan as to the Mr Ibrahim's repeated use of "hypocrites" in the context of threats of violence.
I have earlier mentioned Mr Ibrahim's submission regarding mental illness but as I have discussed above and will return to below, there are aspects of his writings which do not appear to contain such a connection. Further, the language, properly analysed, falls within the scope of the provisions here under consideration.

[26]

Letter to Zaky Mallah, dated 22 November 2004

On or about 22 November 2004, while in custody, Mr Ibrahim wrote a letter to Zaky Mallah. Mr Ibrahim apparently met Mr Mallah in custody and maintained letter contact with him thereafter.
By way of context, Mr Mallah was at that time on remand, facing charges including two counts of doing an act in preparation for or in the planning of a terrorist act, contrary to s 101.6(1) of the Criminal Code. Those charges alleged that in September 2003 he had acquired a rifle and ammunition with the intention of killing Australian Security Intelligence Organisation ("ASIO") or Department of Foreign Affairs and Trade ("DFAT") officers, and that he had prepared photos and a video of himself in the nature of a "farewell" message to be played in the event of his martyrdom. He was also charged with recklessly making a threat to a person, to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person contrary to s 147.2 of the Criminal Code. This charge alleged that he had informed an undercover operative about a plan to enter a building and kill ASIO or DFAT officers.
In 2005, Mr Mallah was acquitted of the terrorism charges and pleaded guilty to the Commonwealth official charge. On 21 April 2005, he was sentenced by Wood CJ at CL to 2 years 6 months' imprisonment: R v Mallah [2005] NSWSC 317 at [1], [11], [14] and [21].
A CSNSW Intelligence Report (number 1777.04) dated 22 November 2004 extracted the following from a letter sent by Mr Ibrahim to Mr Mallah: SHOO ZEKKY, ARE YOU STILL ON SEGRO OR WHAT. HAD THEY LET YOU OUT ZAKKY? HAW'S YOUR SALAT? ARE YOU STILL FASTING MONDAYS & THURSDAYS? GOOD ON YOU BRO. INSHALLAH YOUR PLACE IS HIGH IN HEAVEN 'INSHALLAH~ YOU ARE A GOOD MUSLIM. THESE INFIDELS WILL NOT WIN. ALLAH HAS PROMISED US VICTORY WHO IS BETTER TO HAVE ONSIDE THAT THE ALMIGHTY ONE, NO - ONE. … WELL, I AM GOING TO END THIS LETTER MY MUSLIM BROTHER AND MAY ALLAH BE WITH YOU ALL THE WAY MY BROTHER AND MAKE YOU VICTORIOUS OVER THESE DISBELIEVERS. ALLAH MAAKK MY MUSLIM BROTHER.
The letter was written during a period of apparent stability in Mr Ibrahim's mental health condition. Mr Ibrahim had entered custody in April 2002. In a report dated 12 October 2005, while Mr Ibrahim was still in custody, Professor David Greenberg noted that a review of Justice Health records showed that "over the past three and a half years he has been compliant with his psychiatric medication and his mental state has remained stable during this period".
In relation to the letter to Mr Mallah, Dr Eagle reported that Mr Ibrahim told her he had met Mr Mallah in custody, and that he "denied any sympathy for extremist views purported to be held by Mr Mallah".
I do not consider that, as contended by Mr Ibrahim, these writings go no higher than reflecting "an innocent interest in a fellow Lebanese Muslim with a shared prison segregation experience". There is substance in the submission of the State that, whilst the letter does not contain a specific threat, it does provide a context in which to understand Mr Ibrahim's later writings.
Another difficulty with Mr Ibrahim's submissions is that they fail to take into account aspects of the correspondence such as "these infidels will not win", "Allah has promised us victory" and "may Allah be with you all the way my brother and make you victorious over these disbelievers".

[27]

Letter to Najwaa Ibrahim and telephone call to Karen Ibrahim, August 2009

In a further CSNSW Intelligence Report (number 1291.09), it was recorded that on or about 14 August 2009, while in custody, Mr Ibrahim wrote a letter to his mother, Najwaa Ibrahim. In that correspondence Mr Ibrahim wrote: ALSALAM ALAKOUM HI MUM HOW ARE YOU THIS IS A QUICK INSHALLAH IT REACHES YOU IN GOOD HEALTH MUM I WANT TO SAY SOMETHING TO YOU AND IM GOING TO BE STRAIGHT OUT IM NOT GOING TO PUT YOU OR ANYONE BEFORE ALLAH S.W.A AND IF YOU GO AGAINST ME OR GET IN THE WAY YOU'LL LOSE IT'S WHAT ALLAH S.W.A KNOWS AND THAT'S WHAT COUNTS I PUT ALLAH S.W.A BEFORE ANYONE IT'S WHAT I KNOW AND ALLAH S.W.A IS MY WITNESS DAD ALI AHMAD AND KAREN ARE ENEMIES OF ISLAM AND ANABIYA I SWORE BY ALLAH S.W.A AND MY RELIGION I CANT GO BACK ON IT AND IM NOT GOING TO THESE ARE KAFUR THERE NOT MY BLOOD THERE EVIL AND THERE ENEMIES AND UNDERSTAND THAT IT COULD NEVER BE SORTED OUT THEY WILL DIE IN KAFUR MUM I LOVE YOU AND EVERYTHING BUT I WONT PUT YOU OR ANYONE ELSE BEFORE ALLAH S.W.A THEY WILL BE DEALT WITH EVERY DOG GETS THEIR DAY DON'T TELL ME KNOW MORE THAT THERE YOUR BLOOD EVER AGAIN ANYWAY MUM IM GONA GO IVE BEEN THROUGH A LOT IN LIFE I WANT TO GO GET SOME REST SALMEH TO AMAL BASHER AND MANAL ANYWAY MUM IM GONA GO YALAH SALAM AKAKOUM ROSEH WEHSEH AH SAMAT AYUN ALKHEZLAN [Emphasis added.]
On the same date, Mr Ibrahim made a telephone call to Karen Ibrahim (his ex-wife) in which he made various threats, including: "I'm gonna rip your throat when I get out you rat … you're not a Muslim and you're not dying a Muslim".
Mr Ibrahim submitted that, although at the time the threats were made there were references to Islamic religious terminology, the threats ought be viewed in the context of Mr Ibrahim having a strictly personal agenda at a time when he was both mentally unwell and extremely upset about the divorce in his absence, the context including that he felt "persecuted by everyone" and, at that time, was "feeling upset about his divorce and having no contact with his children". That submission was supported with reference to the Dayalan Report (see para 34).
Although Mr Ibrahim at that time used religious language and appropriated the language of Islam and made reference to "sworn enemies", it was submitted that the letters relate to personal conflict and any violence in language must be considered in the context of a difficult personal and interpersonal conflict involving Mr Ibrahim's ex-wife. The use of the term "Kufar" means unbelief, "to be thankless", "to be faithless", or "ingratitude". It is not evidence of violence in furtherance of a terrorist or extremist violence agenda, it is rather violence infused with "thought disordered" and "deluded religious rantings".
It was further submitted by Mr Ibrahim that, at the time of making the threat, Mr Ibrahim was in custody and no doubt extremely frustrated, including a period in segregation, where there was no opportunity for him to carry out the threats and where the evidence did not support in any way and that at any time, he had any real intention to engage in actual physical violence towards his family.
However, I agree with the submission of the State that Mr Ibrahim's submissions fail to engage with the language actually used by him in the correspondence. The language is not entirely or strictly personal but it is apparent that there is a use of "universalising" and "totalising" language of a religious ideology, with Mr Ibrahim's perceived persecutors "othered" as "enemies of Islam" or "not Muslim".
In Dr Shanahan's First Report, he expressed the view that "[t]he mixing of references to Karen [Ibrahim] being an enemy of Islam and threatening to kill her supports the view that the violence he is threatening her with is based in whole or in part on an extreme religious view regarding the permissibility of killing of people he perceives to be enemies of his faith".
Both the letter and the telephone call were written and made in a period of apparent instability in Mr Ibrahim's mental health condition. Mr Ibrahim had entered custody in late 2008 in poor mental health, largely as a result of drug use and non-compliance with anti-psychotic medication, and this continued until at least mid-2009 when he re-commenced anti-psychotic medication (around the time that the communications occurred). Mr Ibrahim's mental health further deteriorated from October 2009, when he was "extracted from his cell and placed in segregation". Correctional Officers noted that "[w]hen in this state, [Mr Ibrahim] believes he answers only to Allah, and also that he is some form of prophet". However, the threats made by Mr Ibrahim were plainly comprehensible and do not appear to be the product of delusions; a consideration which is supported by Mr Ibrahim's submissions that they were personally vengeful.
Whilst it is clear that Mr Ibrahim was mentally unstable at the time of the writing of this letter and there was, in a sense, a personal agenda in that Mr Ibrahim was directing his invectives towards his ex-wife and father (who was assisting her in getting a divorce), there is no proper basis in my view to, on the evidence before the Court, to doubt the opinion expressed by Dr Shanahan as to the relevant connection between a statement, an advocacy for violent extremism or, alternatively, that threats of violence were made of the kind referred to in s 10(1A)(a)(iii).

[30]

Letter to Ali Ibrahim, dated 22 September 2014

As earlier mentioned, on or about 22 September 2014, Mr Ibrahim wrote a letter to Ali Ibrahim whilst in custody. I have earlier referred to this correspondence in a context of considering the operation of s 10(1A)(a)(iii).
In the letter, Mr Ibrahim used the term "hypocrites" in the context of threats of violence. Mr Ibrahim also wrote that he believed that corrective officers had tried to kill him, and that the Australian Government is going to harm him, including by falsely imprisoning him and then killing him, probably because of his religion. The letter then continued with threats against Australia, the Australian Government and various government officials.
Dr Shanahan provided the following opinion in relation to this letter: 19. Because of his liberal use of the term hypocrites when referring to the violent end that will befall them, and also other individuals by name and by position (judges), I am satisfied that this kind of threat is the same as that promoted by violent jihadist groups such as al-Qa'ida and Islamic State. As earlier mentioned, Dr Shanahan observed, with respect to this letter, that Mr Ibrahim divided the population into Muslims and non- Muslims/unbelievers/hypocrites (the "enemies of Islam") and made threats of violence against individuals, the country, the government and people in authority, which was justified on religious grounds. In Dr Shanahan's opinion, this demonstrated an extreme interpretation of Islam, which justified killing people perceived to be enemies of the faith.
During cross-examination, Dr Jones agreed with significant aspects of Dr Shanahan's evidence, namely, that: 1. the term "hypocrite" is the pejorative term applied to Muslims who possess weak faith, or who profess Islam while secretly working against it; 2. the use of the term "hypocrites" in a derogatory manner and in the making of threats against said "hypocrites" has been a feature of the discourse of Al-Qa'ida and Islamic State; and 3. use of term "hypocrites" together with the reference to a violent end is precisely the kind of threat that is promoted by groups such as Al-Qa'ida and Islamic State.
In Dr Shanahan's First Report, he observed that, in addition to the repeated references to "hypocrites", Mr Ibrahim also included the following statement: "Anabiya vs Australia. Anabiya won by way of terror. With horror". Dr Shanahan explained that "Anabiya" referred to the "gate or door to Paradise" and expressed the view that Mr Ibrahim "appear[ed] to be linking the notion of entering Paradise as being antithetical to his enemies and to Australia".
The letter was written during a period of apparent stability in Mr Ibrahim's mental health condition.

[32]

The Cell Wall Writings, June to August 2017

At some point between 1 June 2017, when Mr Ibrahim was placed in a cell at the John Morony Correctional Centre, and mid-August 2017, he covered the walls of his cell in writing which were later discovered by a Correctional Officer during a cell inspection (Mr Ibrahim was the only occupant of the cell at the relevant time and he conceded that he made them). The writings were photographed after discovery and thereafter were the subject of a CSNSW Intelligence Report.
In the Elliot Report, as to the cell wall writings (and various hand written letters of Mr Ibrahim), Dr Elliott opined: [T]he letters and the photographs of his cell walls consist of dense, rambling references to the Quran, threats to various persons, organisations and Australian society as a whole, and frankly deluded references to extra-terrestrial intelligence, little green men and grey aliens and the end of the world. Despite the consistent themes throughout the writings, it is also apparent that most of the entries are formally thought disordered. The consistent theme throughout is of a coming day of judgement whereby Muslims will rise up and violently defeat non-believers as supposedly predicted in the Quran.
Dr Elliott's overall impression of Mr Ibrahim's various writings, including the cell wall writings, was that "they are put prominently thought disordered, suggesting they are the product of Mr Ibrahim's mental illness, rather than an organised terrorist manifesto".
In relation to previous threats made by Mr Ibrahim (his letter writing and cell wall writings) Dr Eagle opined these were all "consistent with the disorganised thought processes often observed in those with schizophrenia and contain numerous references to psychotic symptoms such as bizarre persecutory delusions and referential beliefs (misinterpreting otherwise benign events or circumstances as having personal significant)".
Dr Dayalan observed that at the time of making the written and oral statements, whilst in the correctional environment, "his capacity to carry out the threats would have been quite restricted due to his placement within a correctional environment" whereas, whilst in the community, Mr Ibrahim is supported by his family members noting, "his family members would have assisted with Mr Ibrahim receiving treatment in an inpatient psychiatric facility in the context of acute relapse".
Dr Klamer reported in relation to what she described as the "range of religious verses on his cell wall", as including references to "extra-terrestrial intelligence, War of the Worlds, little green men, and grey aliens" suggestive of "delusional content" related to a "possible deterioration in Mr Ibrahim's mental health".
The cell wall writings contained statements such as: 1. "blow ourselves up"; 2. "multiple bombs rock Australia"; 3. a reference to "hypocrites" having a curse on them and being "slained without mercy"; 4. a quote from a passage in the chapter of the Qur'an, the Surah Ad-Dukhan; and 5. "when Allah SWA states in the Quran revenge his also referring to payback for the 4 years unlawful imprisonment".
In Dr Shanahan's First Report, he expressed the view that the cell wall writings link "religious references with acts of violence" and so constitute statements "in support of violent extremism".
Further, the period between June and August 2017 was a period of apparent stability in Mr Ibrahim's mental health condition. The relevant OIMS case notes and Justice Health progress/clinical notes did not indicate that Mr Ibrahim was experiencing mental ill-health at the time. On 6 August 2017, Mr Ibrahim was assessed by a consultant psychiatrist and was not found to be exhibiting psychotic symptoms. Further, his mental health presentation in October 2017 was noted to be stable.

[37]

UNACCEPTABLE RISK OF COMMITTING A SERIOUS TERRORISM OFFENCE: s 20(d)

The Court is only able to make an ESO if satisfied to a high degree of probability that Mr Ibrahim poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under such an order: s 20(d) of the THRO Act.
The task conferred on the Court by s 20(d) of the THRO Act is left largely unaffected by other provisions of the THRO Act, save that s 21 makes clear that the Court "is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence".
The elements of s 20(d) of the THRO Act were considered by the Court of Appeal in Naaman No 2. There, the Court of Appeal summarised the key aspects of the provision as follows (at [29]): (1) 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. (2) 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. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (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". (4) Fourthly, that forward-looking evaluation turns upon the premise that the eligible defendant 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. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised defendant committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an defendant 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 defendant were kept under supervision, that might ground an exercise of discretion to decline to make an order.
The test in s 20(d) is whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. The requirement of being satisfied to a "high degree of probability" imports a standard of proof that is higher than the civil standard but lower than the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the standard is a high one, it is important to recognise that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit an offence of the relevant kind (here, a serious terrorism offence), but, rather, that he or she poses an "unacceptable risk" of doing so: see example, The State of New South Wales v Sharpe [2017] NSWSC 469 at [51]; State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21], both decisions concern "unacceptable risk" in the context of the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act").
Whether a particular risk is "unacceptable" is an evaluative determination which falls to be made in the applicable statutory context in which the question arises: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [51]-[61], [116], [132]. In this respect, the Court must have regard to the primary protective purpose of the Act, namely - and as with the purpose of the CHRO Act - to "ensure the safety and protection of the community": Lynn at [55]. The phrase "unacceptable risk" is not defined in the THRO Act and should be given its everyday meaning within its context and having regard to the objects of the THRO Act: Dunn at [24], referring to Lynn at [58].
Reference may also be made to the judgment in Ceissman where the Court discussed the evaluative assessment required under s 20(d) of the THRO Act as follows (at [26]-[33]): [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. [27] The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant. [28] A risk that is insignificant is not an unacceptable risk, and therefore not a risk in my view, with which the Court should be concerned: see State of NSW v Pacey [2015] NSWSC 1983, per Harrison J who said: "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." [29] With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term "insignificant" instead of "very low". [30] The Court is required to look at risks that are not insignificant and which, on the material before the Court, if proved, would result in serious harm for which the Court ought prescribe precautions. The term "insignificant" is used not in its meaning as "not important", but, rather, as meaning "not fanciful" or "not ephemeral". [31] To utilise two deliberately extreme examples: if the risk were the detonation of a nuclear missile involving the death of many, only a very slight probability may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a high probability of its manifestation may not render the risk unacceptable. [32] Once that equation has been evaluated, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk. The high degree of probability does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk: Cornwell v Attorney General of NSW [2007] NSWCA 374 at [21], in regard to which one must now consider the terms of s 21 of the THRO Act (and 5D of the CHRO, although there are differences in wording that may be significant). The task is an evaluative one: State of NSW v Thurston [2018] NSWSC 421, per Garling J quoting Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57. [33] The unacceptable risk, as has been made clear, is the unacceptable risk of committing a serious terrorism offence and, in that respect, the "harm, hazard or loss" to which earlier reference has been made is qualified to become "harm, hazard or loss" occasioned by the commission of a serious terrorism offence.
"Serious terrorism offences" are defined to be offences against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s 4(1)). Those offences include: 1. engaging in a terrorist act (s 101.1); 2. doing acts in preparation for, or planning, a terrorist act (s 101.6); 3. membership of a terrorist organisation (s 102.3); 4. recruiting for a terrorist organisation (s 102.4); 5. getting funds to, from or for a terrorist organisation (s 102.6); and 6. 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.
In Naaman No 2, the Court of Appeal referred to the fact that the State had not particularised the serious terrorism offence upon which it relied, but did not suggest that there was any requirement of particularisation: at [39]. In State of New South Wales v Alam [2020] NSWSC 295 ("Alam") at [129], Wilson J held that it is not necessary for the Court to specify the serious terrorism offence as part of the Court's risk assessment function under the THRO Act. In Cheema No 1 at [189], Johnson J agreed with that statement and further observed: [189] … The risk assessment process is forward-looking: State of NSW v Naaman (No. 2) at [29]. It is sufficient if the Court is satisfied that the Defendant poses an unacceptable risk of committing "a serious terrorism offence". This extends far beyond the need for there to be a risk that the Defendant will himself commit a violent act or acts which fall within the definition of "terrorist act".
The answer to the questions raised by s 20(d) may be assisted by reference to some of the mandatory considerations for the making of an ESO set out in s 25(3) of the THRO Act (see State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [59]; see also, in the context of the CHRO Act, State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [42] ("Kamm (Final)"), referring with approval to Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [22])..
There were significant aspects of the State's submission summarising features of the material with respect to these considerations, which were uncontroversial and the evidence uncontested. Where not the subject of controversy, they have significantly informed the discussion of the mandatory factors which follow.

