State of New South Wales v Liddington - [2025] NSWSC 10 - NSWSC 2024 case summary — Zoe

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State of New South Wales v Liddington

[2025] NSWSC 10

Supreme Court of NSW|2024-12-04|Before: Coleman J

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Source facts

Court

Supreme Court of NSW

Decision date

2024-12-04

Before

Coleman J

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

Background to the Defendant

The defendant is 40 years old and presently serving a sentence of two years imprisonment for the offence of affray contrary to s 93C(1) of the Crimes Act 1900 (NSW) and an offence of stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal violence) Act 2007 (NSW) (the "index offences"). The defendant has been in custody since 27 November 2022. The head sentence for the index offences will expire on 3 February 2025. His non-parole period expired on 3 April 2024, however, he remains in custody following the revocation of his parole by this State Parole Authority on 3 April 2024.
The defendant is also serving a 12-month Intensive Corrections Order ("ICO") expiring on 30 May 2025 in respect of a high range PCA drive offence and drive recklessly. He is also serving a 12-month Community Corrections Order ("CCO") also expiring on 30 May 2025 following convictions for two offences of intimidate a police officer. On 3 June 2024. He was sentenced to a two-year ICO commencing on 30 November 2024 and expiring 29 November 2026 in relation to 2 counts of stalk/intimidate.
A Risk Assessment Report ("RAR") was prepared and is in evidence. In that report, the defendant disclosed matters going to his background to the RAR author, Ms Katrina Czerkies. It is not necessary for the purposes of this application to recite all of the details of that background.
In summary, the defendant grew up in a fractured and volatile familial environment. He reported being subjected to physical, emotional and psychological abuse.
The defendant reported that he believes that his early developmental experiences and the lack of a secure and stable home environment directly contributed to his later involvement in extremist right-wing groups (i.e., he never felt that he had a family and joined groups in order to fill that void and experience that sense of family).
The defendant attended formal schooling until year 9. The defendant stated that he was bullied and that he had some behavioural difficulties as a consequence that resulted in his suspension.

[3]

Western Australia

The defendant's criminal history commenced in 2004 in Western Australia when he was approximately 20 years old. His early offences resulted in monetary penalties.
On 4 November 2009, the defendant behaved in a disorderly manner, causing damage to a rear cage door of a police vehicle. The defendant was intoxicated at the time. He was sentenced to three months imprisonment. He was also sentenced to 7 months imprisonment for breaching a suspended sentence and 3 months imprisonment (to be served concurrently) for breaching an intensive supervision order in relation to prior offending.
On 6 November 2009, the defendant entered a café, holding the neck of a broken bottle of Wild Turkey. He approached a café staff member and yelled, "Give me your money, I want your fucking money". The staff member said "I can't. The tills have already been taken". The defendant raised the broken bottle displaying the sharp end of the bottle to the victim and yelled, "I'm serious, give me your fucking money". The defendant threw the bottle at the wall behind the staff and left the café. At the rear of the premises, the defendant threw another bottle at the restaurant window causing it to smash. The defendant was arrested a short time later. When arrested, he stated, "I just want to go back inside (to jail) and see my brother" (at the time, the defendant's young brother Jeremy was remanded in custody on unrelated matters). The defendant entered pleas of guilty to the offence of attempted aggravated armed robbery and of criminal damage on 15 December 2009. On 8 March 2010, the defendant was sentenced in the District Court to terms of imprisonment of 12 months and 4 months (to be served concurrently) respectively.
On 28 November 2008, the defendant was sentenced for unlawful damage. The defendant was also sentenced for offences of criminal damage and threats to destroy, damage, endanger or harm property on 28 October 2009. No official records are available to outline the circumstances of this offending, however the defendant described having attended his father's residence and causing significant property damage.
On 6 June 2011, the defendant committed two offences of disorderly behaviour in public and three offences of damaging property. Police statements of material facts allege the defendant used a PVC pipe to cause damage to a number of vehicles and two stores in a shopping centre. He was observed to have been screaming abuse at numerous people and was covered in blood. The defendant was apprehended by police and transported to hospital. While at the hospital, the defendant was abusive and was continually yelling the phrase "I hate niggers". He also stated, "if you send me back to Bunbury regional with those black cunts I will kill them". He received a fine of $2000 and a suspended sentence of 9 months imprisonment.
On 17 January 2013, the defendant was charged with criminal damage for posting stickers at various train stations and shopping centres in Western Australia which displayed a hooded person giving the 'Nazi salute'. The stickers also contained the statement "support your local skinheads" the website address www.bloodandhonour.com/forum, the email address perth_skins@live.com and a mobile telephone number. The same stickers were also located in the defendant's home along with other items such as a skinhead flag, German flag with swastika, Combat 18 stickers and a White Power flyer. On 6 December 2013 the defendant was fined in relation to the offending at the same time as he was sentenced in relation to further unrelated offending.
On 17 March 2018, the defendant and his brother Jeremy attended the victim's residence.
They requested that the victim fight them, kicked the victims' front security screen with force, broke a window, damaged the letterbox and cursed at the victim. The defendant and his brother also made threats towards the victim after the incident via phone calls and text messages. The defendant was charged with criminal damage or destruction of property and received a fine in relation to the offence and subsequent breach of bail committed on 22 May 2018.

[6]

Circumstances of Index Offending

On 4 December 2021, the defendant was observed approaching the front door of a residence in Arncliffe, with two co-offenders Maxwell Ferrer and Clement Gilbert. The co-offenders were members of the white supremacist group Firm 22, of which the defendant was at the time of sentencing the leader. The premises was the home of Mr Padraic "Paddy" Gibson, a well-known social activist prominent in the Sydney "Black Lives Matter" rallies and other protests relating to Aboriginal causes and other social issues.
One of the men knocked on the front door and asked whether Mr Gibson was home, stating they wanted to have a word with him. Mr Gibson replied "No, Paddy is not here." Mr Gibson observed that the men had shaved heads and one was wearing a T-shirt with the Eureka stockade cross on the front. From these observations he formed the belief that the men were right-wing extremists and began to move away from the door in fear.
At least one of the three men bashed on the door harder than the initial knock. Mr Gibson feared the men were attempting to force entry and that he and his wife would be assaulted. Loud banging continued to come from the door and Mr Gibson heard glass breaking. He rushed to the back of the house, locked the rear security door, and moved to the bedroom with his wife before calling "000".
The defendant, Mr Ferrer, and Mr Gilbert walked away from the premises. When Mr Gibson returned to the front of the house, he saw that the front security screen was torn from the front window and damaged, and that the window had been smashed. He also observed that a table had been overturned and a number of items appeared to have been thrown around.
An investigation was jointly conducted by NSW Police and the Joint Counter Terrorism Taskforce including 3 months of telephone intercepts of the defendant, Mr Ferrer and Mr Gilbert between 24 December 2021 and 10 March 2022. The defendant was charged and arrested on 27 April 2022.
The magistrate found that the defendant took "little responsibility for his actions" and there was no finding of remorse. The magistrate stated that the defendant had demonstrated no insight in relation to "the close connection between his personal beliefs, leadership of a white extremist group and the associated offending". Relevantly, at [54] of the remarks on sentence, the magistrate stated: "There can be no doubt on the facts presented to this Court that Liddington, Ferrer and Gilbert have an understanding, arrangement and agreement they would commit a serious crime war crimes against Padraig Gibson involving intimidation and affray based upon their white extremist right-wing beliefs and their ideological hatred of the political and cultural views of Gibson."
The magistrate found beyond reasonable doubt that the offences "were motivated by hatred for, or prejudice against a group of people to which he believed Mr Gibson belonged". The magistrate found that the defendant had poor prospects of rehabilitation and was not confident he would not reoffend whilst he maintained his extremist beliefs.

