State of New South Wales v Lawrence

Supreme Court of NSW|2019-08-19|Before: Fullerton J

ick SC / J Caldwell (Plaintiff - Constitutional question) M Robinson SC / J Lucy (Defendant) I Fraser (Attorney General of NSW)

The proceedings in summary

By Summons dated 14 June 2019, the State of New South Wales ("the State") seeks final orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act") for the continued detention and/or the continued supervision of the defendant, Tukiterangi (Tuki) Lawrence. The State also seeks interim orders for his continued detention or continued supervision pending the final hearing of the Summons.
The State also seeks an order appointing one qualified psychiatrist and one registered psychologist to conduct separate examinations of the defendant and to furnish reports to the Court in advance of the final hearing.
The defendant opposes the Court making orders for his extended detention or extended supervision on either an interim basis or as final orders (and the orders that he be examined by a Court appointed expert) on the basis that the Act is Constitutionally invalid because it undermines, or is incompatible with, the institutional integrity of the Court as a repository of Federal jurisdiction under Chapter III of the Constitution, and is therefore beyond the State's legislative power. Allied to that submission is the alternative submission that particular provisions of the Act are invalid for the same reason.
In the event that the Constitutional challenge fails, the defendant submitted that the Court is without power to make interim orders for the defendant's continued detention or extended supervision because, as a matter of statutory construction, one of the statutory criteria for the making of those orders is not met.

Procedural issues

The Constitutional challenge was first raised on 30 July 2019 by service of a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). That notice was served after the matter was fixed for a preliminary hearing on 6 July 2019 (with a one day estimate) and after an application by the Attorney General that certain evidence for the purposes of the proceedings be dealt with by the Court as "terrorism intelligence" in accordance with the procedure provided for in Part 5 Div 5.3 of the Act on 25 July 2019 had been heard and determined: State of New South Wales v Lawrence [2019] NSWSC 946. Both hearing dates were fixed in circumstances where the Court was made aware that the defendant's sentence of 18 months for the index offences of demand property with intent to steal in company, contrary to s 99(2) of the Crimes Act 1900 (NSW), and being armed with intent to commit an indictable offence, contrary to s 114 of the Crimes Act, was due to expire on 21 August 2019.
On 1 August 2019 (two days after service of the notice of a Constitutional matter) the date for the preliminary hearing was vacated as were orders for the service of evidence and submissions going to the preliminary issues raised by the Summons. The preliminary hearing (together with any argument as to the Constitutional validity of the Act) was relisted to commence on 19 August 2019, two days before the defendant's sentences for the index offences expire. On 1 August 2019 a reformulated timetable was also set with a direction for the filing of submissions going to the Constitutional issue.
By 16 August 2019 the Court was provided with lengthy submissions from both the State and the defendant on the Constitutional issue, and equally lengthy submissions directed to the defendant's challenge to the Court's jurisdiction to make the interim orders sought by the State and the discretionary question that arises were the Court to find the statutory criteria for the making of interim orders of either kind satisfied. The Court was also furnished with eleven lever arch volumes of material comprising the evidence upon which the State proposed to rely at the hearing.
At the commencement of the preliminary hearing on 19 August 2019, and after the evidence to be adduced by the parties was identified and admitted with the agreement of the parties, Mr Robinson SC for the defendant addressed the issue of Constitutionality to which Mr Renwick SC responded on behalf the State.
In summary, Mr Robinson submitted that there are features of the Act which, either collectively or individually, impair the institutional integrity of the Court. In his submission they include provisions which have the effect of selectively applying the rules of evidence so as to give the appearance that the Court is an instrument of the Executive; provisions which have the effect of derogating from the principle of open justice; provisions which substantially compromise or negate the Court's discretion in significant areas of its jurisdiction under the Act; and provisions which require the Court to depart, in a significant degree, from the methods and standards which characterise the exercise of judicial power. He submitted that the High Court decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 continues to be binding authority and that there is nothing in the cases which have considered and applied Kable which would dictate any different result. He also submitted that Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 is inconsistent with the majority judgments in Kable.
Mr Renwick submitted that the Constitutional challenge particularised in Mr Robinson's written submissions, and which he addressed orally, has not been established. He submitted that the Act has much in common with the legislation considered in Fardon and Kamm v State of New South Wales (No 4) [2017] NSWCA 189 (in both cases a Constitutional challenge to state legislation was dismissed). He submitted that the commonality of provisions and their operation in this Act within the statutory framework of the legislation under consideration by the High Court and the Court of Appeal is demonstrated by a schedule (attached to his submissions) which compares key provisions of the legislation under consideration and the Act under challenge here. Mr Renwick submitted that since this Court is bound by both Fardon and Kamm, and where there is no relevant basis upon which to distinguish them, the Constitutional challenge mounted by the defendant should be dismissed.
Mr Renwick also submitted that since the High Court decisions in K-Generation Pty Limited Liquor Licensing Court [2009] HCA 4; 237 CLR 501 and Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38, each of which bear directly on the Constitutional validity of the terrorism intelligence provisions in Part 5 of the Act, are also of binding authority, this Court would need to find those cases were wrongly decided in order for the defendant's specific Constitutional challenge to Part 5 of the Act to be upheld, an argument not available to the defendant in these proceedings.
Mr Casselden SC did not wish to be heard on the Constitutional argument.
Mr Casselden then addressed the issues raised by the Summons on behalf of the State to which Mr Robinson responded. Save for a very limited submission from Mr Renwick, he did not wish to be heard on the issues raised in the substantive proceedings.
Mr Fraser, who appeared for the Attorney General of New South Wales, did not file submissions; nor did he seek to be heard on any of the matters addressed in the submissions by either the senior counsel retained by the State or senior counsel for the defendant.
Although in other circumstances the determination of a Constitutional challenge to State legislation would logically precede the resolution of an inter partes dispute as to the operation of that legislation, it was accepted by all parties that I should resolve the defendant's opposition to that part of the Summons which concerns the application by the State for interim orders first and reserve judgment on the Constitutional challenge.
It was accepted that approach would not be productive of any practical prejudice to the defendant in circumstances where, because he has been sentenced to a further term of imprisonment after the sentence was imposed for the index offence on 30 July 2019 (a sentence he is currently serving concurrently with the balance of the sentence imposed for the index offence), were I to reject Mr Robinson's submissions that the Court is without power to make the interim orders, and were I to reject his submission that the Court should not make the interim orders in the exercise of discretion, any interim orders for the defendant's continued detention or extended supervision vis the index offence would not take effect (that is, it would be "suspended") until he has served the sentence imposed on 30 July 2019, being "in lawful custody" for that offence, given the operation of ss 28(8) and 42(2).
Accordingly, this judgment will not deal with the Constitutional validity of the Act. What follows will deal only with question whether the interim orders sought by the State at the preliminary hearing ought be made.

The Summons

As noted above, in the Summons filed on 14 June 2019 the State seeks a range of orders, including final orders under ss 34(1)(b), 39(1)(b) and 40(1)(b) of the Act that the defendant be subject to a continuing detention order ("CDO") for a period of 3 years, and an order under ss 20, 25(1)(a), 26(6) and 69(2) that he be subject to an extended supervision order ("ESO") for a period of three years commencing upon the expiration of the CDO, with an order directing him to comply with a range of proposed conditions, itemised in Schedule A to the Summons, for the duration of the ESO.
The hearing on 19 August 2019 was convened as a preliminary hearing in accordance with s 24(4) of the Act with the State seeking orders under ss 41 and 42(1) of the Act that the defendant be subject to an interim detention order ("IDO") for a period of 28 days commencing from 22 August 2019 and, in the alternative, an order under ss 27 and 28(1) of the Act that he be subject to an interim supervision order ("ISO"), also for a period of 28 days commencing from 22 August 2019, and that he be directed to comply with the same conditions sought in respect of the ESO for the duration of any ISO the Court was minded to make. The interim order (whether an IDO or an ISO) was sought pending the final hearing of the Summons.