[38]

Schizophrenia

Mr Ibrahim has a complicated mental health presentation; of most significance, in that respect, is his diagnosis of schizophrenia (which he has had since the age of 21 years).
This diagnosis has been reached by multiple clinicians over an extended period of time, including (but not limited to): 1. Dr Dayalan in March 2021; 2. Dr Eagle in November 2020, November 2019 and January 2019; 3. Dr Elliott in November 2019 and January 2019; 4. Dr Olav Nielssen in June 2011; 5. Professor Greenberg in March 2011; 6. Dr Bruce Westmore in August 2003; 7. Dr Nazeer Ahmed in March 2000; and 8. Dr John Strum in 1999.
Mr Ibrahim's schizophrenia is properly characterised as a chronic condition with a remitting and relapsing course. His relapses into psychosis have occurred frequently over the course of his adult life, resulting in "nearly" 15 inpatient admissions to mental health facilities such as Banks House at Bankstown Hospital and Cumberland Hospital. He has also been subject to CTOs and Forensic Treatment Orders ("FTO") on at least 7 occasions, including in 1997, 1998, 2006, 2012, 2018, 2019 and 2020. The recent Forensic Community Treatment Order ("FCTO") (which became a CTO upon Mr Ibrahim's release from custody) was imposed on 23 October 2020 and will expire on 22 October 2021 (although it was scheduled to be reviewed by the Mental Health Review Tribunal on 22 April 2021).
He has a well-documented history of chronic psychotic illness characterised by delusions, hallucinations, disorganisation in thought form and bizarre behaviour with multiple admissions to psychiatric inpatient units at Bankstown and Cumberland Hospital in the context of acute psychotic episodes. His symptoms have persisted, even during periods of abstinence from illicit substances, and have contributed to impairment of his psychosocial functioning.
As will be discussed further below, a significant feature of Mr Ibrahim's schizophrenic relapses is his use of drugs (his substance use disorder is discussed below) and his non-compliance with medical treatment. I will return to the risk of relapse of Mr Ibrahim's mental health condition below.
Mr Ibrahim's schizophrenia has been characterised by a persistent persecutory belief system involving a conspiracy by the Australian Government (or "the government" generally) to harm him, including by falsely imprisoning him and then killing him, probably because of his religion.
I accept the submission of the State that the belief system appears to have arisen at some point during Mr Ibrahim's period in custody between October 2008 and July 2009.
In July 2010, while in custody, Mr Ibrahim was charged with: 1. Two counts of common assault (one charge was subsequently withdrawn); and 2. One count of assault occasioning actual bodily harm. The charges related to an incident (on 20 March 2009) in which Mr Ibrahim assaulted two Correctional Officers at Bathurst Correctional Centre, punching a female officer in the face (causing bruising) and then punching a male officer in the face (causing a cut to the bridge of the nose). The Local Court sentenced Mr Ibrahim to 9 months' imprisonment.
Shortly after his release from this period of custody, Mr Ibrahim told his parole officer the following (which was recorded in OIMS case notes): 1. that the Australian Government had corruptly imposed his previous sentence and attempted to murder him in custody "by gassing him"; 2. that he "fought back in self defence which is why he was charged for assaulting the custodial officers"; 3. that "the Aust Govt would get what is coming to them"; and 4. that "an Arab army called the Companions were going to start war on Australia" and that "they [the army] know what happened to him and will defend him" (the army being "not from another country, but from another world").
In the ensuing period, Mr Ibrahim had expressed similar persecutory beliefs to a range of other clinicians and persons involved in his custody or supervision. For instance, and without being exhaustive, in December 2018, he told Dr Elliott that "the government made a concerted effort to kill him in his cell by gassing him, electrocuting him and pouring acid on him" and that he was "being targeted specifically because of his Islamic faith". Likewise, in December 2018, he told Dr Eagle that "they set me up", "they gassed the room" and it was "because he was Muslim they wanted 'to get rid of me'".
Dr Klamer also noted that Mr Ibrahim used persecutory delusional beliefs to justify the use of violence against prison officers he viewed as having been involved in wrongly incarcerating him in 2014.
In March 2021, Mr Ibrahim told Dr Dayalan that the Australian Government "tried to poison me … They kept giving me more and more food when nothing was happening to me … They put [a] detonator in the speaker in my cell … gas in detonator and acid in shower". He also said that this persecution was "probably because of my religion", and when challenged about these beliefs, "was adamant that the government had tried to kill him whilst he had been in gaol". Dr Dayalan observed that Mr Ibrahim's "delusional beliefs have been refractory to treatment" and that "he continued to present with delusions at the time of assessment". At that time he had been receiving depot anti-psychotic medication since October 2019 and indeed received a depot injection in the weeks leading up to his assessment by Dr Dayalan. Dr Klamer also noted that Mr Ibrahim continued to possess some ongoing persecutory beliefs whilst overall presenting as stable in his mental health.
A matter of some significance is Mr Ibrahim's denial of holding persecutory beliefs (to Dr Eagle in October 2019 and Dr Elliot in November 2019) and his apparent attempts to provide answers in psychological or psychiatric assessments in anticipation of reporting which may have an adverse implication for him.
The State provided a useful summary of evidence bearing upon that question in the State's Index Submissions, which, relevantly, included the following: 1. Observations made by Dr Eagle in the Eagle Report about Mr Ibrahim included that: (a) Mr Ibrahim was guarded in relation to his thoughts at review and either could not or would not discuss previous behaviours or threats, beyond stating that he was sick. (b) restricted in affect; that "he provided minimal answers to questions and displayed an inflexible thinking style"; that he was guarded in relation to his thoughts; and that he was unable to describe previous experiences or account for previous behaviours except to say "I was sick at the time." (c) "Although [Mr Ibrahim] displayed superficial insight into substance use and aggression, he didn't accept responsibility for his behaviour attributing his behaviour to other factors external to him, he minimised and denied." (d) Mr Ibrahim continued to demonstrate adverse signs of poor judgment and planning impaired reasoning. (e) "Mr Ibrahim demonstrated a superficial reconsideration of his attitude towards violence as a means to achieve goals, but due to his apparently lack of responsibility for, or acknowledgment to previous aggressive behaviours, it's not clear that he has genuinely rejected violence as a means to an end" … In 2019 Dr Eagle noted that Mr Ibrahim has "shown the capacity to mask his symptoms and this is corroborated by reports from his family. 1. The State made reference in this respect to further illustrations extracted from the evidence before the Court: 30. In a telephone call from jail on 27 February 2019, Mr Ibrahim stated that he had told a psychiatrist that he was "sick" at the times he had made previous troubling statements and then referred to the use of the psychiatrist's evidence in court. 31. In October 2020, Mr Ibrahim told Justice Health Clinicians that he had been smoking Suboxone (buprenorphine) with the last usage 2 days ago. However, Mr Ibrahim told Dr Klamer that he had not used any substances since 2019. Mr Ibrahim also told Dr Eagle that he had not used any illicit or unprescribed substances this year [2020]. 32. On 5 January 2021, Mr Ibrahim told a clinician that he had been clean from illicit opioids for 5 months. That would make the date of Mr Ibrahim last using illicit opioids around August 2020. 33. On 24 February 2021 at a mental health assessment Mr Ibrahim denied using any substances in jail. 1. As to the Klamer Report, the State highlighted the following aspects of Dr Klamer's evidence: Dr Klamer stated that "On occasion throughout the interview Mr Ibrahim was observed to become agitated in response to specific questions asked of him. In particular these questions were related predominantly to his prior comments or behaviours of a violent aggressive or extremist nature". Dr Klamer observed that "In terms of the validity indices on Mr Ibrahim's profile, his responses suggested an individual who may have responded unusually to certain items. Furthermore, it was noted Mr Ibrahim may have responded in a manner that was not completely forthright, presenting himself as lacking in a common shortcoming most people admit to." Dr Klamer noted that this was common in assessments of this nature but recommended caution when interpreting the results. 1. As to the Dayalan Report, the State highlighted the following aspects of the Dr Dayalan's evidence: 26. Dr Dayalan identified inconsistencies between information provided by Mr Ibrahim and documents reviewed and identified that Mr Ibrahim was keen to make a positive impression. Dr Dayalan also noted that Mr Ibrahim was unable to explain why he had made a reference to Jack Roche in a letter he had sent. These inconsistencies as regards Mr Ibrahim's presentation could be attributable to memory defects or "intent to create a favourable impression." 1. As to the Elliott Report, the State made reference to the following aspects of the expert's evidence: 27. Dr Elliott, at an assessment conducted on 23 October 2019, observed that he quickly and assertively denied any history of substance use over the last nine months, and that he seemed initially terse and defensive with Dr Elliott but later became more animated. He stated that he was "sick" in the past as a means for explaining his concerning behaviour. Dr Elliot concluded that Mr Ibrahim was undoubtedly downplaying and guarding his delusional beliefs on this assessment. 1. As to the Anderson Report, the State noted the following: Dr Anderson stated that Mr Ibrahim "denie[d] use of illicit substances while incarcerated" and that he presented as superficially polite and calm, and that he was hypervigilant guarded both minimising of his psychotic experiences and externalising antecedents leading up to past violent behaviours throughout the interview. 1. Reference was also made to a case note report produced by the NSW Department of Corrective Services dated 25 November 2015. That State recorded: … in late November 2019 Mr Ibrahim recorded a positive urinalysis drug test and subsequently admitted that he had been using Bupe (buprenorphine) daily, ice occasionally and sleepers.

[46]

Question 4

As to the question 4, which concerned the likelihood of Mr Ibrahim committing a serious terrorism offence, it is again useful to extract the whole of the relevant passages of his opinion and, in that respect, noting that the full context of his opinion is given by reference to not only para 185 but also paras 188 and 192. That extract is as follows: 184. I have reviewed the statutory definition of "serious terrorism offence" in the Terrorism (High Risk Offenders) Act 2017. I am not aware of a risk assessment instrument that specifically measures the risk of a person committing "serious terrorism offence" as defined in the Act. My opinion is a clinical judgement that is guided by use of instruments that assess risk of violent behavior amongst individual with mental illness and risk of violent extremism. 185. In his current mental state, Mr Ibrahim does not pose an elevated risk of engaging in behavior that would constitute a serious terrorism offence. His risk of engaging in such behavior will increase in the context of relapse of acute psychosis. It is difficult to predict the extent of increase in this risk associated with such a relapse, as this risk can be influenced by a number of external factors such as his environment, personal support received at the time, accessibility to means and level of monitoring. 186. The written and oral statements made available for this assessment, were made by Mr Ibrahim whilst in a correctional environment. At the time of making these threats, his capacity to carry out the threats would have been quite restricted due to his placement within a correctional environment. 187. Whilst in the community, Mr Ibrahim has been supported by his family members though the level of support and contact has varied. His family members would have assisted with Mr Ibrahim receiving treatment in an inpatient psychiatric facility in the context of acute relapse. 188. In my opinion, the risk of Mr Ibrahim engaging in violence that is motivated by religious or ideological cause would be significant in the context of relapse of acute psychosis in the community whilst receiving minimal supervision and support, using illicit drugs and alcohol and having access to weapons. It should be noted that Mr Ibrahim has held a number of delusional beliefs during relapses and the risk of engaging in violent extremism is most relevant with intensification of his delusional belief that the government is trying to kill him due to his religion. 189. As mentioned earlier, my opinion has been guided by the use of VERA 2R that prompts the professional to consider the various risk indicators associated with violence extremism in forming their clinical opinion and use of HCR-20 which pertains to risk of violent behavior amongst individuals with psychiatric conditions. The results of the tools have been outlined in the section "Risk Assessment". 190. Mr Ibrahim has a history of violent behavior that has been driven by delusional beliefs such as the attack on the prison officers. There are also reports of Mr Ibrahim having assaulted his father though the reason for this behavior is not evident as Mr Ibrahim denied having assaulted his father during the assessment. He also admitted to have been in gang related violence within the correctional centres, that does not appear to be related to his schizophrenia. 191. Of concern, Mr Ibrahim has had access to firearms at various times and has also carried knives for the purposes of both committing crime and in self-defence when feeling paranoid. He has used firearms to threaten individuals to procure funds for his drug use and on one occasion, he had caused injuries to the victim whilst threatening with a firearm to get information from the victim. 192. In the context of being acutely unwell and having inadequate supervision, Mr Ibrahim poses a risk of engaging in physical acts of violence towards perceived persecutors, which can include his family members, certain government officials/staff, health professionals and potentially members of public that he may identify as non-believers or hypocrites. The acts of violence can involve use of weapons. The risk will be further increased by use of substances. [Emphasis added.]

[48]

Protective and risk mitigating indicators

I note that Dr Dayalan identified some protective and risk mitigating indicators, including support from family and services in the community. I will return to those topics later in this judgment but will extract some relevant passages here (see a paras 180-183): 180. A number of factors will be regarded as having contributed to Mr Ibrahim making the written and oral statements that have raised concerns. The delusional beliefs associated with his schizophrenia especially his belief about the Australian government's attempts to kill him whilst in custody would appear to be one of the main contributing factors. 181. Acute psychosis is also associated heightened levels of irritability, confusion and poor judgement. These symptoms of his illness would have also contributed to the threats made in his written and oral statements. From the information available, there is no evidence to suggest that Mr Ibrahim had made threats of violence motivated by religious beliefs, when his mental state was relatively stable. 182. In a systematic review on the relationship between mental health, radicalization and mass violence, there was some evidence that lone-actors might represent a specific subgroup of subjects with extreme beliefs which can be characterised by high prevalence of psychotic and/or mood disorders. The study also advised to take caution in interpreting this finding due to a number of methodological limitations of studies addressing this issue (Misiak et al 2018). 183. In my opinion, Mr Ibrahim making the written and oral statements recorded at Tab 5 was significantly influenced by his schizophrenia.
Returning to the questions 4 and 5b, I agree with the submission of the State that Dr Dayalan's ultimate conclusion on the issue of risk was that "[i]n his current mental state, Mr Ibrahim does not pose an elevated risk of engaging in behaviour that would constitute a serious terrorism offence" (para 185), but "[h]is risk of engaging in such behaviour will increase in the context of relapse of acute psychosis" (para 188). Further, the risk of Mr Ibrahim engaging in violence that is motivated by religious or ideological cause "would be significant in the context of relapse of acute psychosis in the community", particularly in circumstances where Mr Ibrahim was, inter alia, "receiving minimal supervision and support" and "using illicit drugs and alcohol". Thus, the answers provided at paras 185 and 188 concern, respectively, a question as to the likelihood of Mr Ibrahim committing a serious terrorism offence, whereas the statements at paras 196 and 197 of the Dayalan Report concerns the matters that may bear upon or contribute to that risk.