[7]

The Intimidation and Driving Offences (H 75887557; 2022/357119)

Until 31 May 2024, the defendant was serving a concurrent sentence of imprisonment for the offences of: 1. Drive with high range PCA, contrary to s 110(5)(a) of the Road Transport Act 2013 (NSW); 2. Two counts of intimidate police officer in execution of duty without inflicting actual bodily harm, contrary to s 60(1) of the Crimes Act 1900 (NSW); and 3. Drive recklessly/furiously or speed in a dangerous manner, contrary to s 117(2) of the Road Transport Act 2013 (NSW).
The defendant was subject to conditional bail for the index offending at the time of committing these offences. The defendant also received convictions pursuant to s 10A in respect of the offences of use unregistered registrable Class C motor vehicle on road contrary to s 68(1) of the Road Transport Act 2013 (NSW) and s 8(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) respectively. He pled guilty to these offences on 22 February 2023.
The defendant was initially sentenced to an aggregate term of imprisonment of 30 months with a non-parole period of 12 months, commencing 31 January 2024. His sentence was due to expire on 30 July 2026. However, on 12 January 2024, the defendant filed a severity appeal in relation to the sentence received for the intimidation and driving offences.
On 31 May 2024, the defendant's severity appeal was successful for the offences of drive with high range PCA and drive recklessly. He was resentenced to an ICO of twelve months' duration commencing from that date, expiring 30 May 2025, and for the two offences of intimidate police officer he was resentenced to a CCO for 12 months from 31 May 2024, expiring 30 May 2025.
On 26 November 2022, the defendant was observed to complete a three point turn as a fully marked police vehicle was exiting Narellan Police Station. He drove towards this police car and collided at low speed with the front of the vehicle, causing damage to the left headlight and panel. The defendant exited his vehicle and approached police. He did so in an aggressive manner, before surrendering when police drew their taser.
The defendant was arrested and taken into custody on this same day. Whilst speaking with police, the defendant stated "I need to go back inside, so I need to do this." The defendant made comments in relation to being a white supremacist with additional comments such as "white power". The defendant made threats of harm towards police, and stated, "I want to punch you, but your [sic] nice", "I honestly just want to rock up and fucking 'pop, 'pop', 'pop' but I didn't because I left my gun at home", "I would like to kick the fuck out of a few of you's [sic]" and "I rammed the cop car for a reason, send me to gaol". The defendant also made gun style hand gestures towards police.
The defendant was breath tested, which returned a positive result of 0.205. The vehicle he was driving was unregistered and uninsured.
It can be concluded that the defendant has a not insignificant criminal history, including for offences of violence and some relating to his extremist beliefs. Many of his offences seem to have been committed when he was affected by alcohol.

[9]

Treatment or rehabilitation initiatives - s 25(3)(f)

A Countering Violent Extremism ("CVE") report was prepared on 17 July 2024 (and will be referred to in more detail below). The defendant has since become eligible for certain programs but due to the imminent expiry of his custodial sentence, it is unlikely he will have time to complete any of those programs. He has not engaged in any offence specific programs. The CVE report indicates that the defendant displayed ambivalence towards participation in intervention programs.
The RAR noted the defendant had engaged in six sessions with corrective services psychologists and had been provided with counselling and psycho education on cognitive beliefs addressing his anger and the fight/flight response. Since August 2024, the defendant has been engaged with the Proactive Assessment and Intervention Service ("PRAXIS") and has expressed a willingness to engage in therapeutic goals including ongoing prosocial community reintegration and intimate relationship assistance. He has disagreed with any need for him to have CVE attention because he claims he has disassociated from historical ideology motivated associations.
In respect to rehabilitative measures undertaken by the defendant, the defendant's counsel also points to the table attached to the Joint Statement of Agreed Facts which details the level of engagement by the defendant with psychology services whilst he has been in custody. That table indicates that the defendant has engaged with Corrective Services psychology services from October 2022 to November 2024. Included in the report are references to the defendant's intentions to, inter alia, stop drinking on his release from custody, retreating from his otherwise documented white supremacist views and the importance of his current partner Ms Fowler in his life. He states an intention to be with her and the fact that she makes him better and support she offers him. His intention as stated to the psychologist not to return to custody but to spend time with her and his children and work as a bricklayer on release.

[10]

Results of psychiatric/psychological and other medical assessments - s 25(3)(b) Risk Assessment Report (RAR)