The evidence

The State relied upon the following evidence: 1. Risk assessment report of Filipa Abreu and Naomi Prince (psychologists) dated 15 May 2019. 2. Risk intervention report of Shane Bagley and Heather Jackson (Terrorism High Risk Offender Unit, Corrective Services NSW) dated 31 May 2019. 3. Report of Dr Rodger Shanahan (Research Fellow in the West Asia Program at the Lowy Institute for International Policy) dated 10 July 2019. 4. Further report of Dr Rodger Shanahan dated 13 July 2019. 5. Determination of the State Parole Authority dated 25 July 2019. 6. Affidavit of Rhiannon McMillan (Solicitor, Indictable and High Risk Offender Matters, Legal Aid NSW) (on preliminary hearing) dated 5 August 2019. 7. Affidavit of Rhiannon McMillan (on the Constitutional argument) dated 5 August 2019. 8. Further affidavit of Rhiannon McMillan (on the Constitutional argument) dated 16 August 2019. 9. Exhibit JV-1, volumes 1-3. 10. Exhibit LA-1 - Investigator's notes prepared by Detective Acting Sergeant Lachlan Aston dated 7 June 2019 to 11 June 2019.
The State read the affidavits of: 1. Jonathan Vasiliou (Solicitor, NSW Crown Solicitor's Office) dated 12 June 2019 and 25 July 2019. 2. Lachlan Aston (Detective Acting Sergeant) dated 18 June 2019 and 25 July 2019.
The defendant tendered a statement of agreed facts and read the affidavits of Rhiannon McMillan dated 5 August 2019 and 16 August 2019.
The State submitted that the application for both the CDO and an ESO satisfies the requirements in ss 37 and 23 of the Act, respectively. The defendant did not submit otherwise.
Insofar as the application for the CDO is concerned, the defendant concedes he is a an "eligible offender" as provided for in ss 34(1)(a)-(d) of the Act in that he is a detained offender (being a person who is in custody whilst serving a sentence of imprisonment for a NSW indictable offence - the index offence); the application for the CDO was made in accordance with Part 3 of the Act; he meets the definition in s 10 of the Act of "a convicted NSW terrorism activity offender" having previously made a statement advocating support for a terrorist act or violent extremism; and the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism of offence (as defined) if not kept in detention under the order.
Insofar as the application for the ESO is concerned, the defendant accepted that he is an "eligible offender" as provided for in ss 20(1)(a)-(d); that he is in custody while serving a sentence of imprisonment for a NSW indictable offence; the application for the ESO was made in accordance with Part 2 of the Act; he meets the definition in s 10 of the Act of "a convicted NSW terrorism activity offender"; and the Court would be satisfied, to a high degree of probability, that he poses an unacceptable risk of committing a serious terrorism offence (as defined) if not kept under supervision under the order.
Section 20(1)(a), which provides that in order to qualify as an eligible offender the offender must either be in custody or have been in custody at the time the original application for the ESO was made, is of some significance on the construction of what is constituted by "current custody". It will be necessary to return to the definition of "current custody" in the context of the Act in both ss 19 and 33 of the Act. As the parties recognised, it was the resolution of what is meant by that term which will determine whether the Court has jurisdiction to make the interim orders sought by the State under ss 27 and 41 of the Act.
In conceding that the application for both the CDO and the ESO was made in accordance with Part 3 and Part 2 of the Act respectively, the defendant acknowledges (or does not put in issue on the preliminary hearing) that the application for both orders was supported by documentation addressing each of the matters referred to in ss 39(3) and 25(3) of the Act, including a report (prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert), being the risk assessment report of Filipa Abreu and Naomi Prince, which assesses the likelihood of him committing a serious terrorism offence.
While the defendant conceded that the Court would be satisfied to a high degree of probability that the supporting documentation (if proved at the final hearing) supports the making of a CDO and an ESO, I propose to set out the matters to which I must have regard in making that determination as provided for in ss 39(3) and 25(3) of the Act.

Assessment of application for a CDO coupled with an ESO

Section 25(3)(b) - Likelihood of committing a serious terrorism offence

In a psychological risk assessment report, undertaken at the request of the New South Wales Commissioner of Corrective Services, the following findings were made regarding the defendant's likelihood of committing a serious terrorism offence as defined: Mr Lawrence is a 22 year old male who identifies as Muslim. ... Between the period of 2014 to 2017 Mr Lawrence made statements and/or engaged in behaviours which have contained elements of an extremist religious ideology and/or espoused support for violent extremist activities. Mr Lawrence is also reported to have engaged in online activity including viewing violent extremist propaganda, posting, commenting and /or sharing material online within an Islamic extremist context and communicating with persons of interest to counter terrorism authorities. Mr Lawrence has a longstanding criminal history which commenced early in his teenage years. He has continued to engage in non-compliant, anti-social and violent offending behaviour, with a demonstrated escalation over time in regards to his violent offending. Mr Lawrence is currently assessed within the High risk category of violent offending relative to other male violent offenders and within the Moderate/High risk of general offending. Furthermore, the current assessment placed Mr Lawrence within the High range of engaging in extremist violence. His presentation suggest the presence of an ideology that justifies the use of violence, a high degree of capacity and access, a number of relevant underlying motivations and a verbalised intention to use violence. The combination of these factors suggests a degree of imminence of risk for religiously motivated violence, violent extremism or terrorist activity. In addition to this, consideration of his likelihood of engaging in lone actor style targeted violence remains of concern, as assessed by the TRAP-18. Mr Lawrence is noted to have a number of proximal warning behaviours and distal characteristics which indicates that his behaviour warrants both monitoring and relevant intervention to manage this risk. It is also of noted significance that Mr Lawrence appears to have minimal protective factors and a number of additional indicators which may exacerbate his risk of violent extremism. In the event that Mr Lawrence is subject to a Continuing Detention Order (CDO) he may benefit from a referral to the Proactive Integrated Support Model (PRISM) service, a custody based disengagement support service. It would also be recommended that he be referred to intensive programming including the Violent Offenders Therapeutic Program (VOTP) to address his specific violence treatment needs. In the event that Mr Lawrence is subject of an Extended Supervision Order (ESO) he is likely to require high levels of monitoring, scheduling and restrictions of his online activities and associations. He may also benefit from comprehensive case management and an intervention plan.
The risk assessment report further noted at par 110 that: Overall, Mr Lawrence's rigid beliefs related to monotheism, the rejection of Western democratic norms and other non-Islamic models of governance, coupled with a critical view of Western influences and an indifference to being re-incarcerated due to his religious beliefs, may serve to intensify a "nothing to lose" mentality which may in turn serve to increase his susceptibility to engaging in violent extremism.