[50]

The Eagle Report

Mr Ibrahim referred to Dr Eagle's opinion that "on the basis of his current presentation, Mr Ibrahim is unlikely to be at increased risk of engaging in a violent act that is justified on the basis of an extreme religious or ideological belief". Mr Ibrahim also accepted that, in the context of a relapse of his mental illness, Dr Eagle was of the view that Mr Ibrahim's risk of engaging in violence that is justified or motivated by extreme ideological beliefs was significantly increased. Notwithstanding that acceptance, Mr Ibrahim then provided a summary of various aspects of Dr Eagle's opinion, supportive of Mr Ibrahim's current presentation, as follows: 1. Mr Ibrahim does not appear to be directed by the Islamic State or any other specific terrorist organisation; 2. it is not apparent that Mr Ibrahim has any ongoing association with persons who advocate support the terrorist act, or violent extremism; 3. Mr Ibrahim's family do not condone violence and there is no information to suggest that they have extreme ideological views or support violence; and 4. it is likely that Mr Ibrahim's family would attempt to access treatment for Mr Ibrahim if he was observed to be unwell, which would reduce the risk of relapse or engaging in an act of violent extremism.
It was then submitted by Mr Ibrahim that Dr Eagle had assessed that the majority of risk indicators across the four categories which were reviewed were ranked in the "low category" although some were ranked "low /moderate" and a small number of indicators were ranked in the "moderate" range. Reference was made to the overall risk using the Violence Extremism Risk Assessment - Version 2 revised ("VERA 2R") (provided at para 191 of the Eagle Report).
Reference was also made to Dr Eagle's opinion as to Mr Ibrahim's susceptibility to relapse in the community and, in particular, Dr Eagle assessed the Mr Ibrahim as being in the "low/moderate" category of susceptibility to influence, control or indoctrination, observing if experiencing mental illness, the defendant "would be susceptible to propaganda and indoctrination from violent extremists groups". Reference was also made to Dr Eagle's opinion that Mr Ibrahim was ranked as a low risk of seeking, using or developing violent extremist materials and reports.
Mr Ibrahim then submitted that Dr Eagle opined that there was no clear information to suggest that Mr Ibrahim's conduct was motivated by religious obligation or purification and attributed his previous violent behaviour as being motivated by "criminal opportunism". Dr Eagle further observed that whilst Mr Ibrahim has associated with "antisocial and pro - criminal peer groups", this does not appear to be a prominent feature of Mr Ibrahim's offending.
It is true that Dr Eagle made various assessments under various categories in her application of the VERA 2R. However, attention also needs to be directed to Dr Eagle's overall assessment of the risk posed by Mr Ibrahim, which was that he posed a moderate risk of engaging in an act of violent extremism in the community without adequate monitoring and support given his risk of relapse into mental illness.
Dr Eagle's ultimate conclusion on the issue of risk, similar to Dr Dayalan, was that "on the basis of his current presentation, Mr Ibrahim is unlikely to be at an increased risk of engaging in a violent act that is justified on the basis of an extreme religious or ideological belief", but that "in the context of a relapse of his mental illness, … [his] risk of engaging in violence that is justified or motivated by extreme ideological beliefs is significantly increased". Dr Eagle characterised the overall level of risk posed by Mr Ibrahim of "engaging in act of violent extremism in the community" as "moderate", "given [his] risk of relapse of his mental illness".
Dr Eagle also noted that this overall "moderate" risk is "likely to increase in the context of limited access to appropriate support and risk management strategies in the community and it would likely reduce with effective risk management, appropriate levels of support and assertive mental health treatment".
In Dr Eagle's view, the increase in risk flows from the fact that Mr Ibrahim's "ideological beliefs appear to intensify during acute relapses of his mental illness and incorporate bizarre persecutory delusions directed at various parties, including the Australian [G]overnment". The opinion of Dr Eagle was that "in the context of a relapse of his mental illness, Mr Ibrahim is at risk of engaging in violent acts that are motivated by a psychotic grievance and inspired or influenced by his religious or ideological beliefs".
When Mr Ibrahim is "acutely psychotic", he displayed, in Dr Eagle's opinion, "a number of risk factors that have been associated with acts of violence linked to extreme ideological beliefs", including: 1. "personal grievance and moral outrage"; 2. "ideological framing"; 3. "changes in thinking and emotion"; 4. "mental disorder"; 5. "criminal violence"; 6. "a willingness to die for his beliefs"; 7. "a lack of empathy for those outside his belief system (including his family)"; and 8. "expressed emotions [such as "moral outrage and anger"] in response to perceived injustice".
In terms of the precise nature of the conduct that Mr Ibrahim is at risk of engaging in, and its likely victims, Dr Eagle expressed the following view (similar to that of Dr Dayalan): In the context of a relapse of his mental illness, with the re-emergence of persecutory delusions and intense religious beliefs justifying violence, I am of the view that Mr Ibrahim is at risk of engaging in physical violence or threats, justified with reference to religious or ideological beliefs, and directed at those proximate to him or attempting to manage his behaviour, including his family, police or law enforcement officers, mental health clinicians or drug health clinicians. Given his previous conduct in carrying weapons, including knives and guns, when unwell, acts of violence could involve the use of a weapon. He has also previously made threats to behead others in order to achieve an end (protect a car park space at his family's home). The risk of these behaviours occurring is likely to increase in the context of a relapse of his illness.

[51]

Overall Assessment of the Opinion of the Experts

In my view, the Dayalan Report, the Klamer Report and the Eagle Report each make an assessment that Mr Ibrahim's risk of engaging in conduct that may constitute a serious terrorism offence is associated with the risk of him experiencing a relapse of his mental condition. Based upon those reports, there is no foundation for the contention advanced by Mr Ibrahim that it is not possible to even remotely envisage a single or combination of circumstances, even in the context of Mr Ibrahim becoming mentally unwell, that he poses an unacceptable risk of committing a terrorist act.
Each of the experts has, in fact, "envisaged" circumstances in which Mr Ibrahim was at risk of committing a serious terrorism offence; the relevant circumstances being, in essence, that he might suffer a deterioration in his mental health as a result of drug abuse and/or non-compliance with his medication regime and, in that context, engage in an act of violence that is justified by extreme religious or ideological beliefs. The likelihood of this risk coming to fruition has been characterised as "significant" by Dr Dayalan and "moderate" by Drs Klamer and Eagle, bearing in mind, as I will discuss further below, the high risk of Mr Ibrahim experiencing a relapse of his mental health condition if left unsupervised in the community.
A "significant" or "moderate" risk of an act of violence of the sort described above is properly considered to be "unacceptable" for the purpose of s 20(d) of the THRO Act, noting that, even a slim possibility of an offender committing an act with serious consequences for other persons and the community may be "unacceptable": see Naaman No 2 at [29(5)]. The experts foreshadowed such serious circumstances if the risk of acts of violence were to materialise in Mr Ibrahim's case.
This conclusion necessarily draws attention to the risk of relapse of Mr Ibrahim's mental condition and the related questions of the risk of relapse due to drug use or non-compliance with medical treatment. However, before turning to such considerations, it is appropriate to first turn to two related considerations, namely, Mr Ibrahim's susceptibility to influence and Mr Ibrahim's insight into his mental health conditions.

[54]

Risk of re-lapse of mental health condition

As mentioned, each of Dr Dayalan, Dr Klamer and Dr Eagle expressed the view that Mr Ibrahim presents a high risk of experiencing a relapse in his mental health condition in the absence of supervision.
Dr Eagle opined that Mr Ibrahim is at "high risk of relapse", "due to his lack of insight, substance use disorder, and repeated history of non-compliance with treatment".
Similarly, the court appointed experts drew attention to Mr Ibrahim's drug use and lack of compliance with medical treatment as factors relevant to his risk of relapse, and thus, his risk of committing conduct capable of constituting a serious terrorism offence. Dr Klamer emphasised the repeated and "continual nature" of Mr Ibrahim's drug-use over a long period. Dr Dayalan observed that Mr Ibrahim's "[u]se of illicit drugs such as crystal methamphetamine and cannabis will exacerbate his psychotic symptoms and will, therefore, have a bearing on the risk of engaging in violent behaviour justified by his religious/ideological beliefs".
In respect of non-compliance with medical treatment, Dr Dayalan expressed the view that "Mr Ibrahim poses a high risk of non-compliance with treatment especially his depot medication unless there are adequate external measures to ensure compliance" and that "[n]on-compliance with treatment is associated with a high risk of deterioration in his psychotic symptoms and therefore will indirectly increase his risk of engaging in an act of violent extremism".
The State also advanced a submission as to other factors suggesting that Mr Ibrahim is at higher risk of drug use in the absence of supervision, which I accept. Those factors were identified as follows: 1. Mr Ibrahim has a current diagnosis of substance use disorder and has been diagnosed with this disorder by multiple clinicians at various points in the past. 2. Mr Ibrahim has been a lifelong drug user, with his use beginning early in life and continuing essentially to the present day. As described to each of the court appointed experts and Dr Eagle, Mr Ibrahim's drug use began in about 1993 at the age of 18, commencing with marijuana and Rohypnol (a benzodiazepine), before moving to heroin, methamphetamine and prescription opioids (among other drugs). While Mr Ibrahim denied more recent use of drugs, the evidence before the Court suggests otherwise. For instance, in late November 2019, Mr Ibrahim recorded a positive urinalysis drug test and subsequently admitted to a parole officer that he had been "using Bupe [buprenorphine] daily, ice [methamphetamine] occasionally and sleepers [Alazapine]". Even more recently, on 21 October 2020, Mr Ibrahim told Justice Health clinicians that he had been smoking Suboxone (ie, buprenorphine), with the last usage "2 days ago". 3. Mr Ibrahim's use of drugs has persisted, even in supervised contexts, such as in custody or while in the community on parole. For instance, while in custody, Mr Ibrahim had committed 16 institutional offences related to drug use, including: 1. drugs in urine and fail prescribed drug test; 2. refuse/fail drug sample; and 3. possess drug or drug implements. Five of these institutional offences were committed in his most recent period of custody, with the last as recently as December 2019. In addition to those institutional offences, Mr Ibrahim had also engaged in drug-taking or seeking behaviour for which no disciplinary sanction was imposed: for example, in July 2018, he was placed in an observational cell after taking "another inmate's medication on top of his own medication to get high". Similarly, while in the community on parole, Mr Ibrahim had repeatedly failed drug tests and/or admitted to his parole officer that he had been using drugs. For instance, in his period in the community on parole immediately prior to the index offence, Mr Ibrahim failed drug tests in May 2015 (amphetamine-type substance) and September 2015 (amphetamines and methamphetamines). 1. Mr Ibrahim has never completed a residential drug rehabilitation program and his engagement with outpatient drug rehabilitation programs, whether delivered in custody or in the community, has been poor. 2. While Mr Ibrahim has sometimes been willing to disclose drug use to persons responsible for his supervision and/or treatment - as in January 2013, when he disclosed to his parole officer that he had been using methamphetamine for 2-3 weeks - there is reason to doubt that he has been honest with such persons in recent times or that he will be in the future. In this respect, it may be noted that Mr Ibrahim told Dr Klamer that he had not used "any substances since 2019" and Dr Eagle that he had not used "any illicit or unprescribed substances this year [2020]", notwithstanding that he had used drugs in at least November 2019 and October 2020. Mr Ibrahim's use of drugs in November 2019 is also notable as it occurred at or around the same time that Mr Ibrahim, during an assessment by Dr Elliott, "quickly and assertively denied any history of substance use over the last nine months".
The significance of these factors, when combined with the expert opinion before the Court, is that they represent the potential trigger of a relapse of Mr Ibrahim's mental condition and the associated risks relevant to the considerations under s 20(d). A similar conclusion may be reached with respect to the risk of relapse occasioned by non-compliance with medical treatment. Again, the State has pointed to a number of relevant factors in this respect which, in my view, permit a conclusion that Mr Ibrahim is at a high risk of non-compliance with medical treatment. There are three such factors.
First, Mr Ibrahim has a long history of non-compliance with medical treatment, including, in particular, use of oral anti-psychotic medication (as opposed to depot anti-psychotic medication). This history includes the following:

[57]

The period prior to the index offence: 1. In the year leading up to Mr Ibrahim's commission of the index offence (in which, as already noted, he robbed a jewellery store while purporting to have a gun and making threats of violence), he was admitted to Banks House after using methamphetamine and subsequently ceasing to take his prescribed anti-psychotic medication.

Secondly, Mr Ibrahim's attitude to receiving medical treatment for his mental health condition remains equivocal, especially insofar as his depot anti-psychotic medication is concerned. Whilst he has been receiving depot anti-psychotic medication since October 2019, there is evidence to suggest that his agreement to this treatment was strategic and that he would not continue to agree to the treatment in the absence of compulsion. In particular, I note the following examples supportive of that conclusion: 1. On 9 October 2020, Mr Ibrahim told Justice Health clinicians that he was not happy taking his depot anti-psychotic medication, stating "I never wanted it" and "I was taking the treatment for Parole but I didn't get it". 2. On 10 November 2020, Mr Ibrahim told Justice Health clinicians that he planned to "seek cessation of his depot [ie, depot anti-psychotic medication] post-release" because "I was going OK on the tablets and only agreed to the injection for Parole - but I didn't get it". 3. On 30 November 2020, Mr Ibrahim told Justice Health clinicians that, if he was moved to a different correctional facility to prepare for his release from custody, "I won't agree to treatment inside and outside gaol" and "if I go overseas they can't supervise me". 4. On 12 January 2021, Mr Ibrahim told Justice Health clinicians that he "doesn't like his medication" and "wants to change [it] but [is] aware he needs to wait until he is out of gaol". 5. On 3 February 2021, Mr Ibrahim told Justice Health clinicians that he was unhappy about the side effects of his depot anti-psychotic medication and "once he is released he will go to his local GP and discuss with them". 6. On 9 March 2021, during an appointment at Bankstown Mental Health Service with Dr Ahmad, his treating psychiatrist, Mr Ibrahim raised concerns about the medical side effects of his depot anti-psychotic medication, whereupon it was explained to him that depot medication was appropriate given his recent release from custody and high risk of relapse. 7. On 18 March 2021, Mr Ibrahim told Dr Klamer that "he would prefer to return to oral medication rather than the current injection". 8. On 19 March 2021, Mr Ibrahim told Dr Dayalan: 1. that his depot anti-psychotic medication was causing "sexual side effects and weight gain"; 2. that he "wanted to have the depot medication ceased"; 3. that "he had only agreed to take the depot medication as he had been informed that he would not get his parole unless he took [it]"; and 4. that he would not be willing to trial an alternative depot medication because "he had developed adverse effects to all depot medications" (although he would be willing to continue on oral medication).
I accept the State's submission that the frequency and repetition of Mr Ibrahim's attempts to have his depot antipsychotic medication reviewed is suggestive that Mr Ibrahim would not continue to accept depot antipsychotic medication without "external mandating".
Third, each of the court appointed experts and Dr Eagle had reported that Mr Ibrahim displays poor insight into the nature of his mental health condition and the need for it to be medically managed. This lack of insight has been evident in recent times. For instance, on 12 January 2021, during a review by a Justice Health clinician, Mr Ibrahim stated that "he thinks he gets drug induced psychotic symptoms only". This suggests that Mr Ibrahim has a poor understanding of the nature of his schizophrenia, particularly its chronicity and likely lifelong duration. In the context of a further review by a Justice Health clinician on 18 February 2021, the clinician observed that Mr Ibrahim's "insight is limited" and that he "accepts medication due to FCTO and Community Corrections insisting".

[66]

Compliance with Obligations whilst on Parole or Bail

Mr Ibrahim has committed a large number of his offences while on parole. Specifically, the following offences or groups of offences were committed while on parole and resulted in the revocation of his parole: 1. the 2002 armed robbery offences; 2. a group of offences in 2006 involving being carried in a conveyance without the consent of the owner and destroying or damaging property; 3. the 2008 and 2009 armed robbery and offensive weapon/assault offences; 4. the 2013 armed robbery offence; and 5. the index offence.
Mr Ibrahim has also committed a number of offences while on bail. Notably, in early 1995, he committed a series of separate offences while on successive grants of bail. The offences included stealing, assault occasioning actual bodily harm and break and enter with intent to steal. In dismissing an appeal against sentence, in respect of those offences, the Court of Criminal Appeal remarked that "this is not a case of what might be described as a single, one-off, out-of-character offence", but "a case that involves a studied succession of serious criminal offences committed successively while on successive grants of bail" and, further, that "[b]reach of bail is always regarded by the Courts as a serious matter because of the light it casts upon the reliability of the person who has been granted, and who has abused, the privilege of bail": R v Ibrahim (Court of Criminal Appeal (NSW), Sully J and Bell AJ, 4 September 1996, unrep).
This part of the consideration points to the need for a supervision management strategy that involves clear and immediate consequences for non-compliance and appropriate supports. As put by Dr Dayalan, "[u]nless there are immediate consequences to any non-compliance with treatment or substance misuse, there is a high likelihood of Mr Ibrahim not complying with the treatment conditions [namely, the conditions imposed under the ESO]". Similar observations were made by Dr Eagle, who noted that, in light of Mr Ibrahim's "insight, previous non-compliance and antisocial personality traits … it would appear unlikely that [he] would be able or willing to engage in many of the above strategies without a clear external mandate with consequences".
Overall, Mr Ibrahim has performed poorly as to compliance with his obligations on parole and when on conditional liberty.