On 26 July 2024, Ms Katrina Czerkies interviewed the defendant for the purposes of a RAR. On 7 August 2024, Ms Czerkies furnished the completed RAR. Background
Ms Czerkies noted that the defendant has been raised in a "fractured and volatile familial environment" and recognised that his childhood traumas remain "unresolved."
During the interview, the defendant reported that he was first introduced to organised criminal networks and extremist groups when he was incarcerated in 2009. Ms Czerkies stated that the defendant explained that he "related to the rhetoric, having already developed right leaning political views and opinions and as a consequence of his early experiences within the indigenous populus in the areas where he resided."
Ms Czerkies noted that the defendant has an extensive history of alcohol abuse, commencing drinking around 15 years of age with peers. When he was 18 or 19, his drinking became more problematic and began impacting his social functioning by way of an increase in aggression, violence and contact with the criminal justice system. Mr Liddington reported that his consumption of alcohol was a form of emotion and avoidance-based coping and that it has been directly related to his history of criminal and violent offending. The level and frequency of his consumption has fluctuated over time. The author notes that Mr Liddington has a familial history of alcoholism, namely his biological mother and paternal grandfather.
Ms Czerkies also noted the defendant's current relationship with Ms Jenaya Fowler of approximately two years. Diagnosis
Ms Czerkies noted the defendant reported having previously been diagnosed with Posttraumatic Stress Disorder (PTSD). Ms Czerkies opined that based on early developmental experiences and the results of the personality inventory administered for the purposes of the RAR, it is possible that this diagnosis remains appropriate.
Ms Czerkies concluded that the results of the test of personality revealed the presence of a complex personality profile, including traits synonymous with Cluster B and C Personality Disorder. However, Ms Czerkies expressed the view that further assessment and evaluation is recommended. Risk Assessment
Ms Czerkies administered several clinical and offence specific assessment tools. The results of these are discussed below.
The Minnesota Multiphasic Personality Inventory, Version 2 - Restructured Form (MMPI-2-RF) was used to assess a broad range of clinically relevant constructs, including measures of psychological dysfunction such as anxiety, depression, and psychosis, personality features and behavioural traits. The defendant's profile revealed that he experiences clinically significant somatic, emotional, behavioural, and interpersonal difficulties. The defendant endorsed items that identified pervasive anxiety related problems, suicidal ideations and behaviours, poor self-esteem and inferiority and long term social and familial difficulties.
The Violence Risk Scale, Version 2 (VRS-2) was used to assess the defendant's capacity for future violence and superficially the likelihood of general and violent offending. The defendant's risk assessment results placed him at risk 'Level III' which characterises him as being of average risk based on comparisons to a combined sample of 472 adults in institutional settings in Canada and the US. The defendant's identified risk areas include Violent Lifestyle, Criminal Attitudes and Cognitive Distortions, Criminal Peers, Interpersonal Aggression, Emotional Control, Weapon Use, Substance-related Problems, Insight into Violence and Violence Cycle, Impulsivity and Compliance with Supervision. Ms Czerkies opined that Mr Liddington will likely require a moderate intensity treatment directed at his identified criminogenic factors.
The Violent Extremism Risk Assessment - Version 2 Revised ("VERA-2R") was administered for the purposes of understanding the defendant's history of, and pathways towards violent extremism, politically motivated violence or terrorism. Ms Czerkies also sought the assistance of two trained and experienced VERA- 2R users to engage in a process of blind scoring the evidence sheet and participated in a panel on 6 August 2024. The VERA-2R does not provide a numerical score for the ratings and therefore cannot be used to make quantitative estimates (i.e., probabilistic predictions) of violent extremism.
The defendant received high ratings on a number of risk indicators across all risk domains, including perceived grievance and/or justice; seeker, user, or developer of violent extremist materials; personal contact with violent extremists (informal or social context); expressed emotions in response to perceived injustice; network of family and friends involved in violent extremism; violent criminal history; training in extremist ideology in own country or abroad; and organisational skills and access to funding and sources of help.
The defendant received a moderate-high rating for commitment to an ideology that justifies violence, rejection of democratic society and values; and lack of empathy and understanding for those outside one's own group and moderate ratings for dehumanisation of designated targets associated with injustice; expressed intention to commit acts of violent extremism; planning, preparation of acts of violent extremism; and susceptibility to influence, control and indoctrination.
The defendant received low or low-moderate ratings for the remaining risk indicators.
The following Commitment and Motivation Factors which were identified as being highly relevant for Mr Liddington included motivated by camaraderie, group belonging; motivated by moral obligation, moral superiority and motivated by acquisition of status. He was noted to have minimal protective factors.
Multi-Level Guidelines - Version 2 ("MLG-V2") was administered for the purpose of assessing the defendant's risk of engaging in group-based violence. As the MLG-V2 is an aide memoire or checklist designed to assist clinical evaluations it cannot be used to make quantitative estimates (i.e., probabilistic predictions) of group-based violence. Risk factors identified as being highly relevant for the defendant within the context of group-based violence include: 1. Individual Factors: Problems with Anti-Social Orientation, Problems with Relationships, Problems with Mental Health, and Substance Use. 2. Individual-Group Factors: including Strong Group Based Identity, Role or Status in Group Based GBV, Strong Commitment to Group. 3. Group-Societal Factors: including Large in Size or Scope and Operating in an Unstable Environment.
The remaining factors were either omitted or were rated as being of low or moderate relevance.
The Terrorist Radicalisation Assessment Protocol - 18 ("TRAP-18") can be used to assess the defendant's risk of "lone actor" terrorist attacks or targeted extremist violence. The TRAP-18 is not an actuarial measure of violence risk and is not predictive or additive in nature. Ms Czerkies noted she chose to administer this tool given the defendant's assertions that he is no longer affiliated with extremist right-wing groups. The defendant's profile revealed a small number of distal characteristics are currently present, however, 'there is no evidence of any current proximal warning behaviours.' (original emphasis) Risk of Serious Terrorism offence