Section 25(3)(i) - Compliance with obligations

In determining whether or not to make final orders of the kind sought by the State, the Court may also have regard to the level of a defendant's compliance with any obligations to which he is or has been subject in the past. This extends to any obligations while on release on parole, subject to a control order, subject to an earlier extended supervision order or interim supervision order, or subject to any other order of a court.
On 21 August 2018, the defendant was released on parole under the supervision of Parramatta Community Corrections. Parole was revoked on 18 March 2019 and the defendant was returned to custody.
The defendant also demonstrated an attitude of non-compliance during an earlier release to parole in 2013. This was described in the risk intervention report as follows: Mr Lawrence was released to parole supervision on 9 April 2013 after on-site supported accommodation was secured through Family and Community Services (FACS). After only six weeks, breach action was initiated as a result of Mr Lawrence's disclosure of cannabis use and subsequent failure to reside at his approved address. A further Breach of Parole dated 16 May 2013 outlined concerns Mr Lawrence was in possession of a 'gun' and not willing to disclose his whereabouts. Mr Lawrence's parole was revoked by SPA on 24 May 2013 and he was subsequently returned to custody on 27 May 2013.
During his time in custody, the defendant has incurred a number of institutional misconduct charges. These were summarised in the risk assessment report at par 69: Over his total time in custody he incurred a total of five (5) institutional misconduct charges for both violent behaviour and general misconduct. This has included: Assault (02/07/13), Fight or other Combat and Possess Create Prohibited Goods (27/06/13), Fight or other Combat (05/03/13), Fail Comply with Correctional Centre Routine (24/02/13).
Following the revocation of parole in August 2018 and the defendant's subsequent return to custody, the defendant incurred a further institutional misconduct charge for intimidation. This involved threatening to assault staff over the Offender Telephone System.
In the risk assessment report, the defendant's response to community supervision was detailed as follows: Mr Lawrence's history demonstrates a consistently poor response to supervision commencing as a young person. He has also demonstrated a history of missing appointments, providing conflicting information, not complying with directions to reside in approved locations and absconding. As a young person, his community supervision was often aided by intensive case management from community organisations alongside Juvenile Justice/CSNSW. Case workers have attended CSNSW community supervision appointments with Mr Lawrence. Presently at the time of interviews, he demonstrated improved insight into his high risk situations for general violence and offending and had some strategies to manage potential high risk situations. However, they appeared largely avoidance based. Given this, he would require ongoing support to maintain adherence with these management strategies, structure to his activities and continued compliance. Prior releases into the community resulted in him returning to high risk areas, remaining in contact with negative peers and failing to attend appointments following a short period of compliance. This demonstrates Mr Lawrence's tendency to engage superficially with service providers and his attempts to achieve the minimum required to avoid serious penalty such as a breach of parole. During his most recent period of community supervision, he repeatedly avoided engaging with a Psychologist in the community as organised by his CCO. Of note, he was directed to engage in the CSNSW EQUIPS Aggression program whilst under supervision and file information notes he completed this in December 2018. Mr Lawrence was issued with a warrant for the revocation of his parole by the NSW State Parole Authority on 17 March 2019. At the time of his arrest by the NSWPF at his home, he reportedly stated 'Shoot me dead. I just don't care just shoot me' (Investigators note, 18/04/19). He was able to be calmed and submitted willingly to his arrest. Of note however, when he transferred to Granville Police Station and informed he would be re-entering the custody of Corrective Services NSW, he was noted to become aggressive in his presentation style and threatened the police stating '(IND) your whole house', 'one phone call and I will have all your details in a second'.
The defendant's pattern of non-compliance with a number of community based orders was also referred to in the risk intervention report: Since December 2013, Mr Lawrence has been subject to a number of community based orders. Breach reports demonstrate Mr Lawrence's non-compliance with supervision by way of drug use, failure to engage in intervention, failure to reside at an approved address and further offending. Concerns regarding Mr Lawrence's association with criminal networks and extremist ideology became apparent from 2015. He was engaging with persons holding extremist views, expressed his desire to join terrorist organisations, and made statements supporting extremist ideologies.
Further, the defendant has a history of non-compliance with bail conditions, including three consecutive breaches in 2012.

Section 25(3)(j) - Criminal history

The criminal history of the defendant is extensive and demonstrates an escalation over time in both the violence and frequency of his offending. The New South Wales Police Facts Sheets provide further details of the nature and severity of the offences attracting criminal sanction which date back to the defendant's early adolescence. A summary of the various offences is found in the risk assessment report: Charge Date Convictions 27/12/11 Destroy or Damage Property $5000 & <=$15000 17/07/12 Breach of Bail - Application to Re-determine Resist Officer in Execution of Duty (DV) Destroy or Damage Property (DV) 27/07/12 Warrant Executed 01/08/12 Drive Recklessly/Furiously or Speed Manner Dangerous Take & Drive Conveyance W/O Consent of Owner

Section 25(3)(k) - Views of sentencing court

On 1 March 2018, McAnulty LCM sentenced the defendant to imprisonment for a period of 18 months with a non-parole period of 6 months for demanding property by force in company with intent to steal, contrary to s 99(2) of the Crimes Act and being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act (the index offences). The sentence for the index offences commenced on 22 February 2018 and is due to expire 22 August 2019.
The details of the index offences were summarised in the risk assessment report of 15 May 2019 at pars 48-50: According to NSW Police Facts Sheet (H67944567) Mr Lawrence, in the company of one co-offender and one female driver, attended the victim's premises in a car on the evening of 31 July 2017. The victim resided in this premises with his wife and daughter. The victim and his family were all home at the time of the offence and the events which unfolded were captured on private CCTV. The victim was alerted by the chime of his front door bell. Prior to opening the door, the victim first observed the CCTV television monitor. Reports indicate he saw a male wearing a hood and partially covering his face at the front door. The Police Facts Sheet indicate this male was the offender's co-offender. The victim did not answer the door and continued to view the CCTV monitor. The front door bell was again rung. The victim observed further monitors and observed another male to be standing on the front path to his home, leading up to the front door. This male is depicted as being Mr Lawrence. He was holding an item in his hand which was reported to be a baseball bat. The victim and his family did not open the door and remained quiet as to not alert the offenders outside. A few minutes later the victim received a call on his mobile phone number from an unknown number. The victim did not answer the phone. One minute later, he received another phone call from a number which was displayed. Again he did not answer the call. A short time later the victim called the number back a number of times before a connection was made. A male believed to be Mr Lawrence answered the phone and demanded a sum of money to the value of $60,000. He identified it was for 'the gold you guys took' and made it known to the victim he knew his personal information including how many members in his family. Mr Lawrence made threats of surrounding the victim's house with more individuals if he did not comply with his request. He then demanded the victim's car and truck if he did not have sufficient money to pay him.

Section 25(3)(l) - Beliefs or commitments that support engaging or participating in terrorism activities