[75]

Family Support

Mr Ibrahim relied upon this factor in conjunction with the existence of a CTO. I shall approach the issue raised by s 20(d) in that light, but I shall consider each factor in turn.
As to the relevance of Mr Ibrahim's family support, and in light of the material before the Court, the following submissions were advanced: 1. It was submitted that the risk assessments of Mr Ibrahim were to the effect that any risk is low whilst he remains well. He has a highly supportive family and there is evidence that he and his family have a history of alerting the health authorities and the police when he is unwell. Reliance was placed upon a schedule of evidence as to the role of the family in this respect (Annexure A to Mr Ibrahim's May Submissions). 2. Dr Eagle described Mr Ibrahim's family as having insight into his conduct (including mental health issues). She opined: Manal [sister] appears to have a lot of insight into her brother's behaviour, MH, drug use and past criminal history. She said she would not hesitate to contact his CCO and/or MH services if she felt he needed help. She would also call Police if she felt[s] her or her family were in danger. She does minimize his threats, stating the family are used to it, put it down to his MH and do not think he is serious. Manal also denies he is a terrorist and claim it was his MH. 1. It was submitted that, with the CTO, and with the support of his family, Mr Ibrahim's mental health can be adequately managed in the community. 2. Reliance was placed upon Dr Dayalan's opinion that there may be future problems with treatment response and supervision and that an ESO may cause stress and frustration for Mr Ibrahim. (That evidence, in particular, overlaps with contentions as to the Court's discretion). 3. It was also (correctly) contended the evidence in Annexure A to Mr Ibrahim's May Submissions reveals Mr Ibrahim has, on occasions, taken himself to hospital (a psychiatric inpatient unit) or has been taken there by his family.
Counsel for Mr Ibrahim contended that the preceding submissions, and the material referred to therein, support a finding that, in the event of deterioration of his mental health, Mr Ibrahim would obtain treatment in an inpatient unit as a voluntary patient, or as an involuntary patient if he becomes a risk to himself or others. Reliance, in that respect, was also placed on Annexure B to Mr Ibrahim's May Submissions, in order to contend that it is apparent that Mr Ibrahim is proactive about seeking inpatient treatment and/or connecting with the authorities (including the parole authorities) when he becomes mentally unwell. Thus, it was contended that the evidence before the Court supports a conclusion that, when the mental health of Mr Ibrahim deteriorated in the past, either he or his family have ensured that he is admitted to a psychiatric inpatient unit, or that he consults with his mental health worker.
Counsel for Mr Ibrahim also relied upon provisions of the Mental Health Act. It was submitted that if Mr Ibrahim does become sufficiently unwell to require inpatient treatment, the law requires that, if he is a risk to himself or others, then he must not be discharged from hospital, as set out in ss 34-49 of the Mental Health Act. This was acknowledged by Dr Dayalan in his evidence.
I accept that Dr Dayalan referred to the support received from Mr Ibrahim's family members, including assisting him in receiving treatment in an inpatient psychiatric facility in the context of acute relapse. Dr Dayalan referred to support from family as a protective risk mitigating factor. Further, the Eagle Report identified that the family is highly supportive and has insights into his mental condition. I also accept that the provisions of the Mental Health Act (namely, ss 34-49) may be engaged to prevent Mr Ibrahim's discharge if he is held to be a risk to himself or others.
However, the court appointed experts and Dr Eagle have each expressed the view that, in the context of a deterioration in Mr Ibrahim's mental health, his family members have the potential to be perceived as "persecutors" and so to become victims of violence, namely, violence that Mr Ibrahim perceived to be justified by extreme religious or ideological beliefs. There is evidence before the Court that Mr Ibrahim's family members have, in the past, been victims of his threatening conduct.
Thus, whilst it is clear that Mr Ibrahim's family are aware of his mental health issues and have been supportive of him, they have not, when he has been released into the community, been able to prevent him from engaging in drug use or discontinuing necessary medical treatment. Nor have they prevented him from committing further criminal offences, including violent offences.
That finding is by no means a criticism of Mr Ibrahim's family but rather a reflection of the mental health conditions afflicting Mr Ibrahim and the risk, in light of the evidence before the Court, that he poses to both the community and his family. My earlier conclusions regarding the lack of insight by Mr Ibrahim into his mental condition, his non-compliance with medical treatment, his failure to undertake treatment programs and his tendency to provide favourable responses to psychologists to a strategic end are also relevant in this context.
There is not, in my view, a proper basis on the evidence to conclude that, if an ESO were not to be made, Mr Ibrahim's family would be able to provide support of the kind necessary to materially reduce the risk of Mr Ibrahim engaging in conduct of the kind regulated by the THRO Act. This conclusion is not diminished by the existence of a CTO as I will discuss below.

[76]

Community Treatment Order

Mr Ibrahim relied upon the fact that he is subject to a CTO dated 10 March 2021, which brings with it considerable enforcement powers.
Putting aside momentarily the issue of enforcement powers under the CTO, Mr Ibrahim's submissions were as follows: 1. Dr Klamer agreed that a CTO was a "powerful tool used in the community… in the mental health sphere" and that the Community Mental Health Teams were well experienced to deal with people on CTO's who are non-compliant with medication. Further, he accepted that a history of noncompliance with medication is "essentially a precondition to being placed on a CTO". 2. As at the time of the application before the Court, Mr Ibrahim was being managed by an Assertive Outreach Team ("AOT"). An AOT is a specialist team which, it was submitted, provides more follow up and close monitoring than the Community Mental Health Team and very closely monitors the mental health service consumer on the CTO, including that they have daily meetings about the mental health service consumers within their programs. Mr Ibrahim was responding well to the AOT treatment plan and was otherwise engaging appropriately with his treating team, as set out in the Report of Mary-Eve Katter dated 4 May 2021. 3. Mr Ibrahim's current case worker sees him weekly, which is considerably more than the recommendation of Dr Dayalan. Mr Ibrahim was reported by his case worker as responding well. 4. The following aspects of Mr Ibrahim's current Treatment Plan was highlighted: 1. Mr Ibrahim is required to: 1. take all his prescribed medication; 2. meet with his psychiatric case manager or delegate at least weekly; 3. attend reviews every four weeks with Dr Ahmed, his treating psychiatrist, or delegate; and 4. attend appointments at the Bankstown Community Health Center or at his home if Mr Ibrahim consents. 1. Under the Treatment Plan the frequency of the meetings, referred to above, may be varied by the case manager and treating psychiatrist. 1. Dr Dayalan has reported that, in addition to depot medication, Mr Ibrahim had received treatment with opiate substitute treatment, Buividal, in injection form initially and then due to a resultant swelling of his ankles, the medication has since been changed to an oral form.
As to enforcement powers under the CTO, Mr Ibrahim highlighted s 53(3) and (5) of the Mental Health Act. Those provisions, relevantly, provide: 53 Determination of applications for community treatment orders (3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that - (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and (b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and (c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment. … (5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied - (a) the affected person has previously refused to accept appropriate treatment, (b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness, (c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission), (d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.
In light of the operation of s 53 of the Mental Health Act, Mr Ibrahim submitted: 106. Accordingly, a precondition to the making of a CTO is that the affected person has a previous history of refusing to accept appropriate treatment: at s 57(3)(c) [sic] Mental Health Act 2007. The key objective of a CTO is to ensure treatment compliance by those affected persons who might not otherwise comply with their medication. The refusal of medication by people suffering from mental illness is common for many reasons, including lack of insight, dislike of side effects and is a powerful enforcement tool used widely by Community Mental Health teams who are well experienced at dealing with this common situation.
Reliance was also placed upon the powers of the police under the Mental Health Act: ss 58 and 59. Those provisions, relevantly, provide: 58 Breach of community treatment order … (3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice) - (a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility, and (b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order. [Emphasis added.] … 59 Police assistance (1) A police officer to whose notice a breach order is brought must, if practicable - (a) apprehend and take or assist in taking the person the subject of the order to the mental health facility, or (b) cause or make arrangements for some other police officer to do so. (2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility. Note - Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.
As to the relevance of those provisions, Mr Ibrahim advanced the following submissions: 107. If a person breaches a CTO by not complying with the conditions of the Treatment Plan, they can be breached pursuant to S 58 of the Mental Health Act 2007 and taken to mental health facility and given appropriate treatment, including medication. Sections 57 and 58 provide for the police to be involved in the process of taking the person in breach to a mental health facility. Section 59 empowers to police to assist in taking the subject person to a mental health facility, including empowering the police to enter premises or apprehend a person without a warrant: [Extract of s 59 of the Mental Health Act omitted.] 108. Section 81 of the Mental Health Act 2007 provides that police, members of a health facility, ambulance officers and other person prescribed by the regulations can use reasonable force in transporting the person to a mental health facility and may restrain the person as reasonably necessary. Furthermore, s 81 provides that such a person may be sedated for such purpose. The section also empowers authorized persons with 'frisk' and 'ordinary' search power, and power to seize items which may cause danger to the person or others, or which items would assist them in escaping.
Counsel for Mr Ibrahim contended that any risk (and noting that none was conceded) can be managed sufficiently in the community under a CTO which is a powerful tool to ensure Mr Ibrahim complies with his medication and treatment regime.
In my view, the evidence in these proceedings amply demonstrates why the risks posed by Mr Ibrahim would be better managed by an ESO rather than relying on an existing CTO regime. Further, and more directly relevant to s 20(d), the existence of the CTO does not, whether taken singularly or in combination with other factors relied upon by Mr Ibrahim, constitute a proper basis for concluding that, to the requisite standard, Mr Ibrahim does not pose an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.
The gulf between an ESO and the matters which may be addressed in a CTO have been discussed in many authorities of this Court dealing with the CHRO Act and the THRO Act: see State of New South Wales v Davis (Preliminary) [2020] NSWSC 754 ("Davies") (per Hoeben CJ at CL); State of New South Wales v Dunn [2019] NSWSC 426 (per Wilson J); State of New South Wales v BP (No 2) [2019] NSWSC 806 ("BP No 2") (per Wright J); see also Attorney-General for New South Wales v Riley (Final) [2019] NSWSC 1782 ("Riley").
In Davis at [83(2)], Hoeben CJ at CL stated "an ESO is capable of regulating the defendant's conduct in ways that a CTO is not (for example, by prohibiting the use of substances)" (that involved an application under the CHRO Act).
Similar remarks have also been made in the context of cases arising under the THRO Act. For instance, in State of New South Wales v Dunn, a case involving an offender with significant mental health issues, Wilson J observed as follows (at [209]): [209] … An ESO, unlike a CTO, will be directed to more than simply assisting the defendant with medical treatment. It will give those supervising the defendant, and actively managing the risk he constitutes, the power to require him to participate in drug rehabilitation, engage with psychologists, undertake urinalysis, and the like, as well as the capacity to resort to the criminal law if the defendant does not comply with the conditions the order imposes upon him.
Likewise, in BP (No 2) at [41], Wright J observed: [41] The enforcement mechanisms available if a person fails to comply with a CTO under the Mental Health Act are not entirely straightforward or immediate and may depend on the level of funding available for mental health facilities and teams. Furthermore, the Mental Health Act enforcement mechanisms are also focused upon the welfare of the person with the mental illness and not the protection of the community. …
Thus, whilst those "enforcement mechanisms" may have the potential to be coercive, they can in no sense be considered equivalent to those that exist under an ESO (an order which, ultimately, has the backing of the criminal law: see s 30 of the THRO Act).
Given later discussion of Mr Ibrahim's response to both CTOs and FCTOs, it is appropriate to mention the judgment in Riley, a matter involving the supervision of an offender with mental health issues. In that matter, the Court considered expert opinion regarding the appropriateness of a stringent FCTO that would provide "comprehensive care" as opposed to the offender's management under a "less restrictive" CTO. An extract of Riley at [204]-[204] follows: [204] The experts (as well as Dr Ma and Dr Hearps) have all stated that for the defendant's risk to be adequately managed he required more than medication management: the defendant requires "comprehensive care" (Associate Professor Basson), "treatment and rehabilitation" (Ms Howell) and "to be tested for safety before release and in a system that is able to gradually transition the defendant to the community" (Dr Giuffrida stated this is only available if the defendant was a forensic patient under an extension order). [205] Associate Professor Basson gave evidence that an FCTO applied while the defendant was a prisoner and that it became a CTO when he moved to the community. He described the way that worked from a practical perspective, The Prison Psychiatric Service (the psychiatrists looking after the defendant in prison) would liaise with the local mental health teams in the area where he is going to live and establish an agreement that the health teams would be willing to take over, take him on a CTO in the community and they would agree to the conditions which are laid out in that record and that there are various rules around how the Tribunal got involved in that process. [206] Dr Giuffrida's evidence was consistent with Associate Professor Basson as to that process and he further described that the conditions applicable to each an FCTO and a CTO are entirely different. In terms of the conditions that would apply in the community on a CTO, he said that they could be much broader and go to a whole range of issues including accommodation, even down to the precise address where they were going to live, the community mental health team to whom they had been placed, who was going to treat and supervise a person released, the treating psychiatrist who was going to see them or his or her delegate, the case manager in the community, the precise medication that was to be given (and in what form and at what frequency) and whether the person required urine drug screening or other screening for illicit substances. He described broad range of things that go beyond the FCTO. [207] The difficulty with these scenarios, which were relied upon by the defendant, as constituting a basis for defeating the plaintiff's case that the risk cannot be managed by less restrictive means for the purposes of cl 2(1)(b), such as a CTO, is that the only evidence before the Court is that there is the possibility of a CTO and as the plaintiff submitted "the case plan for that is not identified beyond that which was in the plan under the forensic CTO". … [Emphasis added.]
None of the experts who provided reports to the Court endorsed the suggestion that an ESO should not be ordered because (or notwithstanding that) Mr Ibrahim was subject to a CTO. To the contrary, Dr Eagle opined that Mr Ibrahim should be subject to a CTO as an additional risk management intervention. Dr Dayalan suggested that, if an ESO were made, compliance with depot antipsychotic medication should be included as a condition of the ESO.
Mr Ibrahim has been subject to a CTO (or a FCTO) on at least 6 occasions prior to the present occasion. The evidence establishes that these CTOs or FCTOs have proven ineffective in: 1. ensuring that Mr Ibrahim continued to participate in his mental health treatment, including by avoiding drug use and taking anti-psychotic medication; and 2. preventing violent and other offending. As Dr Eagle put it in her report, "Mr Ibrahim has a history of repeated non-compliance with prescribed treatment and medication, despite Community Treatment Orders and supervision orders".
In the Dayalan Report, Dr Dayalan opined: 194. Mr Ibrahim poses a high risk of non-compliance with treatment especially his depot medication unless there are adequate external measures to ensure compliance. It is noted that community treatment orders and parole orders have not been effective in ensuring compliance in the community. …
In his evidence-in-chief, Dr Dayalan opined that a CTO may be insufficient, in the case of Mr Ibrahim, to monitor and manage his risk. Further, difficulties may arise with respect to ensuring Mr Ibrahim's compliance, particularly in the community, with mental health treatment and prevent a relapse of substance abuse. That evidence, in context, is extracted below: Q. The final reference that I wanted to draw your attention to is at page 44 of your report, where you identify Mr Ibrahim's high risk of non-compliance with treatment, especially his depot medication, unless there are adequate external measures to ensure compliance. And, Dr Dayalan, I've drawn your attention to those passages, because they are some of the passages in your report where you identify, in particular, the importance of supervision and external measures to mandate compliance. Having regard to that, are you of the view that the risks that you've identified as being posed by Mr Ibrahim, namely, the risk of engaging in violent extremism in the context of him being unwell and inadequately supervised, would be adequately managed in the community with a community treatment order, but without an extended supervision order? So, the question really is, do you think a community treatment order would be sufficient to manage the risks that you've identified? A. Not at this current stage. I believe that he's been noncompliant with community treatment orders in the past and he's relapsed into substance use whilst being on CTO and being non-compliant with treatment. During my assessment, it didn't appear that he had a significantly improved insight in his mental health condition. There were ongoing request to reduce his dose of depot medication. So, I do believe that CTO conditions may not be sufficient to manage his risk of noncompliance and substance use, both of which are linked to his risk of engaging in violent extremism. Q. What is it in particular about the extended supervision order that wouldn't be available with a community treatment order that you would regard as important in that context? A. Just allows for extra level of monitoring. In the past, he's indicated that he would - I think at one stage I remember him making a threat that he would leave the country because he didn't want to be on treatment anymore. And there is instances where he's moved out of the family home because he was frustrated with the treatment. So there's a risk that he - and this often is encountered for management of patients on CTO, where if they're not accessible to the treating team, they're often allowed to lapse. And so, it gets quite harder to manage them in the community, especially if they're making an active effort to evade treatment.
Dr Dayalan also gave evidence that, although there were ways to enforce a CTO where the patient was not complying with its terms, "in essence, it doesn't always happen where, you know, patients become non-compliant with treatment … The CTO allows for the treating clinician to agree for the person to just take oral medication rather than the depot medication. And those instances, there's a high likelihood of non-compliance, because it can't be ensured".
In cross-examination, Dr Dayalan rejected the contention that the involvement of the AOT would mitigate the risk of Mr Ibrahim not complying with a CTO. During cross-examination, counsel for Mr Ibrahim also put to Dr Dayalan that should Mr Ibrahim's mental health deteriorate, that deterioration would be identified by treating professionals and the AOT and the involuntary admission process under the CTO could be set in place. Whilst Dr Dayalan acknowledged the scenario put to him as a possibility, particularly in instances of "gross deterioration", "If they're able to identify it", the expert's answer was accompanied by the following qualifier: "But quite often, sometimes it's not that easy to pick it up in an outpatient clinic". His evidence was to the effect that in the community, the symptoms of the deterioration of a "mental health consumer's" condition would not necessarily be easily identified.
Dr Dayalan opined that a caseworker or psychiatrist treating Mr Ibrahim under a CTO, whom may identify deterioration in Mr Ibrahim's mental health, would not significantly mitigate the risk that Mr Ibrahim may pose to himself and others in a deteriorated mental state. Dr Dayalan opined, in that respect, that deterioration in Mr Ibrahim's mental health as an outpatient has not always been identified and referred to instances whilst Mr Ibrahim was in gaol where his mental health deteriorated and he was experiencing symptoms of psychosis but such symptoms were not readily apparent to his treating psychiatrist. An extract of that evidence appears below: Q. If the caseworker or the psychiatrist who was attending on Mr Ibrahim, do you agree that if they observed that his health was deteriorating, that they could then take - If they observed that his health was deteriorating to the point where he was a risk to himself or others, that they would set in place an involuntary admission process? A. If they're able to identify it, yes. They can. But quite often, sometimes it's not that easy to pick it up in an outpatient clinic. Q. But again, the closer the involvement of the mental health consumer with the community treatment team, and in this case the assertive outreach team, do you agree that in those circumstances that there is a high likelihood that a deterioration would be identified reasonably quickly? A. I think it comes down to the patient, to a lot of times, because patients who have been involved in the service a long time are able to present as well even when they have symptoms. And certainly, in the case of Mr Ibrahim, I think there was a period whilst he was in gaol, in the appointment of the psychiatrist, it was noted there was no evidence of psychosis. But in consultation with a psychologist, he disclosed a number of persecutory beliefs. So I do believe that it can vary depending on the patient, but certainly it does assist to have regular assessments. And if there's any gross deterioration of the mental state, they might pick it up.
The viability of an enforceable CTO is affected by the accessibility of the patient, which is more difficult in the case of a person suffering schizophrenia. The assistance of family only negates the risk to a limited extent. Dr Dayalan, relevantly, opined in the following answers: Q. Do you agree that part of that outreach service is the identification of community resources available to support the particular mental health service consumer? A. It would involve that. Q. That's part of the objective, isn't it, of the assertive outreach program? A. Yes. It just tries to identify all the available resources that can be used to manage this potentially difficult patient in the community.. Q. You said just a little bit earlier when asked some questions by learned senior counsel, you said that "If a person is accessible, then it's more likely that action can be taken on a community treatment order." Is that correct? A. That's correct. Q. When you say "accessible", do you mean accessible because you can contact them more easily, just simply? A. So what I've found in my experience is quite often patients with schizophrenia and - may not continue to live at the accommodation that was identified, and quite lost to follow..(not transcribable)..because they've become itinerant. And the community mental health team usually struggles to follow the individuals. Q. But if a person - if you knew where they lived and they had family who were supportive and assisted to address any mental health issues, do you agree, that that would support any enforcement under the community treatment order? A. I don't think it completely negates the risk because quite often the patient just can go and not return home. And I think certainly, in the case of Mr Ibrahim, it's happened in the past where he has left the family home on a few occasions whilst in the community. But I certainly agree that it's probably - offers a little bit more safety and guard as opposed to an individual living on his own.
Further, Mr Ibrahim's CTO is due to expire no later than 22 October 2021. There is no guarantee that Mr Ibrahim will be subject to a CTO for a period any longer than 6 months from the date of the final hearing of the State's application for an ESO. The preconditions for the making of such an order under the Mental Health Act are stringent (see ss 53(3) and (3A)); are wholly focused on the health of the affected person (consistently with the objects in s 3 of that Act); and do not require the Mental Health Review Tribunal to consider the risk that the affected person poses to the community or any risk of offending. Further, the Mental Health Act makes no express provision for the Attorney General, as the Minister administering the THRO Act, to make submissions.