Ms Czerkies concluded that the defendant is assessed as a 'moderate to high' risk of "violent extremism, politically motivated violence or terrorism".
In making this determination, Ms Czerkies considered: 1. The defendant has an extensive history of violent extremist right-wing ideology and associations as well as establishing and jointly leading an Australian chapter of Firm 22; 2. The defendant received a custodial sentence for a violent offence that was determined to be ideologically motivated; 3. The defendant continues to present with an extremist right-wing ideology and has continued to maintain contact, albeit limited, with his brother Jeremy and Robert Edhouse (including via his current partner); 4. The defendant experiences emotional regulation issues in response to perceived idiosyncratic grievances and injustices; 5. The defendant has not had access to criminogenic or offence specific programs in custody and has therefore not had an opportunity to address his offending behaviour; 6. The defendant has expressed an interest in engaging in interventions relevant to his identified risk, needs and vulnerabilities and recognises that he would require support reintegrating into the community; 7. The defendant has demonstrated disengagement efforts, including a rejection of physical violence as a means to achieve ideological goals. This is demonstrated by the lack of ideologically motivated institutional violence and his expressed disillusionment with his peers and social networks, and "burn out"; and 8. The defendant has a small support system who do not condone the use of violence (i.e., his partner). Risk Scenarios
Ms Czerkies opined that one possible risk scenario is a repeat of the index offence which would most likely occur on the background of no observable changes in his risk profile. In Ms Czerkies view such an act of ideologically motivated violence is most likely to occur within a group-based context and involve verbal aggression and physical violence that is perpetrated against an individual (or group) that is perceived to have brought about or perpetrated physical or reputational harm to an individual of the group or to the group itself.
Ms Czerkies also noted an escalation of the index offence could include the use of a weapon. Ms Czerkies also identified further possible risk scenarios considering alternatives to the index offence may include: 1. Becoming a member of a terrorist organisation. Ms Czerkies notes it will likely be an online affiliation that transitions offline, where Mr Liddington may seek to join or establish a local group. 2. Facilitating an act of ideologically motivated violence that is perpetrated by another member or members of an extremist right-wing group, which Mr Liddington may or may not be affiliated with. This is most likely to occur in circumstances where Mr Liddington is seen as or has become a leader of a group and there is use, dissemination and production of violent extremist right-wing propaganda and rhetoric, expressions of ideologically motivated violent intent and the normalisation of the use of violence to obtain ideological goals or advance an ideological cause that is easily accessible. 3. Engaging in an act of targeted grievance fuelled violence that is perceived to be ideologically motivated. This is most likely to occur as a lone actor event and in the context of interpersonal conflict. It will be an impulsive act of reactive physical violence in response to escalating emotional dysregulation and idiosyncratic grievances. It will be motivated by a perceived responsibility to defend a loved one.
Ms Czerkies identifies the final risk scenario as an improvement in the defendant's presentation and behaviour. This would involve a successful transition to the community, including living with his current partner and acquiring employment with a previous employer. His relationship with his partner would continue to strengthen, as would his relationship with his step- children. He would be in a position, financially and emotionally, to seek reconciliation with his biological daughter and develop an amicable relationship with his ex-partner, engaging external family and legal services and support where required. Mr Liddington would maintain his distance from previously unhelpful peers and establish pro-social supports via his employment and association with recreational sporting organisation or gyms. He would be engaged in relevant and appropriate interventions that aim to assist him to mitigate risks and address identified outstanding treatment needs.
Ms Czerkies opined that the defendant's thoughts and feelings about and towards law enforcement are most likely to be a barrier to successful compliance with a post-sentence order as opposed to having any bearing on future risk. Recommendations
Ms Czerkies opined that should an ESO be made, the defendant would benefit from a joint multiagency and multidisciplinary integrated case management approach to community reintegration. This would include the combined enforcement and case management by the NSW Police High Risk Terrorist Offender Unit ("HTROU") and the CSNSW Community Corrections Terrorism High Risk Offender Unit ("THROU").
Ms Czerkies was of the view that interventions should focus on supporting social and coping skills, managing challenging behaviours and the mitigation of identified risks, needs and vulnerabilities specific to the defendant's risk profile (including violent extremism, politically motivated violence, or terrorism).
The plaintiff submits that the RAR is significant. It was compiled after seven hours of clinical interviews and psychometric testing by Ms Czerkies. The plaintiff noted that Ms Czerkies observed the defendant as having a history of engaging in group-based violence, for which she considered a number of risk factors still existed. The RAR noted that the assessment of lone actor extreme violence or terrorism identified a need for continuous monitoring.
The plaintiff highlights Ms Czerkies observations that the defendant has maintained extremist right-wing ideologies and engaged with extremist groups for almost 16 years. She opined that the defendant continued to experience difficulties in managing his emotions in response to perceived grievances and injustices. The plaintiff also highlighted the risk scenarios identified by Ms Czerkies, including a repeat of the index offence.
The matters pointed to by the plaintiff are an accurate but not comprehensive treatment of the RAR. As I noted in referring to some of the tests administered, they are not suitable to be used as quantitative assessments (that is probabilistic predictors) of the defendant engaging in group violence or terrorist activity. I also observe that in the hearing of the matter, Senior Counsel for the plaintiff accepted (T23.5-34) that the analysis undertaken by Ms Czerkies in the RAR does not engage with whether the particular risk scenarios identified would be accompanied by the required "double intention" (necessary for the State to establish a serious terrorism offence). That is, the analysis does not engage with whether or not if he engaged in any of what the report refers to as acts of terrorism, the defendant would have the intention of either coercing or influencing by intimidation the government or the public or a section of the public. Nevertheless, for the purposes of the preliminary hearing, I regard the RAR and Ms Czerkis conclusions as being of significant weight.