The defendant's current and continuing affiliation with fundamentalist belief structures is demonstrated by several documented instances of support for violent extremist activities or behaviour which "contained elements of an extremist religious ideology". The risk assessment report details these instances: Whilst housed within various NSW Juvenile Justice detention centres during the period of 2014 to 2015, the following is noted: a. According to an Affidavit dated 6 February 2019, Mr Lawrence informed a Youth Officer at Baxter Juvenile Justice Centre throughout 2014 on 'multiple occasions' the following two statements: 'I'm going to Iraq when I get out and become a Jihadist' and 'I'm going to go to the USA and blow up Obama'. b. Holdings suggest that whilst housed at Riverina Juvenile Justice Centre on 21 November 2014 Mr Lawrence informed staff he was trying to send a letter to Syria, identifying he had a cousin there. When questioned by staff as to what his cousin was doing there he responded stating 'maybe if it (the letter) gets through, he will send back a bomb in the mail' (IR- 15-0638, 19/03/15) c. Holdings suggest that whilst housed at Riverina Juvenile Justice Centre on 21 November 2014 and during a metal work class, Mr Lawrence was overheard by staff to be making comments glorifying ISIS. He reportedly informed staff he has watched a juvenile behead a person and presented as excited by this. Furthermore, he informed staff that he would like to make bombs in the class (IR -15-0638,19/03/15). d. Juvenile Justice records indicate that following the Sydney Lindt Cafe Siege, Mr Lawrence made a number of remarks to a psychologist at Riverina Juvenile Justice Centre. This included expressing that the gunman was Muslim and fighting Jihad, expressing that he hoped the gunman was protesting the then Prime Minister Tony Abbott's decision to send troops to Syria, making unspecified derogatory comments about Tony Abbott and the Australian Government and making a comment that he should become a jihadist and 'behead all the rapists' (Juvenile Justice, 15/12/14) e. According to Affidavit dated 8 February 2019, on the same day as noted above, during the television broadcast of the Sydney Lindt Cafe siege, Mr Lawrence made the comment 'This wouldn't happen in my country, they'd all be dead, they'd just shoot every last one of them'. It remains unclear which country Mr Lawrence was suggesting when he referred to 'my country'. The writer of the Affidavit, youth officer Ms Birch noted Mr Lawrence had in the past made comments to the effect of 'I'm going to go to the Middle East when I get out to kill people'. f. According to an Affidavit dated 7 February 2019, Mr Lawrence expressed to a psychologist on 22 January 2015 that following contact with the Muslim Chaplain at the Riverina Juvenile Justice Centre, an acknowledgement that all his previous teachings have been from extremist individuals and he now realises they don't represent the 'true Islam'. g. Holdings suggest that a search of Mr Lawrence's room whilst housed in Juvenile Justice detention in 2015 uncovered drawings of the ISIS flag, copies of Arabic writing related to IS and references to death and martyrdom (Juvenile Justice Profile, 23/03/15). h. Holdings suggest that whilst he was housed in the Riverina Juvenile Justice Centre staff reported he overtly attempted to convert a number of other detainees to the Islamic faith. It is further noted that during a conversation with a Chaplaincy staff member in regards to his thoughts on IS, Mr Lawrence reported that whilst he is aware some people regards them as terrorists, he regarded them as 'freedom fighters' (IR - 15-0638,19/03/15). i. A review of telephone monitoring during his detention in Riverina Juvenile Justice Centre as noted in holdings suggests that Mr Lawrence was in support of 'Muslim terrorists' however during further calls he denied an intention to travel overseas. j. Holdings suggest that during February and March 2015, Mr Lawrence attempted to write a letter to a high profile offender in custody who is known for extremist beliefs. He offered to supply him with religious materials or send him and his mother money. In the letter he informed that he was willing to do anything for him (IR -15-0638,19/03/15). On 12 June 2015 a CSNSW OIMS case note indicates that Community Corrections staff were advised that Mr Lawrence was engaging in prayers with an individual known within CSNSW intelligence holdings. Holdings indicate that this individual had connections to former Brothers For Life gang members as well as individuals known to hold extremist ideologies. Mr Lawrence was given a formal non association order in regards to further associations with this individual however he continued to do so (OIMS case note 08/12/15). In clinical interview with the author, Mr Lawrence denied a current continuing association with this person. He described him as 'too Westernised' and an 'attention seeker' indicating differing religious views as a reason as to why they no longer associate. On 4 August 2015 when the abovementioned statements were further explored with Mr Lawrence by his CCO, Mr Lawrence denied making such statements and explained he would have already departed Australia if his intention was to join ISIS. He confirmed to staff his agreement with the political basis of Islamic State, however specified he did not agree with their actions or behaviours. Mr Lawrence reported to his CCO that in regards to ISIS, he 'agrees with some of the things that they do and the purpose it is done for' (OIMS Case note, 23/09/15). He also stated 'it's not like I want to be a member of IS and i have no plans to' (OIMS Case note, 23/09/15). During an Art Class whilst he was housed at Long Bay Correctional Complex, Mr Lawrence reportedly asked for a piece of paper from the teacher and then wrote the words 'Brothers for Life' in pencil. He further asked the teacher to photocopy an AK47 emblem to attach to the art paper (OIMS Case note, 12/10/15). On 22 October 2015 holdings suggest that Mr Lawrence sent an inter-gaol letter to another detainee who has been charged with a terrorism offence in connection with the Curtis Cheung murder. In his inter-gaol letter he offered him his support and financial assistance in custody. It appears from information contained in the letter that Mr Lawrence and this individual were known to each other from time spent together within Juvenile Justice. Furthermore, according to a CSNSW OIMS case note dated 14 December 2015, Mr Lawrence informed his CCO he was 'friends' with the young person who shot Police Accountant Curtis Cheng and knew another young person who was also arrested in relation to this shooting. According to Investigators Note dated 22 February 2019, Mr Lawrence's mobile phone was photographed during a search of his address on 24 December 2015. At this time the background image on his phone was of a number of unidentified men dressed in military clothing, holding weapons standing in front of a black ISIS flag. Further inquiries by NSWPF into the origins of this photo notes that they are a Chechen group of Jabhat Nusra (Al-Qaeda in Syria) and the image was from an online blog titled 'Today in Syria'. Although Mr Lawrence was displaying this photo as a background image on his mobile phone at the time, it remains unclear whether he knew of/had contact with any of these individuals. According to Investigators note dated 15 March 2019, on 23 June 2016 Mr Lawrence was taken to Merrylands Library whilst under the care of New Horizons by an employee. An affidavit provided by the employee states Mr Lawrence borrowed a total of 6 books during the visit related to Islam -two of the books included 'Inside Al Qaeda: Global Network of Terror' and 'The Rise of Islamic State: ISIS and the New Sunni Revolution'. Juvenile Justice records indicate that on 29 June 2016, Mr Lawrence attended the Bateau Bay PCYC to enquire about boxing lessons. He was noted as having an ISIS flag as a screen saver on his phone. New South Wales Police (NSWPF) file information dated 31 July 2017 notes that whilst Mr Lawrence was in police holdings cell he made a comment to an officer regarding footage that was playing on the television at the time. He stated 'what is that on tv?', 'I think it's about ISIS', 'I love ISIS, I love terrorism'. Whilst under the custody of CSNSW and/or Community Corrections, the following is noted: a. Corrections holdings indicate that during an interview with the Corrections Intelligence Group (CIG), Mr Lawrence reported that the Roman numeral tattoo under his eye ('IV') signified his belief in an 'eye for an eye'. He further offered to the interviewer that it was 'not a Hraiche thing', referencing a high profile incident which had occurred in custody. Mr Lawrence was also arrested wearing an Al-Shabaab Terrorist Organisation t-shirt which was noted in these holdings. In interview with the CIG he reported wearing the t-shirt because it was simply in the vicinity of his lounge room when he was arrested. Mr Lawrence further reported that prior to his arrest he was studying Islam under the guidance of the main Sheikh at the Slacks Creek Mosque in Logan who he named as Sheikh Akram. He reported being referred to this mosque by an individual whom he named. Holdings suggest this individual was a known Al-Qaeda affiliate at the time (IR - 18 - 0553, 09/03/18). b. Mr Lawrence requested permission from his CCO to attend the gym at Gallipoli Mosque, Auburn. He advised her that although he wanted to attend the gym, he did not want to attend the Mosque there because Shiite Muslims predominantly congregate there and as a Salafi, he does not like to associate with them (OIMS case note, 13/09/18). He had earlier informed the CIG that 'Shia are not Muslim' (IR -18- 0553, 09/03/18). c. Collateral information suggests that Mr Lawrence continues to be active in his intention to practice Islam. In further discussion about his religion with his CCO on 27 September 2018, Mr Lawrence disclosed that he 'was bored and spending a lot of time watching YouTube clips and praying - described YouTube clips as Muslim teachings on parenting and marriage' (OIMS case note, 27/09/18). There is no further information available in regards to the content of these videos and/or who they were developed by. d. On 4 September 2018 Mr Lawrence reported to his CCO that he was spending time with ex outlaw motorcycle gang members who were now religious, however appeared conflicted between his alliance to them and his thoughts about their behaviour as Muslims (i.e. indicating they couldn't be Muslim whilst also engaging in OMCG activity). He reported to her that he was studying to be a Sheikh 'as he wanted to help people leave the gang world' (OIMS Case note, 04/09/18). e. Mr Lawrence informed his CCO on 4 October 2018 that he would not be willing to undertake a 'radicalisation' course and did not want to be told his religion was wrong (OIMS case note). f. Mr Lawrence disclosed that he attends the Ahlus Sunnah Wal Jama'ah (ASWJ) mosques, in particular the one located in Auburn. He reported that the main Sheikh was Mohammed Doar. He initially resisted to provide this information to his CCO believing he would be perceived as extremist (OIMS case note 05/11/18). In interview with the author he stated he has also called prayers at ASWJ Auburn, although did not inform of how frequently this occurred. Holdings suggest that ASWJ has links to multiple terrorist offenders in the community. Holdings suggest these centres are known to preach anti-western style and anti-semantic [scil. semitic] teachings as well as being a place of attendance for known persons of interest in regards to extremist violence. However, it remains unknown whether Mr Lawrence himself directly engages with any of these persons. g. According to an OIMS case note dated 12 November 2018, Mr Lawrence informed his CCO that 'the oppression of his people - Muslims who are being killed by the Jews - 'Zionists' in Burma and Palestine places his anger at the highest level. Further he stated 'Hitler should have killed all the Zionists'. On further exploration he detailed that he received photos from friends/lmads (sic) of innocent people being killed by the Jews'. In the same interview, he again denied that he is a terrorist and had nil intention to engage in an act of terrorism. He informed that if he was, he 'would know where to get guns and bombs and could have blown up Parramatta Police Headquarters if he wanted to'. h. Mr Lawrence showed his CCO during the course of an interview, a photo of himself on his phone wearing Islamic clothing making the 'one fingered salute'. He stated to her it was not ISIS but a sign for one God (OIMS case note 18/12/18). i. According to an OIMS case note dated 1 February 2019, Mr Lawrence reported that he was undertaking Islamic studies via the Islamic Online University to become a Sheikh under the guidance of Mr Phillips. Holdings suggest Mr Phillips is an extremist who follows a Salafi doctrine and has been banned in a number of countries including Australia, UK, Denmark, Germany and Kenya for extremist views and encouraging extremist violence (IR - 19-0521, 19/02/19). Mr Lawrence acknowledged he believed people would think this course founder had 'extreme ideas' but he didn't think he was extreme because he didn't offer a 'watered down' version of Islam (clinical interview, 06/02/19). Holdings suggest Mr Philips has been mentioned as a preferred Islamic preacher in mail between inmates who are known for extremist ideologies including a current Extreme High Risk Restricted (EHRR) inmate (IR - 19-0521, 19/02/19). Mr Philips was also reportedly named by the US government as an unindicted co-conspirator in the 1993 World Trade Centre bombing (IR -19-0521,19/02/19). j. According to an OIMS case note