[77]

The decision of the New South Wales Court of Appeal in Naaman No 2

Mr Ibrahim made a particular submissions as to why the judgment of the Court of Appeal in Naaman No 2 illustrates why the State has failed to establish that Mr Ibrahim posed an unacceptable risk of committing a serious terrorist offence if not kept under supervision under an ESO.
Mr Ibrahim's submission, in that respect, was as follows: 112. In Naaman (No 2) the Court observed that whilst the respondent's history of violence had been reactionary and unpremeditated, he had not engaged in violence with the intention of advancing a political, religious or ideological cause: at [69]. The court further considered that although there was overwhelming evidence that the respondent, who was mentally ill and had a history of not taking medication, had on occasion reacted violently and spontaneously, that fell well short of being an unacceptable risk which is a precondition for orders under the Act: at [66]. The court held in Naaman (No 2), a case bearing similarities to this case: [see at [3]-[4]; [97]-[98].]
The relevant passages of Naaman No 2, referred to in preceding submission, are extracted below (at [3]-[4], [69] and [97]-[98]): [3] By way of overview, the respondent has committed a long list of offences, including offences involving violence. He has spent most of his adult life in prison. The most serious instances of violence have been directed to police officers and corrective service officers acting in the course of their duty. He has also made threats of violence, including of bombing a correctional centre. He has expressed views supportive of the Sunni Islamic cause, and indeed, in breach of his parole, travelled to the Middle East (although the primary judge noted at [73] that there was no evidence that he proceeded to fight in Syria or attempted to do so). However, he is also a person who is cognitively impaired, who has been diagnosed as a likely schizophrenic, and who suffers from an anti-social personality disorder and a substance use disorder, the consequence of many years of use of illegal drugs. We share the view expressed by the primary judge that, regrettably, it is likely that the respondent will offend again, and that when apprehended, he may resist arrest, including violently. [4] However, we also share the view reached by the primary judge that the State has not shown that there is an unacceptable risk of the respondent committing a serious terrorism offence if no supervision order is made. A person only commits a serious terrorism offence if he or she (a) acts or threatens to act in a way which causes serious harm or damage, (b) with the intention of advancing a political, religious or ideological cause, and (c) with the intention of coercing or influencing by intimidation a local or foreign government or intimidating the public or a section of the public. Although the first condition is satisfied, it has not been shown that there is any real risk of the respondent acting or threatening to act with either requisite intention, let alone both. His history of violence to date, so far as the evidence discloses, has been reactionary and unpremeditated, and not, so far as the evidence indicates, engaged in with the intention of advancing a political, religious or ideological cause. … [69] Although a literal reading of his Honour's judgment may support the conclusion for which the State contends, we do not consider that his Honour fell into that error. Although his Honour squarely confronted the fact that the probability of future criminal conduct, accompanied by violence, was high, that is far from sufficient to satisfy s 20(d). The primary judge was plainly conscious of the absence of meaningful evidence as to the requisite purposes, given that the respondent's history was characterised by unpremeditated acts of violence. The primary judge also invoked the same lack of premeditation against a finding of likely serious harm. … [97] For those reasons, it will be seen that the State has failed to establish an unacceptable risk of actions or threats of action accompanied by an intention required by pars (b) and (c) of the definition of terrorist act. [98] We are conscious of the risk of a person who is mentally unwell committing a spontaneous act of serious violence. Some of the acts of terrorism committed in Australia have been committed by people who are mentally ill. However, even if there were evidence to suggest that the respondent might engage in the conduct mentioned in the State's submission, there is nothing to suggest that the conditions imposed by an extended supervision order would reduce that risk from manifesting. It is to be borne in mind that the State accepts that the respondent, who has served the entirety of all periods of imprisonment for offences committed by him, is to be released; the only question arising on this appeal is whether he should for the next 3 years be subject to the conditions on his liberty contained in an extended supervision order.
I accept the submission of the State that care needs to be taken in drawing comparisons between different cases arising under the THRO Act or for that matter the CHRO Act. Certainly, it is necessary to delve deeper than what appeared to be bare similarities. As Basten JA observed in Lynn at [116], the making of an ESO "self-evidently involves an evaluative assessment of the offender and the risk posed to the community".
As the State submitted, to the extent that Mr Ibrahim puts in issue his capacity to form intentions required for the offence of engaging in a terrorist act contrary to s 101.1 of the Criminal Code, there is no evidence before the Court that Mr Ibrahim has ever been considered as being incapable of forming the requisite intention for the past offending referred to earlier in this judgment. Nor has he been found unfit to be tried.
The State pointed to the Psychiatric Report of Dr Strum, forensic psychiatrist, dated 22 September 1999. In that report, Dr Strum considered Mr Ibrahim as fit as to be tried for particular offences.
I will deal more broadly with the concept of a "terrorist act" and a "serious terrorism offence" in my conclusions below. It is sufficient to note, at this juncture, that, for the purposes of this contention advanced by Mr Ibrahim, a terrorism offence goes well beyond the offence of engaging in a terrorist act (see Naaman No 2 at [37]) and would include preparation and planning.
That returns attention to the decision in Naaman No 2 and the distinguishing features between that matter and the present matter.
In Naaman No 2, the offender at issue had a history of engaging in acts of violence that the Court of Appeal described as "reactionary and unpremeditated" or "spontaneous": see Naaman No 2 at [4] and [66]. Indeed, as Fagan J stated it at first instance, "the defendant's past violence has not been of a high level and has not been premeditated. He has not used violence in furtherance of other crimes but, for the most part, only in reaction to being caught": see State of New South Wales v Naaman (Final) [2018] NSWSC 1635 at [82]. Mr Ibrahim, by contrast, has had a long history of engaging in acts of violence that are instrumental, rather than reactive; that is, in acts of violence that are essentially goal-oriented or intended to achieve particular results. Mr Ibrahim also has a long history of using weapons, including firearms.

[78]

Conclusion: Unacceptable Risk

Mr Ibrahim contended that the risk posed by him was remote. He submitted there was both a low risk of "something" occurring and there was an absence of evidence that any risk could be significant. The following factors were relied upon to demonstrate those propositions: 1. Mr Ibrahim's age and level of maturity; 2. Mr Ibrahim's close family support who have in the past contacted mental health workers and the police when he has become unwell; 3. Mr Ibrahim has voluntarily admitted himself into a mental health inpatient facilities and otherwise sought assistance when his mental health has deteriorated; 4. Mr Ibrahim is currently on a CTO; 5. Mr Ibrahim is managed by an AOT; 6. Mr Ibrahim is currently subject of a Firearms Prohibition Order ("FPO"). This is significant, it was submitted, as it allows the police wide powers to stop and search Mr Ibrahim at any time, to execute search warrants at his place of residence at any time; 7. Mr Ibrahim has never accessed any material online or otherwise that supports extremist ideology; 8. Mr Ibrahim does not associate with any group/club or mosque that is of concern; 9. Mr Ibrahim is not a strictly practising Muslim; 10. Mr Ibrahim's criminal antecedent does not reflect any conduct against the NSW Police or government agencies; 11. Mr Ibrahim has never made any pledge of loyalty to any terrorist organisation; and 12. Mr Ibrahim has never used any image or symbol which supports or advocated for a terrorist organisation.
It was contended that, accordingly, an evaluation of the manifestation of the risk and the seriousness of the outcome of the risk in this case must be that it is insufficient to constitute an unacceptable risk.
Many of the premises upon which the contentions are based have been earlier discussed in this judgment and resolved adversely to Mr Ibrahim with respect to the ultimate submission he makes as to the fifth precondition under s 20(d) of the THRO Act. More significantly, these contentions need to be considered in the light of the entirety of the evidence bearing upon the consideration as to whether the precondition has been met. Those considerations are encapsulated below, without unnecessarily repeating that which appears earlier in this section of my judgment.
Overall, the Court is satisfied to a high degree of probability that Mr Ibrahim poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.
The evidence demonstrates that there is a real risk of Mr Ibrahim engaging in an act of violence that is justified by extreme religious or ideological beliefs, most likely motivated by a sense of grievance and directed against "perceived persecutors" and other persons considered to warrant retribution for past wrongs including government officials, clinicians, members of the public identified as "hypocrites" or non-believers and his family if Mr Ibrahim was not supervised under an ESO. The acts of violence may include the use of firearms or other weapons.
As mentioned, I do not repeat the evidentiary basis for that conclusion, which is set out at length earlier under this heading of the judgment, but by way of summary (and with some elaboration), point to the factors below. In doing so, I am mindful of the fact that Mr Ibrahim has neither made a pledge of loyalty to any terrorist organisation nor used any image or symbol which supports or advocates for a terrorist organisation. The factors are as follows: 1. On the evidence of the court appointed experts and Dr Eagle, Mr Ibrahim presents an elevated risk of engaging in an act of violent extremism including conduct that may constitute a serious terrorist offence if he experiences a relapse of his mental condition. 2. The risk of Mr Ibrahim engaging in violence motivated by religious or ideological causes was variously described as "significant", in the context of a relapse of his mental illness in the community whilst receiving minimal supervision and support, using illicit drugs or having access to weapons (by Dr Dayalan) and "moderate" in the case of Drs Klamer and Eagle (in the context of poor mental health). 3. As already observed in the discussion of relevant principles, a significant or moderate risk of an act of violence may be properly described as unacceptable. Even a "slim probability" of an offender committing an act of violence with serious consequences for other persons in the community may be unacceptable: Naaman No 2 at [29(5)]. The court appointed experts and Dr Eagle each opined that Mr Ibrahim represents an elevated risk of committing an act falling within the meaning of a terrorist act or a serious terrorism offence, if mentally unwell. 4. Mr Ibrahim has a serious mental health condition, namely, schizophrenia, which is characterised by relapses of acute psychosis in the context of substance use and non-compliance with mental health treatment. At the centre of his mental health condition is a persecutory belief system involving a conspiracy by the Australian Government to harm him. This is persistent even during periods of stability in his mental health. Mr Ibrahim also has a substance use disorder and a question remains as to whether he has an antisocial personality disorder. 5. The same experts opined that Mr Ibrahim represents a high risk of experiencing a relapse in his mental health condition in the absence of supervision. Factors relevant to that opinion include relapse due to his substance use disorder or drug use generally, his non-compliance with medication, his lack of insight into his mental illness and his resistance to take depot antipsychotic medication. 6. It would appear that Mr Ibrahim may have consciously sought to provide favourable answers in psychological and psychiatric assessments having regard to his awareness of the use that may be made of those assessments. 7. Mr Ibrahim has a long history which demonstrates a clear pattern of offending behaviour when suffering from a relapse in his mental health condition. It involves the use of a firearm or other weapon, which is generally instrumental in nature. The absence of criminal antecedents against NSW police or government agencies is a relevant consideration but does not significantly diminish the weight of this factor given the nature of the offending. 8. Mr Ibrahim has a poor record of compliance with his obligations on parole or whilst otherwise on conditional liberty. 9. Mr Ibrahim has a poor history of engagement with treatment and rehabilitation programs. I agree with the State that there is evidence to suggest that some of his recent engagement is strategic. 10. I do not consider that the existence of an FPO has or would significantly address the risk. The additional powers of police under an FPO would usually be directed to known or anticipated events. Here, the evidence reveals that Mr Ibrahim may significantly shift his mental state without even detection by practitioners in outpatient facilities or in gaol. In any event, there is a paucity of evidence to suggest that the FPO would significantly contain or mitigate that risk.
It has earlier been discussed in this judgment the term "terrorist act" as used in s 10(1)(c) of the THRO Act and the relationship of that concept with Pt 5.3 of the Criminal Code. I have also discussed authority as to the definition of a "terrorist act" in the Criminal Code.
Acts of violence of the kind I have described above, if committed, would be capable of constituting a "serious terrorism offence" within the meaning of the THRO Act and, in particular, the offence of engaging in a terrorist act contrary to s 101.1 of the Criminal Code. In that respect the following factors may be noted: 1. As to para (a) of the definition of "terrorist act", when read with s 101.1(2) of the Criminal Code: the act of violence, being a physical act that would be directed against a particular person or persons, and an act potentially involving a firearm or other weapon, would be capable of causing serious physical harm, death, endangerment of life, etc. 2. As to para (a) of the definition of "terrorist act", when read with s 101.1(3) of the Criminal Code: the act of violence, being justified by extreme religious or ideological beliefs, and motivated by a sense of grievance at perceived persecutors, and directed against them, would not be capable of being advocacy, protest or other protected action. 3. As to para (b) of the definition of "terrorist act": the act of violence, being justified by extreme religious or ideological beliefs, would be capable of being an act done with the intention of advancing a religious or ideological cause. 4. As to para (c) of the definition of "terrorist act": the act of violence, being motivated by a sense of grievance at perceived persecutors, including a range of government officials and other hypocrites or non-believers, and directed against them, would be capable of being an act done with the intention of coercing or influencing the government of the Commonwealth or a State, or intimidating the public or a section if it. 5. As to the forming of requisite intentions more generally: Mr Ibrahim's past history of violent offending is characterised by a pattern of instrumental violence, being violence that is essentially goal-oriented or intended to achieve particular results.
In any event, the concept of a serious terrorism offence goes beyond the offence of engaging in a terrorist act: Naaman No 2 at [37], and includes any preparatory or planning act.
The term "serious terrorism offence" is defined in s 4(1) of the THRO Act as an offence against Pt 5.3 of the Criminal Code for which the maximum penalty is 7 or more years of imprisonment. A number of number of offences meet this description, including engaging in a terrorist act, which includes both an action and the "threat of action" (s 101.1), possessing things connected with terrorist acts (s 101.4), collecting or making documents connected with a terrorist act (s 101.5) and planning or doing any act in preparation for a terrorist act (s 101.6).
In the Klamer Report, Dr Klamer specifically drew attention to the risk of Mr Ibrahim committing a "serious terrorism offence" other than engaging in a "terrorist act" per se.
It is also useful to note the following principles, albeit with some repetition. In Naaman No 2, the Court of Appeal referred to the fact that the State had not particularised the serious terrorism offence upon which it relied, but did not suggest that there was any requirement of particularisation: Naaman No 2 at [39]. In Alam at [129], Wilson J held that it is not necessary for the Court to specify the serious terrorism offence as part of the Court's risk assessment function under the THRO Act. In Cheema No 1 at [189], Johnson J agreed with this statement and observed further that "It is sufficient if the Court is satisfied that the Defendant poses an unacceptable risk of committing 'a serious terrorism offence'. This extends far beyond the need for there to be a risk that the Defendant will himself commit a violent act or acts which fall within the definition of 'terrorist act'".