[13]

Criminogenic and Offence Specific Risk Assessment

Ms Cruickshank utilised a number of clinical and criminogenic risk assessment tools. The results of these are discussed below.
The Paulhus Deception Scales (PDS) measures an individual's tendency to give socially desirable responses on self-report instruments. The defendant was administered the PDS on 11 April 2024 and the test was scored and interpreted by Ms Cruickshank. There are two subscales. Impression Management (IM) measures the tendency to give context dependant overly positive responses ("fake good"). Mr Liddington scored within the slightly below average range on this scale. The defendant's scores indicate that he may not generally attempt to portray himself in an overly positive light to others and appears to be relatively aware of his own shortcomings. He may be blunt and direct in interaction style.
The Personality Assessment Inventory ("PAI") is a 344 item self-report psychological inventory designed to assess adjustment and possible psychopathology. The PAI includes extensive measures of validity. The test was administered on the defendant on 11 April 2024 and scored and interpreted Ms Cruikshank. The defendant's responses to items were inconsistent such that test results are likely to be invalid, and as such no further interpretation was appropriate. Inconsistent responding may be due to the defendant failing to attend carefully to items. Ms Cruickshank observed that was unlikely to be due to reading or comprehension problems, as he has been previously assessed to have good literacy skills.
The Depression, Anxiety and Stress Scale ("DASS") is a set of three self-report scales designed to measure the negative emotional states of depression, anxiety, and stress within the week preceding assessment. The defendant was administered the DASS on 11 April 2024 and the test was scored and interpreted by Ms Cruickshank. The defendant scored within the severe range for depression, and extremely severe range for anxiety and stress, suggesting that he was experiencing significant emotional discomfort at and around the time of assessment.
The Planning for Adjustment, Responsivity, Reintegration, Criminogenic Needs and Communication ("PARRCC") was used to assess the defendant's functional needs. The defendant's results placed him in the complex needs category. Ms Cruickshank observed that at this stage in the defendant's sentence, this result recommends a focus on reintegration and criminogenic needs. He should be reinterviewed monthly and have his Case Plan updated every six months. His PARRCC was due to be re-administered in May 2024.
The Level of Service Inventory - Revised ("LSI-R") is an actuarial risk instrument consisting of both static and dynamic risk factors related to general offending. It is used as a predictor of general offending and violence. The defendant scored in the 'Medium' range of risk for general reoffending. Ms Cruickshank noted that the following domains have caused the defendant significant adjustment problems in the community and need to be addressed to manage future risk of general reoffending: family/marital; leisure; alcohol and other drugs; attitude/orientation. Ms Cruickshank observed the defendant's companions and emotional/personal adjustment may have caused some problems in the community.
Ms Cruickshank noted that the LSI-R is not a validated tool to measure risk specific to the context of violent extremism, politically motivated violence or terrorism and should not be used for that purpose.
The defendant was assessed on the Violence Risk Scale ("VRS") and scored in the 'above average' range of risk. Ms Cruickshank opined that individuals in this risk category tend to have multiple criminogenic needs, some of which may be chronic or severe.
Ms Cruickshank noted that the VRS is not a tool to measure risk specific to the context of violent extremism, politically motivated violence or terrorism and should not be used for that purpose. She further noted that sustaining a high VRS score does not equate to being a high risk of ideologically motivated violence.
Ms Cruickshank observed that specific areas of dynamic risk for Mr Liddington include the following: 1. Violent lifestyle; interpersonal aggression; violence during institutionalisation; 2. Criminal attitudes; cognitive distortion; insight into violence; 3. Criminal peers; stability of relationships; 4. Emotional control; substance related problems; violence cycle; 5. Weapon use; and 6. Community support; release to high-risk situations; compliance with supervision.
Ms Cruickshank was also of the view that there was limited evidence of sufficient community supports in place for the defendant to mitigate his primary risk factors. Ms Cruickshank observed that while his partner appears to provide emotional and practical support, there are indications that some aspects of their relationship may in fact elevate his risk if unmanaged. Ms Cruickshank opined that potential stressors include Ms Fowler's ongoing child custody dispute, the defendant's family relationships and ambivalence regarding his alcohol use. The support of the defendant's partner and the possible positive (or negative) impacts that the relationship has (and may have) on the defendant will be discussed further below.
Ms Cruickshank noted that the defendant has a history of poor compliance with supervision and there are currently indications that he may engage in impression management with supervising staff rather than work meaningfully toward his intervention and risk management needs. Ms Cruickshank noted that the defendant's protective factors are limited but may include his strong work ethic and general lack of impulsivity.
VERA-2R was applied to identify relevant intervention targets specific to the context of violent extremism, politically motivated violence and/or terrorism. Ms Cruickshank noted that for the purposes of her report, the VERA-2R has been used to aid in identifying relevant interventions targets specific to the context of violent extremism, politically motivated violence and/or terrorism, noting that the information provided should only be used for the purposes of identifying appropriate program pathways available within CSNSW. Ms Cruickshank observed that the defendant's worldview, self-concept and concept of others appears to contribute to his risk of engaging in violent extremist behaviours. Ms Cruickshank was of the view that he demonstrates a number of personal, political and social grievances towards his victims and towards minority groups in general, and believes he is unjustly targeted by the legal system. His emotional expression related to these grievances can be heightened and sometimes aggressive and threatening towards others. Ms Cruickshank observed that his index offences were partially motivated by "revenge" in the context of grievance and that the defendant presented to have disengaged from white supremacist ideology, however collateral information suggests he may still maintain these beliefs to a significant extent. Ms Cruickshank was of the view that comments the defendant has made suggests he holds few constraints to the use of violence to progress his beliefs including through the use of dehumanising language and lack of empathy towards minority groups. Ms Cruickshank noted that consistent with white supremacist values, the defendant holds attitudes and belonged to groups that reject democratic principles, including intolerance towards the diverse nature of modern Australian society.
Ms Cruickshank observed that the defendant maintains links to a network of others with violent extremist beliefs and that this had also been facilitated by his partner. Ms Cruickshank noted that the defendant has verbalised interest in planning and commissioning future acts of violence related to racial intolerance, however, acknowledged that there is no evidence he has taken action on these statements. Ms Cruickshank noted there is also some susceptibility to influence from others.
Ms Cruickshank opined that the defendant demonstrates the capacity to engage in ideologically motivated violence in a number of key areas. She noted his brother and some friends subscribe to white supremacist ideology, and he has links to others willing to use violence in this context. In her view, the defendant is "well versed in white supremacist ideology and has played roles in leading and influencing others in the past". He has demonstrated sound organisational and leadership skills. These skills have capacity to be protective if directed toward prosocial goals. The Defendant's experience with weapons is unknown, however there appears to be a history of interest in weapons which potentially elevates risk.
Ms Cruickshank noted that while the defendant states that he is more accepting of diverse ethnic groups and rejects extremism and violence, this is inconsistent with his private conversations. Ms Cruickshank was of the view that the defendant's capacity for change is "currently hindered by his ambivalence and lack of insight and motivation". In her view, community supports that could directly mitigate the defendant's risk of general and ideologically motivated violence is limited, though some practical community supports exist such as potential employment and accommodation. She noted that the defendant's current partner and the dynamic of the relationship have both protective and risk increasing aspects. She observed that "At times Ms Fowler has attempted to discourage violence and set boundaries, however at other times, she has been collusive and enabling regarding his extremist beliefs and associations". His partner and her children provide an important source of belonging, acceptance and potential to shift focus from unhelpful activities, but have also been suggested to contribute to stress and problematic alcohol use. This highlights the need for support in these areas.
In Ms Cruickshank's view the available information supports a conclusion that, if the defendant were to engage in problematic behaviours and offending related to violent extremism, he may engage in membership of ideologically-based groups. Ms Cruickshank was of the view that he may hold leadership or other influential positions and have the potential to encourage or incite others to act violently. She noted that he may also engage in violent actions himself including physical violence or intimidation towards others, and/or property damage. This may be targeted towards individuals, minority groups members at random, or during protests. Ms Cruickshank observed that there is no current indication of imminent threat. Ms Cruickshank also noted that the defendant is prone to using violence unrelated to extremist beliefs. She was of the view that his is likely to occur in the context of interpersonal difficulties, which could include threats and intimidation, property damage and direct physical violence towards individuals and that any violent or other unlawful behaviours may be exacerbated by alcohol use.
Ms Cruickshank recommended the following to address the defendant's intervention needs: 1. Mr Liddington should engage with the PRAXIS. Motivational interviewing may be required to assist him to understand the aims of the service and how he may benefit from engagement. The service would include, but would not be limited to, the following areas: emotional regulation; increasing insight into his risk and protective factors; family intervention with Ms Fowler should she consent; and developing and identifying prosocial interests and activities. 2. Attend EQUIPS Aggression and EQUIPS Addiction. 3. Attend Real Understanding of Self-Help (RUSH) to assist with emotional regulation. 4. In custody, Mr Liddington should engage in employment where he does not have influence over others. His associations and behaviours should be closely monitored. Any problem behaviours such as threats and verbal aggression should be appropriately sanctioned rather than tolerated. 5. Refer to the Engagement and Support Program (ESP) in preparation for release from custody. This service can assist with identifying, sourcing and supporting vocational education needs, and provide assistance for tattoo removal should Mr Liddington wish to undergo this procedure. 6. On release Mr Liddington may benefit from more comprehensive mental health assessment, including of post-traumatic and anxiety symptoms. He is likely eligible for Medicare assistance for psychological services and should engage with a professional with expertise in trauma-related intervention. 7. In addition to EQUIPS Addiction, Mr Liddington may need ongoing support regarding management of problem alcohol use in the community. 8. He and his partner may benefit from relationship counselling to strengthen their protective aspects of their partnership.
Again, I regard the CVE and Ms Cruikshank's opinions as being of weight in the current application.

[15]

Other options that might reduce the likelihood of re-offending - s 25(3)(g)