dated 22 February 2019 the following is noted in regards to Mr Lawrence: 'laughing as he said it, he reported that he wants to move to a new country - Syria - (no not really) maybe Turkey as the property is cheap or Malaysia. He wants to be a Sheikh has some friends there'. There is no further information to indicate the nature of this friendship or the paucity of his comments about moving overseas; however it is noted that both Turkey and Malaysia are known entry points into Syria and have been used historically for same by Islamic extremists. k. During the course of an interview with his CCO (27/02/19), Mr Lawrence reported that he remains committed to Sharia Law and Jihad; however he abides by the law of the land. He stated that Jihad 'was a struggle or fight against the enemies of Islam and/or internal spiritual struggle against sin'. Despite this, he reported that if he were in an Islamic State and engaged in stealing, he would cut off his hand and that of his family members, including his daughter if she was of age, if they engaged in stealing. He identified that religion is his highest priority and described himself as a Jihadi - Salafi. Of note however, this appears to be the first time Mr Lawrence has linked the perpetration of violence with his religious beliefs. I. In the same interview, he reported listening to a preacher from the United Kingdom (UK) named Abu Haleema. Open source information indicates that Mr Haleema is a Muslim radical activist and extremist preacher with a number of indirect connections with persons who have been implicated in an Australian attempt to enact a terrorism offence. Case notes indicate he further reported that he had been communicating with individuals in custody in the UK 'who are like him have not done anything wrong but are of interest to the government. When questioned how he is speaking to them in custody was evasive and said they may have phones' (OIMS case note). m. Mr Lawrence informed his CCO that a Muslim uprising would take place by 2023 with Islam becoming the dominant world religion. He stated in this circumstance he would be willing to fight in Australia if he needed to. Reported he is in contact with unidentified individuals in the UK whom have informed him of this. He made a broad statement that Australian Muslim individuals don't believe in this ideology. He stated that he is willing to go to gaol for his beliefs (OIMS case note, 13/03/19). Mr Lawrence also informed at this interview that he is trained in the in 'Krav Maga' -an Israeli military self-defence and fighting system developed for the Israel Defence Forces and Israel security forces. The NSWPF information relating to an analysis of Mr Lawrence's Facebook profile completed on 21 February 2019 and 8 March 2019 indicates he has liked and/or shared numerous social media posts/content of relevance within an extremism context (Investigator's note, 18/04/19). The posts uploaded and/or shared were between the timeframe of 4 December 2018 and 6 March 2019. Some of this material includes profile photo uploads of himself posing with the 'one fingered salute'; videos of military style training camps; sharing a video of Muslim child soldiers committing violent Jihad urged by an Australian Muslim preacher; preaching videos by Sheiks known within the terrorism context; advice to others via Facebook comments on the conditions which are permissible to individually call someone 'Kaffir' (disbeliever/infidel) and "make takfir" (theological declaration that a Muslim has become an apostate and therefore violence is sanctioned); photos of the black Shahada flag which has been affiliated with terrorist organisations; posts about book recommendations from a Salafi and Wahhabi perspective pictures militarising Islam, amongst other material. Due to the large volume of information from this Facebook analysis, for further specific details and a full list please refer to Investigators Note dated 18 April 2019 prepared by Detective Senior Constable Lachlan Aston. The NSWPF information notes that on 16 February 2019 Mr Lawrence posted a comment on Facebook referencing to an intention to die as a martyr: 'In sha allah I have set my intentions to learning and teaching the true religion of Allah and dying as a shaheed (translation: a Muslim martyr) this is something I told myself I'm going to do bye the will of Allah...' Most recently and in response to the New Zealand Christchurch terror attack, Mr Lawrence made a number of comments on Facebook in response to a post by another individual the day after the attack. He referenced an 'us and them' attitude ('we are split into 2 groups Muslims or enemies kufr') and further commented 'allah akbar my brother wake up it's a war on Islam my brother be prepared' (Investigators note, 01/05/19).
In addition, the risk intervention report made the following findings which suggest that the defendant's continued alliance with violent extremism may present a serious concern to community safety: Mr Lawrence first began making statements in support of terrorism whilst in juvenile detention in 2014. His religious views and statement in support of violent extremism has increased and continued since. He continues to make statements and engage in behaviour which have elements of an extremist religious ideology and/or espouse support for violent extremist activities which are of serious concern to community safety. This is demonstrated through his association with organised crime groups, access to and use of weapons, propensity for violence, mental health concerns and associated illicit substance use. Should Mr Lawrence be subject to an Extended Supervision Order (ESO), the mitigation of risk would be by intensive community supervision and strict monitoring of his activities in the community. The proposed supervision conditions required to mitigate Mr Lawrence's risk of committing a serious terrorism offence and offences generally are outlined in this report.
The risk intervention report also details the defendant's associations with organised crime groups, escalation of extremist religious views, associations with religious extremists, weapon use and associated violence: Associations with organised crime groups Mr Lawrence's antisocial associates have been a feature in his offending and he has reported having an affiliation with organised crimes groups. A condition of Mr Lawrence's last parole order was that he not contact or communicate with Outlaw Motorcycle Gangs (OMCG) and Organised Criminal Networks (OCN) members or associates without the express approval of his supervising officer. As part of his parole order, additional conditions were added prohibiting him from entering any known OMCG and OCN premises. During an art class in prison on 12 October 2015, Mr Lawrence utilised drawing paper to illustrate words of a known OMCG. Additionally, Mr Lawrence requested that the education officer print an emblem that represents the image of a firearm attached to the name of the OMCG. This behaviour was inconsistent with Mr Lawrence's claims to want to 'start all over' and 'stay away from trouble' in an earlier interview on 25 September 2015. Mr Lawrence was overheard speaking to other inmates on 18 October 2015 stating that he has friends from a well-known outlaw motorcycle gang (OMCG). On 26 November 2015, Mr Lawrence was stopped and spoken to by Police given he was wearing a Bandidos bikie jacket, black shorts and white joggers and a bum bag. He was asked by Police if he was allowed to wear the colours and reportedly replied, 'Yes, I'm a member of the club'. On 31 December 2018, Mr Lawrence told his community corrections officer that he was offered the position of national president of the Mongrel Mob OMCG in Australia. He said he declined the position and made a clean break from gangs. If his claim is true, then this indicates that Mr Lawrence is seen as a leader in this cohort; however there does not appear to be any corroborating evidence to substantiate his claim. Associations with religious extremists and extremist statements During the course of Community Corrections supervision since March 2018, Mr Lawrence's extremist religious views escalated. He reported studying under the guidance of a known international extremist, Abu Ameenah Bilal Philips, through the Islamic Online University. He has reportedly sought out sheiks who preach intolerant and extremist views; and mosques or prayer centres where these views are known to be expressed. Mr Lawrence has made extremist statements to Corrective Services NSW officers, particularly against Jewish people, Zionists, Shia Muslims, and 'Westernised Muslims'. In respect of the latter, he has described them as 'sell outs' who have been 'corrupted by the government'. He views Shia Muslims as 'not Muslim'. Taking into account his propensity for violence, escalation of extremist religious views, and alarming statements made on social media inciting violence, a breach of parole report was prepared. The State Parole Authority (SPA) was satisfied that Mr Lawrence posed a serious and immediate risk to the safety of the community. Mr Lawrence's parole order was revoked on 17 March 2019. His next SPA hearing is on 7 June 2019. As comprehensively outlined in the Risk Assessment Report, Mr Lawrence started making statements in support of terrorism while in juvenile detention in 2014. He has continued to make statements and engage in behaviour which has elements of an extremist religious ideology and/or espoused support for violent extremist activities. Mr Lawrence recently made extremist statements on Facebook in reaction to the Christchurch mosque massacres. Weapon use and associated violence A prominent feature of Mr Lawrence's offending behaviour surrounds his use of violence, weapons and intimidation. Mr Lawrence committed violent offences whilst in residential placements under the care of the State as a juvenile. Such offences involved Mr Lawrence having thrown the contents of a condiment bottle around the living room of the residence; and then placing the condiment bottle on a pile of towels and igniting it. Mr Lawrence intimidated and threatened violence towards a staff member which caused her to hold immediate fears for her safety. While being driven in a company motor vehicle, Mr Lawrence punched the front passenger sun visor 15 times in response to not being allowed to visit a friend. When questioned in relation to being in possession of a 30cm wooden handled knife outside Griffith Police Station on 2 March 2012, Mr Lawrence said he intended to kill a person known to him. During the commission of an aggravated robbery in company on 9 May 2013, Mr Lawrence made an intimidating gesture to which the victim believed him to be in possession of a firearm which caused fear. It is noted an 11 month old child was asleep in the home at the time of the offence. Following a physical confrontation with a group of youths later that same month, Mr Lawrence and his co-accused sought retribution by returning to the location brandishing their weapons towards the group (a baseball bat and replica sword respectively). The opposing group observed this and dispersed in different locations. Mr Lawrence and his co-accused continued to brandish their weapons. This incident took place in full view of large number of members of the public including school children. A large number of people contacted Police as the incident was occurring. On 2 January 2014, Mr Lawrence committed a robbery armed with an offensive weapon. This offence took place at a refuge for young persons which was staffed by a carer. Mr Lawrence possessed a knuckle duster handled flick knife (approximately 8.5cm blade) and held it to the victim's (co-resident's) throat and applied pressure, while threatening the victim by stating 'If you open you fucking mouth I'm going to stab you and your girlfriend'. Mr Lawrence subsequently approached the carer of the refuge and demanded keys to the company motor vehicle. Mr Lawrence subsequently removed the same flick knife and held a cigarette lighter stating 'Give me what I want or I stab someone or I will burn the house down. I will kill someone.' Mr Lawrence threatened the victim by stating 'If you get a cop involved I will kill you and I'll kill everybody in the house before the cops gets there and when the cops get here I will kill them.' Mr Lawrence continued to brandish the knife and threatened to kill himself and 'deal' with the victim. The victim, terrified and fearing he would be injured, handed Mr Lawrence the keys to the company motor vehicle. Mr Lawrence, who was unlicensed, took the motor vehicle. He was subsequently stopped by Police who found the knife used during the commission of the offences in the front passenger seat. On 25 August 2015, while Police Transport Command were patrolling Mount Druitt railway station in plain clothes, Mr Lawrence entered a restricted area of the station which brought him to the attention of Police. It was suspected Mr Lawrence was under the influence of an illegal substance. Immediate enquiries revealed that he may be armed with a knife and may threaten to harm himself and/or others. During a subsequent search of Mr Lawrence's bag, Police located a five inch blade cutting knife that appeared prominent and easy to retrieve. Mr Lawrence has also informed his community corrections officer that he is trained in Krav Maga, a martial art reportedly developed for Israeli Defence Force unarmed combat training. He has previously stated to his community corrections officer that he would know where to obtain guns and bombs; and could have blown up Police headquarters if he wanted to.
After undertaking the evaluative exercise required of the Court under ss 25 and 39 of the Act, I am satisfied that the supporting documentation, if proved, would justify the making of an ESO or a CDO.