[79]

Should an ESO be made?

Counsel for Mr Ibrahim correctly submitted that where the Court is satisfied as to the preconditions set out in s 20 of the THRO Act, there exists a discretion as to whether to make an ESO: Naaman No 2 at [29(6)]; Lynn at [47]-[48], [64], [82] and [149]; Kamm at [61], [168], [170]-[177].
Mr Ibrahim advanced submissions to support a contention that the Court should not exercise its discretion to make an ESO. The factors relied upon by Mr Ibrahim as supporting the exercise of a discretion in favour of Mr Ibrahim were as follows: 1. Given that Mr Ibrahim is only "a risk of committing a serious terrorism offence (but not even a high risk)" when he is mentally unwell, the appropriate means by which to manage him is through psychiatric treatment and mental health intervention through his Community Mental Health Treatment team. As Dr Dayalan testified, the only way to treat a delusion is through psychological and psychiatric treatment. 2. An ESO is an inappropriate means of managing a delusion which only arises in circumstances of deteriorating mental health. An ESO is an inappropriately draconian and inhumane response to a deluded state of mind. 3. An ESO would not be therapeutic and would not be a measure which would stabilise Mr Ibrahim's mental health or facilitate his psychosocial rehabilitation. It would not allow Mr Ibrahim the appropriate and important "degree of autonomy" and may decrease his motivation and create obstacles which may limit his involvement in leisure, social and vocational activities, which are important for his long-term rehabilitation. 4. An ESO would further burden a man with long standing mental illness who is already burdened on a daily basis with meeting the challenges of living with the very serious symptoms of his mental illness and the associated distress and dysfunction which follows when he deteriorates into delusion. Mr Ibrahim already faces a life-long struggle with diminished psychosocial functioning, medication side effects and other distress associated with his mental illness which impacts upon his quality of life. 5. An ESO would be a significant imposition upon Mr Ibrahim's liberty and unjustifiably onerous and intrusive. In circumstances of this matter, namely, mental illness, an ESO would impact Mr Ibrahim's psychosocial functioning and potentially will worsen his mental health.
As is evident from the permissive terms of ss 20 and 25(1) of the THRO Act, even where the Court is satisfied as to the five preconditions set out in s 20, it nevertheless retains a discretion whether or not to make an ESO: see Naaman No 2 at [29(6)]; Lynn at [47]-[48], [64], [82], [149]; Kamm at [61], [168], [170]-[177]. However, in the context of the CHRO Act, where the preconditions for the making an ESO are met, "it would be an unusual case before the [C]ourt would decide in its discretion not to make an ESO": Kamm (Final) at [46].
In determining whether or not to make an ESO, "the safety of the community must be the paramount consideration": s 25(2) of the THRO Act.
In addition, the Court is required to take into account the matters set out in s 25(3). A number of these matters overlap with those set out in s 11 of the THRO Act.
Counsel for Mr Ibrahim was correct to submit that in determining whether or not to make an ESO, and in deciding the conditions for an ESO, the Court may take into account matters such as the impact of the ESO on the offender's liberty and privacy (matters which are not to be taken into account in determining whether the offender poses an unacceptable risk): see, for example, Lynn at [129]-[131], [148]-[149].
Bearing in mind those principles and the contentions advanced by Mr Ibrahim, the Court was nonetheless of the view that it was appropriate, in the exercise of its discretion, to make an ESO in this case subject to certain conditions and for a particular duration to which I will return below.
That assessment is conditioned by the factors to which the Court gave consideration to in reaching a conclusion as to the question of unacceptable risk. The Court has also had regard to the earlier discussion as to the significance of the CTO operating with respect to Mr Ibrahim under the management of an AOT. The earlier consideration of that question with respect to unacceptable risk also applies with respect to the exercise of the Court's discretion. It follows that I do not consider the existence of a CTO (or the work of an AOT) when considered singularly or in combination with other factors warrant the exercise of a discretion not to make an ESO in this case.
I now return to the question of Mr Ibrahim's mental health in that respect and, in light of the introduction given under the previous heading, without revisiting the earlier conclusions reached in this judgment. It is sufficient to note that the court appointed experts and Dr Eagle each opined that the risk of Mr Ibrahim engaging in conduct capable of constituting a serious terrorism offence was intimately connected to a deterioration in his mental health condition.
In submissions made on behalf of Mr Ibrahim as to the exercise of the Court's discretion, counsel for Mr Ibrahim relied upon his long standing mental illness and the consequential burdens faced by him on a daily basis in meeting the challenges of living with various serious symptoms of the same as well as the associated distress and dysfunction which follows when Mr Ibrahim deteriorates into delusion. Counsel for Mr Ibrahim went so far as to suggest that the further deprivation to his liberty or privacy under an ESO might worsen his mental health condition.
The contention that Mr Ibrahim's mental health condition may bring with it many burdens or difficulties may readily be accepted. However, so too may the State's submission, which correlates to the objects of the THRO Act, that Mr Ibrahim's mental illness is a reason that militates in favour of making an ESO not against it. Ultimately, in my view, the correct balancing of discretionary considerations, in that respect, favours the making of an ESO, particularly having regard to the safety of the community and its protection.
In the circumstances, it is appropriate, in my view, to make an ESO for a duration and under conditions discussed below.

[80]

Expert Evidence

The court appointed experts were not in agreement as to the appropriate term of any ESO imposed by the Court. I now turn to a summary of the evidence of the court appointed experts with respect to duration.
As to the "clinical appropriateness of the proposed duration" of 3 years sought by the State, in the Dayalan Report, Dr Dayalan opined: 211. Mr Ibrahim's risk of engaging in violent extremism appears to be mostly relevant to periods of him being acutely unwell. Adequate management of his mental illness and facilitating psychosocial rehabilitation would assist in allaying concerns about his risk of engaging in behaviour that would constitute a serious terrorist offence. 212. I note the conditions included in the order sought are quite restrictive and if enforced for protracted periods of time may actually impede his psychosocial rehabilitation. Individuals with schizophrenia often have negative symptoms that impacts on their motivation to engage in social and occupational functioning. Any additional barriers to his engagement in activities to enhance his social and vocational skills will impact on his prospects of psychosocial rehabilitation. 213. It is not possible to guarantee that Mr Ibrahim will remain compliant with treatment and abstain from use of illicit drugs after any period of enforced treatment and participation in drug rehabilitation. In my opinion, a period of one year would allow for balancing between the need to stabilise his mental health and the need to facilitate psychosocial rehabilitation to minimise risk of relapse in the future. [Emphasis added.]
During cross-examination, Dr Dayalan suggested that an ESO would "cause distress". The follow passage of transcript was relied upon by Mr Ibrahim: Q. Given that Mr Ibrahim suffers from persecutory delusions, would it not exacerbate those delusions if he has the further considerable restrictions under an ESO? A. So, delusional beliefs are a direct result of a psychotic illness and they may or may not necessarily be triggered by the circumstances, and I would say it would increase his distress associated with it, but I may not necessarily say it would result in increases in his delusional beliefs. He has been in and out of custody for a long time and he has been on CTOs and parole orders, so he's had some level of supervision, and they haven't always resulted in exacerbation of his psychosis, but they do cause distress. [Emphasis added.]
During re-examination, Dr Dayalan, relevantly, opined: Q. At the bottom of page 48. Do you agree that the concerns that you have expressed there - namely, "potentially adverse impacts on psycho social rehabilitation over time could equally be addressed by amelioration or modifying the conditions to which extended supervision order was subject"? A. They could be, depending on - yeah - how restrictive the conditions are. Q. And if as part of the administration of that order, those responsible for its administration were alive to the risk that you've identified and modified the conditions, if appropriate - that would satisfy the concerns that you've expressed, as to an order continuing beyond one year? A. I would recommend that they do the variation in consultation with their mental-health professional, psychiatrist looking after Mr Ibrahim. Q. And if a mental health professional and the involvement of a mental health professional was part of the conditions of an ESO - extended supervision order - that would wholly satisfy the concerns you've expressed? A. Yes, potentially. I probably would have to say, it depends on what are the - what would be the conditions after review. But yes, potentially some modifications, some allowance for autonomy and encouragement to engage in psycho-social rehabilitation. Q. Do you also agree that - the very last sentence of paragraph 213 on page 48 - you've referred to balancing. Do you agree with me that it would be preferable for that balancing to be undertaken in one year's time - rather than today or at the point of imposition of the order - to work out what the particular needs and risks were as at that time? A. That is a fair point, yes. Q. You agree, that would be preferable? A. They could - yes, potentially they could review it in one year's time, as to how to balance the need between the prediction of - sorry. [Emphasis added.]
The State contended that the evidence of Dr Dayalan on re-examination suggests that the expert was not opposed to a longer duration. I will return to those submissions below.
In the Klamer Report, Dr Klamer, relevantly opined: The duration of a proposed three-year period for the ESO appears appropriate and relevant given the range of dynamic risk factors identified as relevant for Mr. Ibrahim to address, in addition to his documented history of non-compliance with such as orders. This proposed period would allow Mr. Ibrahim sufficient time to address these factors.
She did not expand upon that opinion at the hearing.

[81]

Submissions of the State

As to duration, the State contended that a period of 3 years was the appropriate tern for any ESO made in respect of Mr Ibrahim. In support of that contention, in the State's Primary Submissions, the State advanced the following submissions: 168. In respect of the issue of the term of the ESO, the experts do not speak with one voice. On the one hand, Dr Dayalan has recommended a term of 1 year, on the basis that enforcement of an ESO with "restrictive" conditions for "protracted periods of time may actually impede [Mr Ibrahim's] psychosocial rehabilitation". Dr Klamer, on the other hand, has opined that a term of 3 years "appears appropriate and relevant given the range of dynamic risk factors identified as relevant for Mr Ibrahim, in addition to his documented history of non-compliance with such orders". 169. Subject to any evidence and/or submissions from Mr Ibrahim as to the appropriate term of the ESO - in respect of which the State reserves its right to reply - the State presses its application for an ESO for a period of three years for the following reasons: a) First, as Dr Dayalan himself observed, "Mr Ibrahim's risk of engaging in violent extremism appears to be mostly relevant to periods of him being acutely unwell". Mr Ibrahim's history indicates that he has been prone to periods of "acute unwellness" for his entire adult life and, given the nature and chronicity of his mental health condition, he is likely to remain so. The risk that Mr Ibrahim poses is therefore a risk liable to being realised over the longer term, rather than simply the next 12 months. This points in favour of imposing an ESO for a longer period than 12 months. b) Second, Mr Ibrahim has spent the entirety of the past 5 years in custody and, indeed, the majority of his adult life. It is likely that he is institutionalised to some extent. It follows from this that his transition to the community will be challenging and is likely to involve some fits and starts; he will require significant interventions from Community Corrections and health and allied services. This, again, points in favour of imposing an ESO for a longer period than 12 months. It is worth noting, in this respect, that when the District Court sentenced Mr Ibrahim for the index offence, it imposed a sentence which comprised a non-parole period of 2 years and 9 months and an additional term of 2 years and 3 months. Judge Scotting remarked that, in view of Mr Ibrahim's mental illness, issues with drug use and need for "significant support", "he will benefit from a longer period of time on parole". As events transpired, Mr Ibrahim did not have the benefit of this period of time on parole. Accordingly, imposing an ESO for the 3 year period sought by the State would ensure that Mr Ibrahim has the necessary resources and supports available to him for the period that he is likely to require to transition to community life, while at the same time ensuring adequate supervision for the "safety of the community" (as per s 3 of the THRO Act). c) Third, to the extent that Dr Dayalan's concern with a longer ESO is connected to a concern about the "restrictiveness" of the conditions of the ESO, it is important to recall that the conditions of the ESO require involvement by treating clinicians and import flexibility and reviews. Thus, any restrictiveness can be reduced if found to be counterproductive. The Court can expect that Mr Ibrahim's supervision will be undertaken in "a common sense" and "practical" way: see again Farringdon [2018] NSWSC 874 at [46] and [59].
In closing oral submissions at the hearing, the State supplemented its submission with reference to the evidence of Dr Dayalan: Dr Dayalan in his report had suggested that the duration of an extended supervision order should be one year, but the evidence that your Honour heard this morning from Dr Dayalan, with an acceptance that it may be preferable to have a longer order, but to have it administered by those administering the order, with liaison with mental health professionals, being aware of the potential that there could become a point where the benefits of strict conditions was diminished because there was an adverse effect, in which case the better course would be to modify the conditions, and to undertake that balancing in a year's time rather than today. So that was the only other matter I wanted to refer to orally - namely, that ultimately, Dr Dayalan's evidence in the witness box was supportive of a longer form of ESO than one year, but with those administering it performance risk assessments and being alive to the risk that there may come a point where the conditions, if not modified, may become counterproductive.
In the State's May Submissions, the following further submissions were made with respect to duration: 20. The State contends that a period of 3 years is the appropriate term for any ESO made in respect of the Defendant. 21. The State addressed the rationale for seeking a 3 year term at PS[168]-[169] and relies upon those submissions. 22. The Defendant now relies on the evidence of Dr Dayalan that a period of 1 year would be preferable, as he identifies that the restrictive conditions of the ESO may "if enforced for protracted periods of time may actually impede his psychosocial rehabilitation". 23. However, Dr Dayalan evidence does not support finding that a term of 3 years is inappropriate. In cross-examination, Dr Dayalan accepted that: a. The adverse impact on psychosocial rehabilitation over time could be equally addressed by amelioration or modifying the conditions to which the ESO was subject; b. that some modifications to the conditions imposed as part of the ESO after a 1-year review with the involvement of a mental health professional that allowed for autonomy and encouragement to engage in psychosocial rehabilitation would wholly satisfy the concerns that he raised regarding the protracted duration of an ESO; and c. it would be preferable to strike the balancing test between the need to stabilise the Defendant's mental health and the need to facilitate psychosocial rehabilitation (to which he referred to at [213] of his report) in 1 years' time, rather at the outset of the imposition of the ESO. 24. On that basis, the Court would find that Dr Dayalan's evidence in fact supports the imposition of an ESO for a duration greater than 1 year, so long as the conditions are reassessed at a 1-year review with the input of a mental health professional.

[84]

Principles

Under s 29(1A), the imposition of certain conditions is mandatory unless the Court "orders differently". The mandatory conditions include conditions requiring the offender: 1. to wear electronic monitoring equipment as directed (s 29(1A)(b)); 2. not to use prohibited drugs or abuse drugs lawfully obtained (s 29(1A)(g)); 3. to submit to drug and alcohol testing (s 29(1A)(h)); 4. not to possess a firearm or certain other weapons (s 29(1A)(i)); and 5. to undergo ongoing psychological or psychiatric assessment or counselling as directed (s 29(1A)(k)).
The following principles are relevant to the Court's power to impose conditions under s 29(1) of the THRO Act: 1. The criterion by reference to which a proposed condition must be assessed is "appropriateness". To use some other criterion - for example, whether the proposed condition might be thought to be "an expression of State paternalism" - is to invite error: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") at [53], cautioning against any "use of language which is different from the statutory text" (cf State of New South Wales v Bugmy [2017] NSWSC 855 at [89]). 2. Determining "appropriateness" will involve a "balancing exercise", "in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective": Lynn at [129]. 3. It is unnecessary for there to be a "specific demonstrated link" between the proposed condition and "the past offending which is the basis of the order [ie, the ESO]", and, conversely, it is not appropriate for the proposed condition to be "directed to general future criminal conduct": Wilde at [53]-[54]. Rather, in assessing appropriateness, the ultimate question is whether - having regard to the "scope, purpose and objects" of the THRO Act - the proposed condition is appropriate to address the risk posed by the offender of committing an offence of the sort with which the Act is concerned: Wilde at [53]. 4. The conditions of an ESO can impose both "constraints" and "positive obligations": Tillman at [10]. Thus, for example, they may extend "to ordering mandatory participation in treatment and rehabilitation programs": Tillman at [10]. 5. While the Court would bear in mind that a statutory offence may be committed if a condition is breached (State of New South Wales v Ali [2010] NSWSC 1045 at [88]), the Court is also entitled to "expect" that an officer charged with administering an ESO will "undertake [an offender's] supervision in a common sense way, informed by a practical and constructive exercise of discretion": State of New South Wales v Farringdon [2018] NSWSC 874 at [46] and [59].