There are other matters which might reduce the likelihood of the defendant re- offending.
The plaintiff refers in the PWS to the intervention recommendations made by Ms Czerkies and Ms Cruikshank in their reports. No doubt, if engaged in, those recommendations would assist in reducing the risk of the likelihood of the defendant reoffending.
The defendant's counsel refers, in my opinion, to additional matters which would assist in reducing the risk of the defendant reoffending. It was submitted that while the question of the defendant's risk of committing a serious terrorism offence is to be assessed on the basis that he is not the subject of the order sought, the Court can consider the relevance and impact of other orders to which he will be subject on his release which may have the potential to reduce the likelihood of his reoffending. Here, the defendant's counsel points to the fact that the defendant will be subject to two ICOs. The last of these ICO's expires on 29 November 2026. By the conditions of the ICO's the defendant will be subject to supervision by Community Corrections. He may be required to participate in programs, treatments or interventions required by Community Corrections concerning his rehabilitation. As the defendant's counsel points out, he would be subject to the imposition of further conditions (or revocation of the ICOs and return to prison) if he breaches the ICOs.
Counsel for the defendant also points to the fact that the defendant will be subject to a WPO and FPO on his release. These orders give police significant powers to stop and search the defendant's vehicle or premises to determine if an offence has been committed.
Counsel for the defendant submits these matters, when assessed realistically, indicate that there will already be in place significant measures for the supervision of the defendant on his release from custody. Counsel also refers to the repeated and ardent expressions by the defendant that he has no desire to return to custody, which desires are consolidated by his age, his present relationship and realistic opportunities for employment.
In reply submissions, the plaintiff accepted the relevance of these orders, however, submitted they did not provide sufficient risk mitigation to warrant refusing the making of an ISO (or ESO) if such orders were otherwise warranted. The plaintiff submitted that the supervision under these orders is manifestly different from that the defendant would be subject to if an ISO is made with the conditions sought. It submitted that under the ICO's the defendant will be supervised by Community Corrections but not by THROU (a branch of Community Corrections) and as part of the multidisciplinary oversight, HRTOU (from the NSW police). Further, it submits the powers of the police under the FPO can only be legitimately exercised to see if there had been an offence under the relevant Act and not more generally. I accept this is the case and whilst relevant, do not consider the presence of the WPO/FPO as a significant protective factors in this case. They are in place for a different purpose, for different reasons and address a different risk to that being considered on this application.
The plaintiff also referred to the comments of Johnson J in State of NSW v Hardy (Final) [2021] NSWSC 900 ('Hardy') where his Honour noted that an ESO (and by extrapolation an ISO) serves an entirely different purpose to an ICO.
I accept that the ICO's do have a different purpose to ISO/ESOs and addressed different risks. In Hardy at [410], Johnson J found that it was important in that case that the ESO operate on its own with respect to that defendant.
In this case, whilst there will be some supervision of the defendant pursuant to the ICO's until 2026, I accept the plaintiff's submissions that the level and nature of supervision under the ICO's is materially different to that sought in the ISO. That is because, at least in part, due to the different risks that the different orders seek to address.
The conditions which would be imposed if an ISO is made are more significant and focused than those under the ICOs that have been made. Additionally, as the plaintiff submits, specialist and dedicated agencies from each of Community Corrections and the NSW Police will be engaged in the supervision of the offender for the specific risks to be managed if the ISO is made.
Nevertheless, the existence of the ICOs and the supervision of the defendant under those orders, together with the consequences to him if he does not comply, as relevant matters in assessing the risk of whether he will commit a serious terrorism offence.

[18]

Ideological, religious, political and social beliefs or commitments: s 25(3)(l)

The defendant has a number of tattoos that are associated with white supremacy and neo-Nazism, including Nazi symbols, the words "White Power", "skinhead", "RAHOWA" (an acronym for "racial holy war"), "Combat 18", "C18" and "Blood and Honour".
On 27 April 2022, a search warrant was executed on the defendant's residence in relation to the index offences. Several items were seized from the defendant's premises, or otherwise located on a USB seized during the search.
The material on the USB drive located in the defendant's bedroom included, but is not limited to footage: 1. Documenting the rise of Adolf Hitler; 2. Depicting the activities of Ultra-nationalists; 3. Of antisemitic/pro Adolf Hitler speeches; 4. Containing Nationalist Ideology; and 5. Of speeches delivered by Adolf Hitler.
On 26 November 2022, NSWPF seized the defendant's mobile phone and on 28 November 2022 conducted a Cellebrite download of materials located on it at that time.
Cellebrite enables reports to be generated which reproduce the content of electronic devices. A report was generated in relation to the defendant's mobile phone.
The material found on the defendant's mobile phone included, but is not limited to: 1. Images containing XRW (extreme right wing) ideology; 2. Images of the defendant, consistent with his role as a performer in an XRW "heavy metal" band; 3. Images of the defendant which are generally consistent with interest in, and support of XRW ideology; 4. Images of persons engaged in XRW groups, including Vinlanders Social Club and Firm 22; 5. Footage containing XRW ideology.
On 4 August 2022 and 5 December 2022, the defendant's Facebook account was screen captured by SC Helena Kadlec. The material found on the defendant's Facebook profile included, but is not limited to: 1. Images of the defendant making a white power hand sign, posted 22 January 2022 and 6 November 2022; 2. References to the death of David Lane, an American Neo-Nazi, posted 8 March 2022; 3. Edited images of the Indigenous flag, such edits being generally consistent with a white nationalist ideology, posted 30 December 2021; 4. References to, and images of, material relating to the Nordic Resistance Movement, a Neo-Nazi organisation based in Sweden, posted 7 December 2021; and 5. Photographs of the defendant in the company of Firm 22 members, posted 23 January 2022.
The defendant has also made a number of statements indicating extremist, white supremacy ideologies. Those statements include, but are not limited to, on 20 March 2019 in a conversation with police, the defendant openly stated, "I'm a white supremacist". The defendant made similar admissions on 3 September 2019 when he was stopped by police. The defendant stated, "I'll be upfront, I'm a white supremacist" and lifted his shirt to display his tattoo "white power".

[20]

Firm 22 / Vinlanders social club

In his report, Dr Droogan described Firm 22 and the Vinlanders's Social Club in the following way: 1. Firm 22 is a name used to represent non-member supporters of the Vinlanders Social Club. The Vinlanders Social Club is an international racist skinhead gang that uses 'Firm 22' as an affiliated broad social club and recruitment pool. The Vinlanders Social Club is recognisable as one of the more prominent and violent racist skinhead groups in the United States over the last 20 years, with a notable history of involvement in violent activities, including several instances of murder. It is characterised by its white supremacist ideology, rooted in a racist and Neo-Nazi skinhead version of Norse (Viking) Odinism. Firm 22 and Vinlanders Social Club sit at the extreme and violent end of the far-right political spectrum.
The agreed facts for sentence of the index offences referred to the defendant as the leader of Firm 22. The defendant has made a number of statements on Offender Telephone System (OTS) calls to his partner Jenaya Fowler. There were a significant number of extracts of these calls in evidence, which include but are not limited to the following: 1. On 9 February 2023 the defendant stated: "that's why we had Firm 22, cause I like the idea of likeminded people sticking together and you know, so we meet up fucking once a month, we get to go out together, talk a bit of smack, that's all it was really about. I said, I moved away from Combat 18 because it was too fucking full on with the rhetoric and shit we don't support swastikas nothing like that, it was just a social network for people with fucking, that's all it was. Not some Nazi gang". 2. On 14 April 2023 Ms Fowler stated: "I said look, I'm telling you now, as it stands, I said like right now, I said there's no Firm 22…" The defendant responded, "Without me there's not" to which Ms Fowler responded, "I said not according to Jeremy, because he's like, leading it now". 3. On 2 August 2023 the defendant stated to Ms Fowler in relation to his brother Jeremy: "Tell him to fuck off, tell him he's got nothing to do with nothing. Fuck me dead. It is always been my club and always will be my club. There's nothing, I don't want him to deal with that shit, I just want, tell him don't even bring that shit up in the house alright?" He went on to say: "That whole Vinlander shit is fucking mine, simple as that and he's not doing nothing with it, simple as that. No don't say nothing, don't say nothing he fucking angers me" and "Tell him to stay out of it. I run the whole crew, I don't know, I don't know".
As noted above a review of the defendant's social media pages conducted in August 2022 revealed the defendant was, at the time, associated with Firm 22 and the Vinlanders Social Club. A Vinlanders Social Club flag was used by the defendant as his cover photo on his Facebook page and images on the Vinlanders/Firm22 Telegram channel contained Australian Firm 22 members including, the defendant.
A number of physical and electronic items demonstrating his use or display of images, symbols and associations linking him to Firm 22/Vinlanders Social club were seized from the defendant's property during the investigation for the index offences on 27 April 2022. This material included, but was not limited to, Firm 22 business cards, an "Aryan Strikeforce" banner, various photographs including one depicting a group of men holding a Combat 18 Australia flag and another in which the defendant has been photographed with a Firm 22 flag, Blood and Honour stickers and various patches and clothing items containing relevant symbols.
Material of a similar nature was located on the defendant's mobile phone after it was seized on 26 November 2022 including images of the Nazi Salute, White Power, Firm 22, the Vinlanders Social Club and videos of the defendant chanting white power.
On 5 June 2022 the defendant attended Pioneer Park and Drifters Wharf in Gosford with a group of men and his partner Jenaya Fowler. The defendant unfolded a large "Vinland" flag while standing with the men near a monument within Pioneer Park. The men stood behind the flag and appeared to have their photo taken by Ms Fowler.
During interviews for the purposes of the RAR and CVE reports, the defendant made various admissions regarding his associations with these various groups. In the RAR, Ms Czerkies notes that the defendant "reported to have previously tried to establish a chapter of Blood and Honour in Australia and more recently, jointly established Firm 22 alongside his brother and an associate."