The question of jurisdiction

In s 33 in Part 3 of the Act, "current custody" in relation to an eligible offender in respect of whom an application for a CDO is made is defined as "the custody (if any) to which the offender is subject at the time of the application".
In s 19 in Part 2 of the Act, "current custody" in relation to an eligible offender in respect of whom an application for an ESO is made is defined as "the custody to which the offender is subject at the time of the application".
While Mr Robinson accepts that the defendant is an "eligible offender" for the making of an ESO under Part 2 of the Act, and an "eligible offender" for the making of a CDO under Part 3 of the Act (it being conceded that the application by the State in seeking both orders was made in accordance with Parts 2 and 3 of the Act, including that he was "in custody" at the time the original applications were made - that is, at the time of the filing of the Summons), he submitted that on a proper construction of the concept of "current custody" as defined in ss 19 and 33, the Court could not reasonably form the view that the defendant's "current custody" will expire before the final hearing of the Summons, a state of affairs that is a prerequisite for the Court making an ISO under s 27 of the Act and a prerequisite for the making of an IDO under s 41 of the Act.
Section 27, which deals with ISOs, provides: The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Section 41, which deals with IDOs, provides: The Supreme Court may make an order for the interim detention of an eligible offender (called an interim detention order) if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.
It is common ground that the defendant's sentence for the index offences is due to expire on 21 August 2019. It is also common ground that on 30 July 2019 he pleaded guilty and was sentenced in the Local Court to 18 months' imprisonment, with a non-parole period of 9 months, commencing on 30 July 2019 for the offence of stalk/intimidate with intent to cause fear of physical harm (domestic) pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), an offence committed whilst he was on parole for the index offences. That sentence does not expire until February 2021 with the earliest release date 29 April 2020.
Put simply, Mr Robinson submitted that the defendant's "current custody" necessarily includes the sentence imposed on 30 July 2019 and, that being the case, and because the Court could not be of the reasonable view that sentence will expire before the final hearing of the Summons, neither an IDO nor an ISO can be made. The State submitted that, properly construed, "current custody" in each of ss 19 and 33 means the custody referable to the index offences which tethers the application for a CDO and an ESO brought by the State by the filing of the Summons, and that custody will expire well before the final hearing of the Summons, namely on 21 August 2019.
Mr Robinson submitted that in the event that the Court is satisfied that the statutory criteria for the making of either an IDO or an ISO is met (that is, that the Court has jurisdiction under ss 27 and 41 to make the orders), he submitted that the Court should, in the exercise of its discretion, decline to make the orders in circumstances where, because the defendant is in lawful custody for offending other than the index offending and where his earliest release date for that offending is April 2020, the application at this time for interim orders for the defendant's continued detention or supervision is inutile.
Although Mr Robinson conceded that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or a CDO (including his acceptance that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision or kept in detention as provided for in ss 20(d) and 34(d) of the Act), he submitted that since the primary statutory objective in providing for the extended supervision and continuing detention of offenders who pose an unacceptable risk of committing serious terrorism offences is to ensure the safety and protection of the community, the Court would be satisfied that the defendant's current custodial circumstances, and his stated intention not to appeal the sentence imposed on 30 July 2019, are such that he poses no risk to the community at all.
In short, the defendant submitted that the State's application for an ISO or an IDO is premature and, in the exercise of discretion, the application should be refused.