[86]

Part A: Supervision, Movements and Reporting - Condition 1

Condition 1 as set out in the Schedule and proposed by the State was in the following terms: 1. The defendant must submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements).
This is a prescribed condition: s 29(1A)(a).
Mr Ibrahim agreed to condition 1, subject to the inclusion of words to the effect of the following: "should a medical emergency occur the defendant will inform the enforcement officer as soon as practicable". The State did not support the variation proposed by Mr Ibrahim.
The State contended that the condition, in the terms proposed, was necessary to ensure a "minimum level of supervision" and "allows enforcement officers to intervene in situations of emerging or increasing risk". That submission was supported with reference to the evidence of Mr Bagley.
In Mr Bagley's affidavit of 23 April 2021, he deposed: 26. It is necessary for the Defendant to follow all reasonable directions given by an enforcement officer to ensure that they can intervene in situations of emerging or increasing risk. An example is where an offender refuses to answer phone calls from an enforcement officer or unreasonably delays returning such phone calls. This might occur where an enforcement officer is attempting to call an offender regarding a tampering or charging alert or non-responsive electronic monitoring device; or where an offender is required to do something to secure accommodation, e.g. sign a tenancy agreement.
The State further submitted that a schedule of conditions enables an enforcement officer to undertake an advance risk appraisal of Mr Ibrahim's proposed locations and activities and ensures prosocial programming (boredom being a risk factor leading to drug use/deterioration in mental health for Mr Ibrahim).
The Court ultimately accepted the position of Mr Ibrahim. Condition 1 was imposed in the terms proposed by the State, together with words to the effect of the addition proposed by counsel for Mr Ibrahim, permitting a reasonable degree of flexibility to accommodate genuine medical emergencies.

[87]

Part C: Financial Oversight - Conditions 8 and 9

Condition 8 and 9 as set out in the Schedule and proposed by the State was in the following terms: 8. The defendant must not enter into a transaction for more than $500, including through an agent or a third party, without informing an Enforcement Officer. 9. The defendant must not transfer any funds outside Australia, including through an agent or a third party, without informing an Enforcement Officer.
As to condition 8, Mr Ibrahim's position was one of agreement subject to a limit of $2,000 in lieu of $500. It was contended: 1. Condition 8 is unnecessary for the management of the particular risk presented by Mr Ibrahim as his risk relates to management of his mental health and he has not previously presented any risk involving the use or misuse of funds. 2. In support of the proposed variation, counsel for Mr Ibrahim submitted that Mr Ibrahim has never transferred funds. Reliance was also placed on the Eagle Report. Dr Eagle had reported that, if Mr Ibrahim were unwell "his organisational capacity and access to funds is likely to reduce when his mental health is less stable". It was contended, at such times, he could not be sufficiently organised to engage in such an act. 3. Reference was also made to the decision of Campbell J in State of New South Wales v Church (Preliminary) [2021] NSWSC 246 ("Church"). In Church at [104], his Honour declined to include a like provision relating to informing the enforcement officer of transactions larger than $500, on the basis that "Mr Church is an ordinary working person in regular employment as a scaffolder" and as the breadwinner of his household, transactions of more than $500 would not be very unusual". If Mr Ibrahim resumes work in his family business he may indeed require transactions of this amount. Hence, it was submitted, the condition as proposed in the primary position of the State is "onerous and does not connect to any mitigation of risk".
Whilst the State opposed the proposed limit of $2,000, in alternative to its primary position, the State submitted it would not oppose a limit of $1,000.
In support of the imposition of condition 8, the State contended that "this condition allows an enforcement officer to monitor the defendant's finances and detect early warning signs of increased impulsivity". Further, monitoring of finances may detect expenditure consistent with drug use. In this respect, reliance was placed upon the evidence of DSC Patch. Further, it was submitted, recent CSNSW Intelligence Reports note Mr Ibrahim's activities in sourcing and directing transfers of funds, and involvement in obtaining contraband, whilst in prison.
DSC Patch gave the following evidence in his affidavit of 23 April 2021 (which also applied to condition 7, which was not opposed): 23. This condition allows an enforcement officer to monitor the defendant's finances and may also provide an early warning sign of increased impulsivity associated with risk, as increased spending could be linked to high-risk behaviours. Enforcement officers would ask the defendant to provide information such as purchase receipts if he goes to places such as hardware stores, in order to monitor the types of things he might buy. This condition may be used to verify, for example, that the defendant does not purchase chemicals, parts or electronic components which could be used to manufacture firearms, weapons or improvised explosive devices. 24. Further, monitoring of finances may detect expenditure consistent with the use of drugs (for example, any repeated, relatively small cash withdrawals). Due to the connection between drug use and the defendant's mental health, this would be an important tool in monitoring the defendant's risk.
Dr Eagle observed that Mr Ibrahim's organisational capacity and access to funds was likely to reduce when his mental health is less stable. She opined: Organisational skills and access to funding and sources of help (low/moderate): Mr Ibrahim has engaged in robberies for substantial sums of money. He has some capacity to raise funds, although this is more likely when his mental health is stable. His organisational capacity and access to funds is likely to reduce when he his mental health is less stable.
It is also relevant to note the sentencing remarks of Charteris DCJ. As earlier mentioned, when being sentenced for his 2002 armed robbery offences, Charteris DCJ had emphasised the "disturbing feature that [Mr Ibrahim] had access to a gun" and the "troubling" lack of evidence "as to where he acquired the gun or what he did with it after the commission of the offences".
After considering the respective submissions of the parties and, in particular, the evidence of Dr Eagle and DSC Patch, the alternative condition proposed by the State was imposed. Whilst it is true that Dr Eagle noted a decreased capacity for Mr Ibrahim to organise large funds when his mental health is less stable, that observation did not detract from the fact Mr Ibrahim had previously engaged with substantial sums of money. Further, I accept the submission of the State that monitoring of spending in excess of $1,000 enables the enforcement officer to monitor for signs of increased impulsivity and that such monitoring may also be relevant to the risk factors associated with substance use. The condition, in my view, serves as an appropriate means of monitoring risk factors associated with Mr Ibrahim in conjunction with other controls within the schedule of conditions.
In the light of the ruling in condition 8, condition 9 was not pressed.

[88]

Part D: Electronic Monitoring - Condition 10

Condition 10 as set out in the Schedule and proposed by the State was in the following terms: 10. The defendant must wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment.
The condition is a prescribed condition: s 29(1A)(b).
The court appointed experts both gave evidence with respect to electronic monitoring. Dr Eagle opined: External monitoring and oversight: Given Mr Ibrahim's insight, previous non-compliance and antisocial personality traits, it would appear unlikely that Mr Ibrahim would be able to or willing to engage in many of the above strategies without a clear external mandate with consequences. A collaborative approach between mental health and corrective or law enforcement services is likely to be the most effective strategy in facilitating the above risk management plan.
Dr Dayalan observed: 204. Mr Ibrahim continues to have limited insight into his mental illness and substance use disorder. Unless there are immediate consequences to any non-compliance with treatment or substance misuse, there is a high likelihood of Mr Ibrahim not complying with the treatment conditions. It is noted whilst on parole, Mr Ibrahim had continued to use illicit drugs and be non-compliant with medication. These breaches did not result in immediate consequences of concern to Mr Ibrahim and therefore did not appear to a significant deterrent to failure in complying with conditions.
Mr Bagley also, relevantly, deposed: 39. The requirement that a defendant be fitted with an electronic monitoring device assists both the HRTO Unit and THRO Unit to monitor the Defendant's whereabouts and activities, including whether the Defendant might be engaging in activities or associating with persons of a security concern. Electronic monitoring can enable enforcement officers to verify an offender's compliance with conditions that restrict an offender's movements, such as movement schedules, place and travel restrictions, curfew, or accommodation conditions. It enables effective enforcement of conditions either through real-time monitoring or review. 40. The electronic monitoring system alerts electronic monitoring officers, who work on a 24 hours' a day, seven day roster, of when: a. An offender approaches or enters a prescribed exclusion zone (which in the Defendant's case includes the Bankstown Central shopping centre where the Defendant committed the index offence. b. An offender breaks curfew and leaves home outside of approved times. c. An offender deviates from approved travel routes. d. An offender takes excessive amounts of time travelling between scheduled activities. e. An offender fails to attend scheduled appointments with service providers. f. An offender breaches travel restrictions, i.e. leaving NSW without approval. 41. Electronic monitoring provides a strong deterrent against an offender deviating from their schedule or going to places where they can easily evade various forms of surveillance such as CCTV or physical observation. As a result, electronic monitoring can promote compliance with schedules of movements, exclusion zones, travel restrictions and curfews. 42. If the defendant is detected deviating from their schedule through electronic monitoring, an electronic monitoring officer can assess the deviation and determine the appropriate level of intervention. If the offender enters an exclusion zone or high risk area, or if their location at a particular time suggests heightened risk of serious offending, the HRTO Unit can be alerted to intercept the offender. An enforcement officer can also be alerted and telephone the offender to ask where they are and what they are doing. 43. Without electronic monitoring, an enforcement officer would need to physically attend the offender's residence to ensure his compliance with other conditions. Electronic monitoring allows an offender's compliance to be verified without having to conduct such intrusive checks on the offender. 44. For terrorism high risk offenders, the ability of enforcement officers to know the Defendant's location at all times is a critical tool in detecting heightened risk of offending.
As to the evidence of Mr Bagley, counsel for Mr Ibrahim contended that the rationale offered by Mr Bagley was "not specific" to the circumstances of Mr Ibrahim and rather, "demonstrates that the condition is being imposed to make it easier for the electronic monitoring officers to track his movements". The condition is opposed for "not targeting [Mr Ibrahim's] risk factors".
Counsel for Mr Ibrahim further contended that, given any risk that he may pose only arises when his mental health deteriorates and he suffers persecutory delusions, the condition proposed by the State, in this respect, "has [the] potential to exacerbate any persecutory delusions [Mr Ibrahim] may experience and therefore does not mitigate his risk". Counsel for Mr Ibrahim submitted that the condition was "onerous" and submitted that visible 24 hours per day monitoring may have the reverse effect. Hence, it does not go towards mitigating any risk that he poses.
The State pressed the condition and advanced the following submissions: 1. Electronic monitoring allows enforcement officers to verify an offender's compliance with movement schedules, place and travel restrictions, curfews or accommodation conditions. It enables effective enforcement of conditions either through real-time monitoring or review. 2. Without it, an enforcement officer would need to physically attend the offender's residence to ensure his compliance with other conditions. That submission was once again supported with reference to the evidence of Mr Bagley (set out above). 3. Reliance was also placed on the Dayalan Report and the Eagle Report.
In light of the material before the Court, in particular, having regard to the risks identified by the court appointed experts and Dr Eagle with respect to Mr Ibrahim's limited insight into his offending and his history of non-compliance, the Court ruled it appropriate, in all the circumstances, that condition 10 be imposed as set out in the Schedule. The Court was not directed to any evidence that would support an order against the imposition of the prescribed condition.

[89]

Part E: Accommodation - Condition 14

Condition 14 as set out in the Schedule and proposed by the State was in the following terms: 14. The defendant must be at his approved address between 9.00pm to 6.00am unless other arrangements are approved by an Enforcement Officer.
Each of the experts addressed considerations of risk relevant to the imposition of a curfew: 1. Dr Klamer noted that one risk factor for defendant was susceptibility to influence, observing that: "When mentally unwell or under the influence of substances, Mr Ibrahim may present as at risk of being indoctrinated or controlled by individuals around him who are supportive of extremist action". 2. Dr Dayalan has noted that: "In the context of being unwell, Mr Ibrahim will probably be susceptible to influence as his judgement is likely to be impaired when unwell and he could be influenced by any individual who fuels his delusional beliefs". 3. Although Dr Eagle assessed Mr Ibrahim's susceptibility to influence, control or indoctrination as "low/moderate", she also commented that: "In the context of relapses of his mental illness, and the increased intensity of persecutory beliefs that may fuel underlying perceived grievances and result in intensified religious beliefs, I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance".
Mr Bagley, relevantly, deposed: 50. This condition complements other controls such as a schedule of movements, electronic monitoring and place and travel restrictions. If the Defendant does not comply with the curfew requirement, then the HRTO Unit would take steps to ascertain his whereabouts. The curfew requirement also assists to monitor activities during the evenings (because an offender will be at a known location) and to ensure that any risk indicating behaviours are confined to daytime activities, unless otherwise approved. A requirement that the defendant abide by a curfew will also curtail his ability to obtain or use alcohol or other drugs.
Counsel for Mr Ibrahim submitted that, subject to amendment, the curfew condition was not opposed. It was proposed that the curfew should be of 11pm to 6am. That variation was supported by the following submissions: 1. Mr Ibrahim has a protective family with whom he lived who have in the past and will continue to assist him to remain well. The imposition of curfews and stringent accommodation obligations is a significant and unnecessary intrusion and invasion upon Mr Ibrahim's privacy and liberty, and also the privacy and liberty of his family. 2. The condition put forth as the primary position of the State does not address any identified risk because Mr Ibrahim has not previously committed offences or been involved in anti-social behaviour at night-time. 3. The condition is unduly restrictive and may prevent him from having contact with his daughters and ex-wife at a time that is practical for them, so should not be imposed.
The State opposed the variation suggested by Mr Ibrahim. However, as an alternative position, the State submitted that it "would agree to a curfew of 10:00pm to 6:00am". It was submitted that the condition compliments other controls, assists with monitoring evening activities and ensures that risk-indicating behaviours are confined to daytime, unless otherwise approved. Reference, in this respect, was again made to the evidence of Mr Bagley.
The Court accepted the submissions of Mr Ibrahim and adopted the suggested amendment by counsel for Mr Ibrahim. The adjustment is not at odds with the evidence of Mr Bagley, noting that the condition still enables effective monitoring of activities during the evenings. However, the extension to 11pm, as opposed to 9 or 10pm, provides Mr Ibrahim with the ability to attend social gatherings with positive associates, which may occur in the evening. The alternative curfew proposed by counsel for Mr Ibrahim is particularly appropriate, in the circumstances of Mr Ibrahim, noting that the evening hours have not been shown to be of particular significance to his prior offending. This condition is primarily serving as a means of monitoring that compliments other controls in the schedule of conditions.