[29]

Robert Edhouse

Robert Edhouse (previously known by the alias Mathew Collins) is an inmate at Casuarina Prison, a maximum-security prison in Western Australia, and is serving a life sentence for murder.
At the time of the murder Mr Edhouse was the President of the Aryan Nations and he enlisted the assistance of his co-accused, Corey Dymock and David Goddard, both of whom were Aryan Nations members, to murder his partner's former partner by entering his residence while he slept and beating him to death with a hammer. Mr Edhouse's partner, Melony Attwood, was also charged.
Mr Edhouse is also serving concurrent sentences of imprisonment for subsequent offences. On 23 June 2022, he was sentenced for Conspiracy to Commit Indictable (principal) offence to 3 years and 9 months imprisonment. Mr Edhouse conspired with Corey Dymock to extort money from Christopher Podlich due to his perceived involvement with police during their murder investigation. They planned to use the money to obtain firearms and use "guerrilla warfare" techniques to escape from prison.
On 9 February 2024, Mr Edhouse was sentenced for an offence of Incite another person to commit principal indictable offence to 3 years imprisonment. Mr Edhouse intended to extort $10,000 from the family members of Frank Matthias Kurt Berger. Mr Edhouse instructed the defendant to contact a person known as "Polish" and have him make the call to Berger's family to extort the money from them.
Jeremy Liddington introduced Mr Edhouse to the defendant while they were incarcerated together in Western Australia. Between October 2021 and November 2022 at Casuarina Prison, the defendant and Mr Edhouse were in regular contact, sometimes for the purposes of introducing and recruiting new members to Firm 22 and discussions regarding the group and other associations. The defendant would use his partner at the time to book visits as a way to see Mr Edhouse, pass messages and discuss matters not over the phone.
Prior to his current period of incarceration, Mr Edhouse is believed to have created the Australian chapter of Firm 22 with the defendant and Jeremy Liddington and NSW Police have received information that Mr Edhouse still plays a role in running the group despite his incarceration. Mr Edhouse was also a founding member of the Australian chapter of the group Aryan Nations.
Prior to the defendant's arrest in relation to the index offending he maintained contact directly with Mr Edhouse. Since the defendant's arrest he remained in contact with Mr Edhouse up until February 2024, at times using his current partner, Jenaya Fowler, as a conduit.

[33]

Consideration

The plaintiff submits that the facts referred to above demonstrate that the defendant has extensive history of violent extremist right-wing ideology and associations with others who espouse such ideology. Plainly, the material I have referred to makes that submission good. As I have mentioned, the defendant in the DWS (from [56]) acknowledges that there is evidence of "extremist ideology which persists to some extent". He acknowledges he has held those views for around 16 years and has engaged with groups associated with violent extremism or extreme right-wing views for a similar period.
The DWS also acknowledge that he has had associations with Jeffery Liddington, Firm 22 and VSC. However, the defendant submits that in the absence of speculation (or evidence that these associations have escalated or increased in some material way), viewed in context, they are incapable of supporting the plaintiff's contention that there exists an unacceptable risk that the defendant would commit a serious terrorism offence.
The plaintiff does not assert that the Court could find on the material before it that the organisations referred to in Dr Droogan's report were terrorist organisations (see the exchange between the Bench and Senior Counsel for the plaintiff at T 40.30- 46). Rather, the plaintiff submits that there is a risk that they may become terrorist organisations. It submits that if that were the case, then the defendant being associated with those organisations (if they become terrorist organisations) would be apt to enable, support or facilitate the defendant in engaging in a serious terrorism offence. Quite properly, Mr Emmett SC conceded this risk was "attenuated" and involved some speculation. However, I do not consider it is "mere speculation". It is of concern, having regard to his espoused ideologies and of the nature and activities of those groups (and persons), that the defendant remains associated with them. There is evidence in the OTS extracts from which it can be inferred that he intends to continue at least some of those associations. I consider the evidence I have referred to above of those associations places the defendant at greater risk of engaging in violent, extremist behaviour.

[35]

Plaintiff's submissions

Based upon the material put before the Court, the plaintiff submits that on an assessment of the totality of the evidence through the "lens of the plaintiff's case" and taking the evidence at its highest, the Court would be satisfied to the requisite high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if he is not kept under supervision (see s 20(d) of the THRO Act). It submits, the court would be satisfied that the risk is that the defendant could engage in a terrorist act with the necessary intentions required under s 100.1 of the Criminal Code (Cth). That is with both the intention of advancing a political, religious or ideological cause and the intention of influencing by intimidation the government, or intimidation the public or a section of the public.
The plaintiff points to an example of the risk by reference to the index offences. It submits (and I accept) that the intimidation of Mr Gibson was because of, and with the intention of advancing, the defendant's political or ideological causes (antithetical to those of Mr Gibson). It submits that whilst the sentencing magistrate's remarks on sentence do not necessarily establish that the defendant also had the intention of intimidating the public or a section of the public, there was no express finding on this and it should not be excluded as being possible. This, it is said, is relevant to the risk assessment looking forward.
Further, it was submitted that by reason of the defendant's white supremacist ideologies, there is a risk that actions by the defendant in pursuance of those ideologies (for example attending a pro-white protest) could manifest into violence accompanied by the necessary intention to intimidate the public or members of the public. I accept this risk is present, and real.
Additionally, although (as I have referred to above) the plaintiff does not submit that the organisations with which the defendant has associations have been declared terrorist organisations, there is a risk they may become so. The plaintiff also submits that this is an unacceptable risk, especially for VSC, Combat 18, the National Socialist Network and Aryan Nations.
The plaintiff referred to Cheema at [84]-[85] where Johnson J noted that a "serious terrorism offence" covers a broad range of conduct and does not necessarily require an act of violence.
In terms of assessing the risk the defendant poses and that it is unacceptable, the plaintiff: 1. Relies on the assessment in the RAR that the defendant poses a moderate to high risk of violent extremism (referencing his history of violent extremism and association with organisations and others who share the same views); 2. Notes that the defendant is in custody for the index offence which was ideologically motivated; 3. Submits that the defendant continues to present with extreme right-wing ideology. This was the view of each of Ms Czerkies and Ms Cruikshank. This is also reflected in the extracts of the OTS calls. The Court would not accept that he no longer holds these views; 4. Refers to the evidence which, it submits, establishes that the defendant has maintained contact with associates who, and organisations which, hold extremist views. These associations contribute to the relevant risk; 5. Submits that the defendant has not addressed his offending behaviour by therapeutic means; and 6. Submits that the defendant has limited protective factors. Whilst the relationship with Ms Fowler may in one sense be protective, the plaintiff submits it also has the risks I have referenced above.
The plaintiff submits that considered cumulatively, these matters demonstrate that there is a real risk that if left without supervision, the plaintiff could commit a serious terrorism offence. It submits the matters it has referred to, if proved, would justify the making of an ESO.