The concept of "current custody"

"Current custody" is defined in identical terms in Parts 2 and 3 of the Act as follows: 19 Definition In this Part: current custody or supervision, in relation to an eligible offender in respect of whom an application for an order is made under this Part, means the custody or supervision to which the offender is subject at the time of the application. 33 Definitions In this Part: current custody, in relation to a detained offender in respect of whom an application for an order is made under this Part, means the custody to which the offender is subject at the time of the application.
The definition of "current custody" in ss 19 and 33 is then deployed in Part 2 of the Act in ss 23(2) and 27(b). Section 23(2) deals with the requirements that need to be met for the making of an ESO and specifies that "an application for an extended supervision order in respect of an eligible offender may not be made until the last 12 months of the offender's current custody or supervision". Section 27 is set out at [49] above.
The definition of "current custody" is also deployed in Part 3 of the Act in s 41 which concerns the making of an ISO. That section (set out at [50] above) mirrors the operation of s 27 which concerns the making of an ISO, save for the fact that s 41 provides expressly for an application being made even if the eligible offender is not in custody at the time of the application such that the only precondition to the making of an IDO is that there are proceedings on foot seeking a CDO. Turner v State of New South Wales [2019] NSWCA 164 makes that clear. In that case the Court held, for the purposes of s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the CHRO Act") (s 18A being in precisely the same terms as s 41), that there is no express condition requiring that the person be in current custody when the IDO is made. The Court was satisfied that construction was consistent with the reasoning in Attorney General for New South Wales v Tillman [2007] NSWCA 119 that there is no temporal mandate limiting the power of the Court to hear and determine an application for an interim order, including a renewed order, except that proceedings for final relief are pending. This is consistent with s 41(a) of the Act such that the Court may make an IDO if it appears to the Court that the offender's current custody "(if any)" will expire before the proceedings are finally determined.

The defendant's submissions

In Mr Robinson's submission, when given their ordinary meaning, the words "current custody" refer to the custody to which an offender is held in detention after being sentenced for a "NSW indictable offence" and at the time the application for interim orders is heard by the Court. In the defendant's submission, the term or concept of "current custody" should not be limited to the detention in custody of an offender that follows the imposition of a sentence of imprisonment for the index offence (that is, the sentence of imprisonment being served for the NSW indictable offence in s 23(1)(a) and ss 33 and 37(1)(a) which grounds the application by the State for an ESO or a CDO), but should include any sentence of imprisonment for a NSW indictable offence that is being served by the defendant at the time the application for interim orders is heard by the Court, whether that sentence was imposed at the same time as the sentence for the index offence or before or after that date.
Applying that construction, Mr Robinson submitted that at the time the Court hears an application for the making of interim orders under s 27 or s 41, the Court is simply to enquire into the earliest date the defendant will be released from custody for any NSW indictable offence for which he or she is serving a sentence of imprisonment at that time and, after making a reasoned assessment of the date by which the proceedings for final orders will be determined, to make a further reasoned assessment as to whether the offender's "current custody" will expire before that date.
Mr Robinson submitted that the interpretation of "current custody" for which he contended is supported by the principles of statutory construction having regard to the context in which the words appear in the Act and when the Act is read as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]. He accepted that the words must also be construed so that they are "consistent with the language and purpose of all the provisions" of the Act and on the prima facie basis that the provisions "are intended to give effect to harmonious goals": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70].
Mr Robinson submitted that ISOs and IDOs are, by definition, "interim" orders; that is, they are intended to ensure the safety and protection of the community while an application for an ESO or a CDO is pending by providing that an eligible offender may either be detained or supervised while the application is pending with the community protected in the interim. Mr Robinson submitted that it would be inconsistent with this objective for the words "current custody" to refer only to the custody directly referable to the sentence being served for the index offences at the time the application was filed (the position advanced by the State), there being no utility in interim orders being made where, at the time of the preliminary hearing, the offender (while an eligible offender for the making of final orders) is a person who is in custody serving a sentence or sentences the expiration of which is some time in the future.
Mr Robinson submitted that it is clear that the legislature intended to make provision for the restriction of a defendant's liberty in advance of a final hearing on the question whether that restriction should be made by a CDO or an ESO, by providing for the making of an interim order where the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a final order (ss 27(b) and 41(b)). He also submitted that it was also clear that the legislation intended that a restriction on an eligible offender's liberty should only be for a short time; that is, where it appears to the Court that, without such an order, the defendant's "current custody" would expire. Mr Robinson also emphasised that an interim order is limited to a period of not more than 28 days (ss 28(1)(a) and 42(1)(a)) subject to extension at the expiration of 28 days, but not to exceed 3 months (ss 28(7) and 42(3)). He submitted that it is unlikely that the legislature intended that interim orders might be suspended for long periods of time after they are made while the defendant is otherwise in lawful custody for unrelated offending, despite there being a statutory mechanism in ss 27(6) and 42(2) for that to occur.
Finally, Mr Robinson advanced the submission that the legislature could have specified that the words "current custody" (as defined) referred only to the custody referable to the sentence for the NSW indictable offence in respect of which the offender was in custody at the time the application was filed (being the index offence, so called) had it wished to do so, but it did not.
Mr Robinson was unable to cite any authority supporting the construction for which he contended. In State of New South Wales v Dunn [2018] NSWSC 1008 N Adams J considered the meaning of "current custody" in s 41 of the Act. Her Honour had to consider whether there was jurisdiction to make the interim orders sought by the State in circumstances where the defendant's sentence for the index offence expired two days after the preliminary hearing and before his sentence for a subsequent offence commenced with that sentence due to expire 12 months later (a set of circumstances not wholly dissimilar from the situation that presents here). It is not apparent from the judgment whether the subsequent offence, which concerned the defendant damaging his prison cell, was "a NSW indictable offence". The parties reached agreement on the meaning of "current custody" to the effect that the Court would not have jurisdiction to make interim orders if they were not made before the sentence for the index offending expired. Her Honour accepted the joint construction of the parties as to the meaning of "current custody" for the purpose of s 41(a) at [150]: At the time of making the IDO I accepted the joint construction of senior counsel as to the meaning of "current custody" for the purpose of s 41(a). It is an available construction. Despite this, I am not persuaded that the question is free from doubt. The definition of "current custody" in s 33 of the THRO Act refers to "custody to which the offender is subject at the time of the application" (emphasis added). The parties agreed that the words "at the time of the application" mean "at the time of the application being made" but the words could also mean "at the time of the application being before the court." That is, the CDO application is ongoing from the time it is commenced until it is determined. This latter construction would allow the Court to make an IDO at any time between the commencement and conclusion of the CDO application provided the defendant's custody was expected to expire prior to the CDO application being determined. This is consistent with the purpose of IDO's, being to ensure that an offender is not released from custody before a CDO can be finally determined in circumstances where the allegations against the defendant, if proved, would demonstrate an unacceptable risk of a serious terrorism offence being carried out.
Mr Robinson submitted that, given the circumstances in which Dunn was decided, including the parties' agreement as to the proper construction of s 41 of the Act and her Honour's expression of doubt as to whether that construction was correct, this Court would not regard Dunn as either binding or persuasive authority. Mr Casselden submitted otherwise. He submitted that although her Honour queried whether the words "at the time of the application" in ss 19 and 33 could also mean "at the time of the application being before the Court" (namely, at the time the Court is being moved for interim orders), that construction is consistent with the State's position that an application for a CDO is extant from the time it is commenced by the filing of the Summons until it is determined, such that the Court may make an IDO at any time between the filing of the application for a CDO and the final determination of that question, provided that the defendant's "current custody" (if any) as it relates to the application is expected to expire prior to the application for the CDO being finally determined.