[90]

Part H: Drugs, Alcohol and Gambling - Conditions 25-28

Conditions 25-28 as set out in the Schedule and proposed by the State were in the following terms: 25. The defendant must not possess or consume alcohol. 26. The defendant must not enter any licensed premises without the approval of an Enforcement Officer, except licensed restaurants and cafes. 27. The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with people who are consuming or under the influence of illegal drugs or alcohol, unless an Enforcement Officer approves the defendant to associate with persons consuming or under the influence of alcohol. 28. The defendant must not gamble, unless approved by an Enforcement Officer.
The following evidence of the court appointed experts, Dr Eagle and Dr Strum is relevant to this consideration: 1. Dr Dayalan opined: 1. that the risk of Mr Ibrahim engaging in violence motivated by religious or ideological cause would be significant in the context of relapse of acute psychosis in the community whilst receiving minimal supervision and support, using illicit drugs and alcohol and having access to weapons; and 2. that use of illicit drugs such as crystal methamphetamine and cannabis will exacerbate his psychotic symptoms and will therefore have a bearing on the risk of engaging in violent behaviour justified by his religious/ideological beliefs. 1. Dr Dayalan, in particular, noted that the "[d]isinhibiting effects of alcohol can adversely affect impulse control and judgement, thereby contributing to escalation in the risk when Mr Ibrahim is mentally unwell". 2. Dr Klamer noted that should Mr Ibrahim engage in an act of extremist violence, this appears "most likely to occur with the context of a lack of compliance with his mediation regime, a relapse into substance use, and an associated deterioration in his mental health with a re-emergency of paranoid or religious delusions". 3. Dr Eagle opined that Mr Ibrahim's use of illicit substances and alcohol would precipitate and/or exacerbate a relapse of his severe mental illness increasing his risk of engaging in an act of violent extremism. 4. Dr Strum also noted that Mr Ibrahim said that: "His first stay in gaol resulted from a conviction for assault… He said that he was smoking a lot of marijuana and taking Rohypnol. He was also using alcohol". In 1999, Mr Ibrahim acknowledged that there was a connection between his past offending and alcohol use.
As to conditions 25-26, counsel for Mr Ibrahim advanced the following submissions in opposition to their imposition: 1. Condition 25, it was submitted, is unnecessary for the management of the particular risk presented by Mr Ibrahim as he rarely drinks much alcohol. That submission was supported with reference to the Eagle Report; in which the expert noted that Mr Ibrahim reported never being able to drink much alcohol. 2. Further, it was contended that Mr Ibrahim's mental health relapse has not been triggered by the use of alcohol. Rather, it was submitted, his mental health relapse is triggered by a change to his medication. Alcohol has not been involved in his previous offending behaviour. Condition 25, therefore, does not target this specific risk, but rather seeks to "unduly impose on his enjoyment of life and drink alcohol at his residence and at a licensed premise within the legal limit". 3. As to condition 26, counsel for Mr Ibrahim submitted that it is also unnecessary for the management of the particular risk presented by Mr Ibrahim. Additionally, it was contended, it may have an adverse impact upon Mr Ibrahim as a result of excluding him from social get-togethers with his family and close friends who offer him important support.
The State pressed the conditions in the terms proposed. It was submitted that the conditions were required in the light of Mr Ibrahim's long history of abusing illicit drugs and prescription medicines. The use of drugs is tied to deterioration in Mr Ibrahim's mental health condition, which is, in turn, tied to his risk of committing a serious terrorism offence. That submission was supported with reference to the evidence of Mr Bagley.
As to condition 27, counsel for Mr Ibrahim advanced the following submissions in opposition its imposition: 1. There is no evidence of Mr Ibrahim either: 1. having associated with any persons from any groups which might hold violent extremist views or support or engage in terrorist acts; or 2. having met with or supported any persons or groups engaged in terrorist acts - in Australia or overseas. Hence, it was contended, there is no basis for considering that he is a risk of doing so in the future. 1. The condition is onerous on Mr Ibrahim and his family for enforcement of Mr Ibrahim's obligations. 2. In operation this condition would prevent Mr Ibrahim from being around his family if they are consuming alcohol, unless he received approval from an enforcement officer. 3. Counsel for Mr Ibrahim once again placed reliance upon the potential adverse impact of the condition. It was submitted that the support from his family and close friends is the strongest way to mitigate any of defendant's risk; in particular, it was noted, Mr Ibrahim had a strong relationship with his family, his ex-wife and his children. It was contended that the imposition of condition 27 could potentially isolate Mr Ibrahim from some of his support network if they are legally consuming alcohol.
The State's alternative position, in relation to condition 27, was for the form of the condition imposed on the ISO, namely: 27. The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with people who he is aware, or should reasonably be aware, are consuming or under the influence of illegal drugs or alcohol, unless an Enforcement Officer approves the defendant to associate with persons consuming or under the influence of alcohol.
The State again relied upon the evidence of Mr Ibrahim's a long history of abusing illicit drugs and prescription medicines and its submission advanced supporting the imposition of conditions 25-26.
As to condition 28, counsel for Mr Ibrahim sought to amend the condition to allow Mr Ibrahim to gamble with an approved fortnightly limit of $200. Counsel for Mr Ibrahim proposed the following wording: "the defendant be allowed to gamble with an approved fortnightly amount of $200.00. The defendant must not gamble beyond that limit, unless approved by an enforcement officer".
The defendant submitted, in that respect, that gambling is a legal recreational activity that should not be taken away by this condition. The condition, it was contended, is "punitive in nature because it does not address or mitigate any presented risk shown by Mr Ibrahim". By the proposed amendment, Mr Ibrahim sought to exercise his right to lawfully gamble.
As to condition 28, the State pressed the condition and, in that respect, relied upon evidence of Mr Ibrahim having engaged in excessive gambling at a time when his mental health deteriorated. Reference was made to the evidence of Mr Bagley: 63. The defendant has a vulnerability in terms of gambling. Increased gambling could put the defendant into a situation of financial distress and increase his risk of relapse into drug misuse and a deterioration of his mental health. This is of concern as he is currently unemployed and has no apparent means of financial support other than regular Centrelink payments.
Upon consideration of the evidence before the Court and the respective submissions of the parties, the Court made the following rulings (with reference to Ex 8): 1. Conditions 25 and 26: The State's primary position, namely, the form of the condition set out in the Schedule. 2. Condition 27: The State's alternative position, namely, the form of the condition imposed on the ISO. 3. Condition 28: The defendant's position was adopted.
The reasons for those rulings are as follows: 1. As to condition 25, I do not accept the submissions advanced by counsel for Mr Ibrahim that the fact the defendant "rarely" drinks renders the condition unnecessary. That submission is not supported by the expert evidence before the Court. The court appointed experts, Dr Eagle and Dr Strum each identified the connection between alcohol and/or substance use and Mr Ibrahim's previous offending. Reference was also made to the risks associated with relapse. In the face of such evidence, little weight may be placed upon the present fact of Mr Ibrahim's limited drinking habits. 2. As to condition 26, the condition provides, in my view, an appropriate means of monitoring Mr Ibrahim's activities associated with the risk factors of relapse. Additionally, I do not find the condition to be unduly burdensome. Should Mr Ibrahim find himself having need to attend a licensed premised, he may do so provided he seeks and obtains permission from his enforcement officer. This is necessary precaution to ensure the enforcement officer may effectively manage the relevant risk factors. 3. For the reasons set out in (1) and (2) above, the Court found the State's alternative condition 27 to be appropriate in the circumstances of Mr Ibrahim. 4. As to condition 28, having regard to the evidence of Mr Bagley and the submissions of the State that Mr Ibrahim has in the past engaged in "excessive gambling at a time when his mental health deteriorated", I find the regulation of that activity to be relevant to the enforcement officers ability to effectively monitor Mr Ibrahim, in particular, the risk factors associated with mental health and relapse. However, the complete ban of the activity is not required to effectively monitor those risks. The defendant's proposed inclusion of an "approved fortnightly limit of $200" does not preclude effective monitoring by an enforcement officer and places a reasonable limit against which monitoring may be undertaken.

[91]

Part J: Psychological/Psychiatric Assessment, Counselling & Medical Treatment - Condition 36

Condition 36 as set out in the Schedule and proposed by the State was in the following terms: 36. The defendant must notify an Enforcement Officer immediately if he ceases to take any medication referred to in the above condition.
The following evidence of the Drs Eagle and Dayalan is relevant to the consideration of condition 36: 1. Whilst Dr Eagle assessed Mr Ibrahim's overall risk of engaging in violence justified by a religious ideology as "moderate", she also commented that "[t]his overall risk is likely to increase in the context of limited access to appropriate support and risk management strategies in the community and it would likely reduce with effective risk management, appropriate levels of support and assertive mental health treatment". 2. Dr Eagle also opined that due to Mr Ibrahim's lack of insight, substance use disorder, and repeated history of non-compliance with treatment, he could be considered at high risk of relapse. 3. Dr Dayalan opined: 194. Mr Ibrahim poses a high risk of non-compliance with treatment especially his depot medication unless there are adequate external measures to ensure compliance. It is noted that community treatment orders and parole orders have not been effective in ensuring compliance in the community. He has indicated to his current treating team that he would like to cease his depot medication. Non-compliance with treatment is associated with high risk of deterioration in his psychotic symptoms and therefore will indirectly increase his risk of engaging in an act of violent extremism.
Mr Bagley deposed (with respect to conditions 35 and 36): 71. These conditions are necessary to guard against the risk that the Defendant might cease to comply with any pharmacological components of his mental health care plan (noting again that the Defendant has a long history of failing to do so). The conditions would allow enforcement officers to act quickly if the Defendant stopped taking any prescribed medication and there was a resulting increased risk to the community or the Defendant's ability to comply with his ESO. Enforcement officers with a specific and detailed knowledge of the Defendant's risk factors will be in a better position to respond immediately to mitigate any developing risk as opposed to medical professionals who may not necessarily be aware of the immediate consequences for community safety (and who would likely be more focussed on treating the Defendant's condition than on managing any terrorism related risk he might pose to the community).
Counsel for Mr Ibrahim opposed the condition as proposed and advanced the following submissions: 1. The obligation to comply with a CTO is sufficient and that the proposed condition would unnecessarily and inappropriately criminalise any failure by Mr Ibrahim to comply with a CTO or to take his medication or receive therapy. 2. The addition of this second layer of control may lead to confusion for Mr Ibrahim. The CTO alone should monitor his medication and communication about such medication. This condition may in fact exacerbate risks of deterioration of Mr Ibrahim's mental health if he becomes confused about who is in charge of and/or who is the point of contact for his medication.
In reply, the State contended that the condition as proposed provides enforcement officers with a specific and detailed knowledge of Mr Ibrahim's risk factors. This means they are in a better position to respond immediately to mitigate any developing risk (as opposed to medical professionals, who may not be aware of the implications for community safety). That submission was supported with reference to the evidence of Mr Bagley.
Having regard to the evidence of the experts, in particular their respective opinions as to risks associated with relapse as well as Mr Ibrahim's history of non-compliance, the Court accepted the submissions advanced by the State, in this respect. Furthermore, I note my earlier discussion regarding the distinctions between a CTO and an ESO.
Condition 36 was imposed in the terms proposed by the State.

[92]

Part L: Communication, Internet Use & Electronic Devices - Conditions 40-44

Condition 40-44 as set out in the Schedule and proposed by the State were in the following terms: 40. The defendant must obey any reasonable direction by an Enforcement Officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information). 41. The defendant must not use any of the following items unless disclosed and approved for use by an Enforcement Officer: a. Usernames other than "Monzor Ibrahim" b. Internet account (including email addresses, internet service provider accounts, social media accounts, online communities) c. Devices that have the ability to access the internet d. Passwords (including encryption codes) e. Applications (including instant messaging services) 42. The defendant must advise an Enforcement Officer of any change to any of the items listed above immediately. 43. The defendant must not delete, attempt to delete or clear data held on any of the items listed above without the prior consent of an Enforcement Officer. 44. The defendant must consent to an Enforcement Officer (or any other person requested by an Enforcement Officer) to remotely inspect any internet account used by the defendant in monitoring compliance with this Order.
Dr Eagle, relevantly, opined: 186.1. Seeker, user or developer of violent extremist materials (low): There is no information to suggest that Mr Ibrahim has sought or accessed violent extremist materials from any source. … 186.7. Susceptibility to influence, control or indoctrination (low/moderate): Mr Ibrahim denied that he is susceptible to peer influence. In the context of relapses of his mental illness, and the increased intensity of persecutory beliefs that may fuel underlying perceived grievances and result in intensified religious beliefs, I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance. … 195. Mr Ibrahim's previous threats, letter writing and markings on the cell wall appear consistent with the disorganised thought processes often observed in those with schizophrenia and contain numerous references to psychotic symptoms such as bizarre persecutory delusions and referential beliefs (misinterpreting otherwise benign events or circumstances as having personal significance). His threats of violence appear, to some extent, to be inspired or justified by religious beliefs and fuelled by his delusional preoccupation. Dr Shanahan's expert opinion that the language Mr Ibrahim has used is consistent with that used by Islamic extremist organisations suggests that Mr Ibrahim has had some exposure to such language and may be susceptible to influence, particularly during re-lapses of his illness.
Dr Dayalan, relevantly, opined: 212. I note the conditions included in the order sought are quite restrictive and if enforced for protracted periods of time may actually impede his psychosocial rehabilitation. Individuals with schizophrenia often have negative symptoms that impacts on their motivation to engage in social and occupational functioning. Any additional barriers to his engagement in activities to enhance his social and vocational skills will impact on his prospects of psychosocial rehabilitation.
Counsel for Mr Ibrahim opposed the imposition of conditions 40-44. The following submissions were advanced: 1. The conditions are "extremely burdensome" and could be perceived by Mr Ibrahim as "confirming his persecutory delusions that he is being controlled or closely monitored by the government". This is likely to lead to Mr Ibrahim's mental health being adversely affected rather than ameliorated. This does not mitigate any risks that he poses. 2. It was contended that there was "no evidence to suggest that Mr Ibrahim has utilised any electronic devices or at any time used the internet or social media for the purposes relating to terrorism or violent extremism". 3. Further, it was submitted that Mr Ibrahim has denied any exposure to online extremist material or groups. Reference, in that respect, was made to the observations of Dr Eagle, namely, that "there is no information to suggest that Mr Ibrahim has sought or accessed violent or extremist materials from any source" (Eagle Report at para 186.1). 4. Reliance was also placed upon the evidence of Dr Dayalan, as extracted above.
The State pressed each of the conditions and submitted that they operate together to allow enforcement officers to monitor Mr Ibrahim's associations and activities, including any contact with extremists. The State also relied upon a CSNSW Intelligence Report dated 5 October 2019 to contend that Mr Ibrahim "is also not a naïve user of electronic communications … Mr Ibrahim was able to co-ordinate a three way call for the purpose of obtaining funds to be transferred into various bank accounts". It was also noted that condition 40 was a prescribed condition: s 29(1A)(m).
On balance, the Court accepted the position taken by the State that the conditions operate together to allow enforcement officers to effectively monitor Mr Ibrahim. Whilst I have had regard to the evidence of Dr Dayalan, who noted the potential impediment of such conditions upon his mental health if imposed for "protracted" periods of time, presently, I had found the compelling opinions of Dr Eagle as to the risks associated with relapse and her observation that "I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance". Further, Dr Eagle opined that Mr Ibrahim may be particularly susceptibility to such anti-social influence in times of relapse. I find the conditions to be an appropriate means of monitoring Mr Ibrahim so as to effectively manage those risk factors.
Conditions 40-44 were imposed in the terms proposed by the State.

[93]

Part M: Associations - Condition 51

Condition 51 as set out in the Schedule and proposed by the State was in the following terms: 51. The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person held in custody or with any person he is aware is subject to a control order, on parole, or otherwise subject to a supervision order without prior approval of an Enforcement Officer.
As to the imposition of condition 51, the State once again relied upon the evidence of Mr Bagley. In relation to conditions 48, 50 and 51, he deposed: 95. These conditions are necessary to ensure that the defendant is not in associating with any person that may pose a negative influence in relation to extremist ideology, or drug or alcohol use.
Whilst neither conditions 48 or 50 were opposed by Mr Ibrahim, counsel for Mr Ibrahim sought a variation to the proposed form of condition 51, namely, "that the defendant is allowed to associate with Zohar Abdullah, the partner of the defendant's sister Manal Ibrahim".
Counsel for Mr Ibrahim further contended: Mr Ibrahim should feel safe in his family home and this condition unnecessarily criminalises exposure to a family member in his own home. It is burdensome and should be amended in the way proposed to avoid this unnecessary infringement upon Mr Ibrahim's associations within his own home.
The variation was opposed by the State.
Whilst the submission of Mr Ibrahim is understandable, noting the familial connection, namely, Mr Abdullah being his brother-in-law, in my view, in the circumstances, it is appropriate that such contact, at this stage, is initially limited. Further, by the terms of the condition, Mr Ibrahim may apply to his enforcement officer to seek permission to engage with Mr Abdullah. Thus, the condition includes sufficient flexibility should Mr Ibrahim seek to attend a family event in which Mr Abdullah may be present. It may be expected the condition will be applied in a constructive and practical manner.
In the result, the Court imposed the condition as proposed by the State.

[94]

Part N: Identity and Appearance - Conditions 55-56

Conditions 55-56 were set out in the Schedule and proposed by the State were in the following terms: 55. The defendant must let an Enforcement Officer photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 56. The defendant must not significantly change his appearance without the prior approval of an Enforcement Officer.
Mr Bagley, relevantly, deposed: 102. The appearance of the Defendant is essential for effective monitoring and being able to identify him easily in the community. A current photograph is essential. … 104. This condition [56] limits the Defendant's ability to avoid detection through a change in appearance. A reduced ability to monitor the Defendant could expose the community to a risk of him committing a serious terrorism offence.
Mr Ibrahim opposed both conditions. It was submitted: 1. In the context of Mr Ibrahim's mental illness and persecutory delusions, the conditions are unnecessary and burdensome. 2. Mr Ibrahim does not pose a flight risk and has not tried to disguise himself before. This condition is not directed at any specific risk posed by Mr Ibrahim and is merely unnecessarily controlling in nature.
In reply, the State contended: 1. The appearance of Mr Ibrahim is essential for effective monitoring and being able to identify him easily in the community, relying, in that respect, upon the evidence of Mr Bagley. 2. The conditions limits Mr Ibrahim's ability to avoid detection through a change in appearance. It was also submitted that any amendment to "without prior notice" would be pressed.
Both conditions are necessary for the purpose of monitoring Mr Ibrahim. They are not, in my view, unduly burdensome. The requirement that Mr Ibrahim be photographed within a week of the commencement of an order or following any significant change in appearance is plainly relevant to monitoring. Further, the related condition that permission be obtained prior to any significant change is, once again, plainly relevant to enabling the enforcement officer to effectively monitor Mr Ibrahim. Mr Ibrahim is not forbidden from changing his appearance, he must simply obtain approval prior to any drastic changes. Having regard to the evidence of Mr Bagley, I accept the submission of the State that such a condition is necessary in order to limit Mr Ibrahim's ability to avoid detection through a change of appearance.
As such, the Court ruled that the form of conditions that should be imposed correspond to the primary position of the State.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (96 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (42)

Cited By (5)