The State's submissions

In addition to Turner (earlier referred to at [58]), Mr Casselden referred to State of New South Wales v Elmir [2019] NSWSC 263, another case, as with Turner, which concerned the operation of the CHRO Act. Although the definition of "current custody" in the CHRO Act differs to the definition under the present Act, in that it refers to "custody to which the offender is subject at the time the application is made" as distinct from "custody to which an offender is subject at the time of the application", Mr Casselden submitted that both Turner and Elmir were consistent with the construction of ss 19 and 33 which the State advanced, namely that "current custody" is the custody to which the offender is subject at the time of the application" being "custody" (for the index offence) that was "current" at the time the application for a CDO was initiated or commenced.
Mr Casselden submitted that the operation of the Act is anchored temporally to the custody (or supervision) of an offender at the time the proceedings are commenced, as is demonstrated by the following provisions: 1. An application for an ESO may not be made until the last 12 months of the offender's current custody (or supervision): s 23(2). In the case of an application for a CDO, an application may not be made more than 12 months before the end of the offender's total sentence or the expiry of the existing CDO: s 37(2). 2. A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed (or within such further time as the Court may allow): ss 24(4) and 38(4).
Mr Casselden submitted that the concept of "current custody", utilised in both ss 19 and 33 of the Act, should be construed as a reference only to the custody related to the sentence imposed for the index offence, since it is that offence which "anchors" the application by the State both for an IDO (s 41) or an ISO (s 27), and the offence which also "anchors" the application for a CDO and an ESO in turn being the proceedings in the course of which interim orders are sought. He submitted, also by appealing to the established canons of statutory construction, that when read as a whole, the Act positions the index offending as the centrepiece of the statutory regime comprehended by the Act. He also emphasised that an offender's eligibility (or susceptibility) for the making of both an ESO and a CDO on the application of the State is premised on being sentenced for a NSW indictable offence (being the index offending) and that numerous other provisions in the Act make reference to that offence (albeit not by that name), such that a harmonious reading of the Act is only possible when the concept of "current custody" is made referable to the particular index offence the subject of the State's application for final orders under the Act.
Finally, Mr Casselden submitted that the distinction in the Act between "current custody", which is defined in the Act, and "lawful custody", which is not, is also of significance as the following provisions make clear: 1. Section 26(7) provides that "an eligible offender's obligations under an extended supervision order are suspended while the offender is in "lawful custody", whether under this or any other Act or law". 2. Section 28(6) provides that "an interim supervision order, and the eligible offender's obligations under that interim supervision order, are suspended during any period the offender is in "lawful custody", whether under this or any other Act or law". 3. Section 40(3) provides that "an eligible offender's custody under a continuing detention order is suspended while the offender is in "lawful custody" under any other Act or law, but that suspension does not affect the expiry date of the order". 4. Section 42(2) provides that "an eligible offender's custody under an interim detention order is suspended during any period the offender is in lawful custody, whether under this or any other Act or law".

Determination

In my view, it is the distinction between "current custody" and "lawful custody" which signifies that it is the custody referable to the index offence that is the subject of the definition of "current custody" in ss 19 and 33. That same distinction also satisfies me that it is the custody referable to the index offence current as at the time the application is initiated which is the subject of consideration when interim orders are sought, namely whether that custody (if any) will, in the Court's judgment, likely expire before the final proceedings are determined. "Lawful custody", on the other hand, has a distinct and separate meaning. While not defined in the Act, logic dictates it must refer to and include any additional or other sentence for which the defendant might be serving a period of imprisonment at the time the interim orders are made.
I accept the ultimate submission advanced by Mr Casselden that if the legislature intended for the Act to operate in the way contended for by the defendant, it would have provided that the Court may make an IDO or an ISO where it appears to the Court that the offender is in "lawful custody" for any NSW indictable offence, including in "custody" for such an offence at the time of making the interim orders.
Having regard to the operation of the Act, in my view Mr Robinson's submissions would be productive of "disharmony" were they to prevail.

Discretion

I have already undertaken the evaluative exercise of determining whether, according to relevant subheadings in ss 25 and 39, the supporting documentation, if proved, would justify the making of an ESO or a CDO and concluded that it would.
In addressing Mr Robinson's submission that there was simply no utility in making interim orders for the defendant's continuing detention or supervision at this time, Mr Casselden submitted that despite the defendant's current intentions, communicated through his solicitor, that he will not appeal that sentence to the District Court on severity grounds, his instructions could change. I note that the defendant has 28 days under the Crimes (Sentencing Procedure) Act 1999 (NSW) within which to lodge a severity appeal at the expiration of which leave would need to be granted for the appeal to be competent within a further 3 months. Mr Casselden submitted that since there remains at least a degree of uncertainty as to the defendant's attitude to that sentence, that, of itself, would be a sufficient basis for the Court to make the orders in the exercise of its discretion.
Mr Casselden also commended to the Court the observations of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559 and the observations of Rothman J in State of New South Wales v Ceissman [2018] NSWSC 508 at [38]. In Ceissman Rothman J considered that, after concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level, discretionary factors would need to be strong before the Court, at an interim proceeding, would refuse to make an interim order in the exercise of discretion. In relation to the equivalent discretion in the CHRO Act, as Garling J said: … having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, '…to ensure the safety and protection of the community…', it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case.
I note that in Elmir Campbell J made an ISO in circumstances where the defendant's "current custody" was due to expire but where he remained in custody, albeit on remand for a Commonwealth offence as to which his Honour said: Discretion [27] I acknowledge that I have a discretion whether or not to make an interim supervision order notwithstanding the satisfaction of the s 27 conditions. Mr Pickin has submitted that such an order would be futile, basically because it may be expected that Mr Elmir will be serving a sentence for the foreign incursion offence for the foreseeable future given the maximum penalty for such an offence is life imprisonment under the Commonwealth legislation. Until then he will remain in custody on remand. [28] It would be entirely inappropriate for me to second-guess the sentencing judge. There is force in learned counsel's argument but as he acknowledged some recent sentences have been at the lower end, although perhaps those offences did not carry such a severe maximum penalty. But in any event it is impossible for me to say what Davies J will do. I do not have all the evidence that he will have in due course. [29] In my view it is not futile to make the order even though it is likely to be suspended by reason of the defendant's continuation in custody. Moreover it is important that the necessary preliminary steps are followed before the State sentence expires. Acceding to an order now will ensure as well that the matter is ready to proceed to a final hearing with the benefit of expert opinion from Court appointed experts.
I am not satisfied this case should attract the discretion in s 41 in favour of the defendant by the Court declining to make an IDO. I do not regard the fact that he is serving a sentence unrelated to the index offences as a factor which should attract the exercise of discretion or the fact that the orders once made will be suspended whilst the defendant serves the balance of that sentence.
On the assumption that the Court was satisfied that an interim order should be made at this time in the exercise of discretion, Mr Casselden submitted having regard to the seriousness of the defendant's conduct on his release to parole in 2018 (conduct which formed the centrepiece of the parole authority's decision both to revoke parole and to refuse to rescind the revocation order), it would be a sound exercise of the Court's discretion to make an IDO and not an ISO. I accept that submission. In coming to that conclusion I also took into account what Dr Shanahan described as a "single-minded focus on a narrow and literalist interpretation of Islam". It appears that the defendant has been engaged in the following activities: 1. viewing extremist material in his cell in the form of videos, depicting, amongst other things, beheadings, which he appears to revel in describing the acts as 'beautiful'; 2. preparing and training to fight the kuffar (unbelievers); 3. viewing the "Terrorist's Handbook"; 4. referencing the Christchurch shootings as a war on Islam; 5. planning to start an Islamic community or "Islamic state" or "Islamic Brotherhood" in which the laws of Allah will apply including proper appointed punishments (death, lashes); and 6. accessing extremist material online, including lectures by radical Salafists. His online activity in this regard has been prolific and intensified from about December 2018 until his parole was revoked in March 2019.
I also take into account the conclusion reached by the authors of the risk assessment report that the defendant is at a high risk of engaging in extremist violence as I do the views expressed in the report that he appears to hold religiously orientated grievances, has violent ideation, including a willingness to die as a martyr for a religious cause and that he is continuing to seek out and engage in learning extremist beliefs.

Orders

1. Pursuant to s 38(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW): a. I appoint one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations respectively of the defendant and to furnish initial reports to the Court on the result of those examinations; and b. I direct the defendant to attend those examinations.
Pursuant to ss 41 and 42(1) of the Act, the defendant is subject to an interim detention order for a period of 28 days commencing from 22 August 2019.
Pursuant to s 49(1) of the Act, a warrant is to issue for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in Order 2 as required.
Orders 1, 2 and 3 are stayed pending the resolution of the Constitutional issue raised by service of a notice dated 30 July 2019.

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