[36]

Defendant's submissions

The defendant submits that the plaintiff has merely referred to and relied on extracts of the risk assessments. It is submitted that it is speculative to draw the conclusions the plaintiff submits with respect to the defendant posing an unacceptable risk to commit a serious terrorism offence.
The defendant accepts that there exists a risk of association with individuals and organisations with extremist ideology. However, it is submitted that there is insufficient evidence that any such associations will meet the necessary requirements for a terrorist offence.
The defendant accepts that there may be a risk of some future offending (albeit tempered by his relationship with Ms Fowler) but such offending would only occur in the context of interpersonal conflict and alcohol intoxication. Although such offending may have the potential to be informed by the defendant's ideology (for example reactive violence involving someone from a different race or who holds a different political view), the defendant submits that the necessary requirements that the risk of offending be motivated to advance the ideology broadly and committed with the specific intention of influencing government or intimidating the public or a member of the public, is speculative and unsustainable.
The defendant also submits that even if there is a finding of an unacceptable risk there is a residual discretion as to whether to make the order sought. In this case, where there is limited evidence of "significant forethought, planning or sophistication" to the defendant's terror related offending, there are many reasons for the court to refuse to make the order sought. These include that the current sentence is different to past sentences, it has had a significant deterrent effect on him, and this is strengthened by his relationship with Ms Fowler. Further, whilst he has not abandoned his ideology, he reports disillusionment with his previous perception of belonging to such groups.

[37]

Determination

I remind myself of the principles to be applied on this interim application (see [6]-[24] above and the authorities referred to). I must look at the evidence through the lens of the plaintiff and take the evidence at its highest. The test at this stage is not a stringent one and the determination is made to a lower standard than applies to the making of an ESO. I note that there may be an unacceptable risk for the purpose of the test, even if the likelihood of the defendant committing a serious terrorism offence may be low (Kamm at [43]).
Nevertheless, as has been mentioned, the Court should dismiss meritless applications at the preliminary stage. I do not regard this as such an application.
It is plainly, and correctly, accepted by the defendant that all the "necessary preconditions" for the application to be made exist. It is accepted that the defendant maintains ideological views and associations connected with violent extremism. It is really on a very limited basis that the defendant resists the making of the order on the preliminary basis; that being the failure of the plaintiff to prove on the evidence the risk of the defendant having the necessary intentions for a serious terrorism offence.
I accept that on the evidence before me there is no definitive evidence that the defendant has, or has had, each of the necessary intentions. Whilst the defendant says it would be mere speculation to conclude that there is an unacceptable risk in that regard, I consider that on the whole of the evidence and applying the test for the preliminary application, there is such a risk and that this risk is unacceptable.
I accept the plaintiff's submissions that the defendant's continued holding of his extremist views and associations with persons and organisations with similar views gives rise to an unacceptable risk that the defendant could engage in similar conduct to that for the index offence with the intention of intimidating the public or a section of the public in advance of his ideologies. I do not make any finding that the index offence against Mr Gibson was done with that intention, however, in a similar circumstance, having regard to the nature of the conduct involved being ideologically based, I find that there is an unacceptable risk that the defendant would also have the relevant second intention so as to constitute the act being a serious terrorism offence.
I take into account the concessions made by the defendant that there is some risk of future offending, albeit most likely in the context of interpersonal conflict (even if informed by his ideology) and intoxication. I consider, however, that having regard to the RAR and Ms Cruikshank's report, that there is a risk that such ideologically based interpersonal conflict (particularly if the defendant is intoxicated) could progress to him advancing his ideological differences to intimidate any potential victim or the public.
I accept the plaintiff's submissions that whilst none of the groups with which the defendant has had, and maintains, associations are not presently designated as terrorist groups, there is an unacceptable risk that the maintenance of the far right, white supremacist ideologies by those groups may mean they do become designated as such. Further, I accept that the plaintiffs continued holding of such extremist views and his association with such groups means there is an unacceptable risk that this would enable and facilitate the defendant engaging in a serious terrorism offence.
I also consider that the defendant's association with the persons referred to above who hold the same extremist views support the findings I have made. He has maintained contact with them whilst in custody. There is no reason to doubt he will continue to do so when released- indeed extracts from the OTS calls recorded in custody indicate he plans to.
I have not ignored the possible protective factors in favour of the defendant which may reduce or mitigate against any risk. They include his relationship with Ms Fowler, his stated intention not to return to custody and the engagement with Correctives psychology. However, taking into account the Ms Cruikshank that the defendant may have been engaging in impression management, and looking at the evidence as a whole in the context of the preliminary application, those protective factors are not enough to mean that the risk I consider exists is no longer unacceptable.
I also accept that the defendant will be subject to the ICOs on his release from custody until 2026. However, as discussed above, those orders serve a very different purpose to an ESO/ISO. They do not address the risk sought to be addressed in this application. They do not have the defendant supervised by the specialised multi-disciplinary agencies he will be supervised if an ISO/ESO is made. I do not regard those orders being in place as sufficiently protective to mitigate the relevant unacceptable risk I consider exists.
I have not referred to all the material relied on by the plaintiff. I have endeavoured to summarise the salient parts of it. I consider that looking at the evidence cumulatively, I am satisfied that the matters relied upon by the plaintiff would, if proved, justify the making of an ESO. I do not consider any of the matters raised by the defendant going to any residual discretion, would mean orders should not be made. I note that risk avoidance is a significant factor at this preliminary stage.
Accordingly, I am satisfied that the orders sought by the plaintiff should be made.

[52]

Communication, Internet Use & Electronic Devices

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).
The defendant must not access or use, or cause another person to access or use on the defendant's behalf, any of the following items, unless disclosed and approved by their Enforcement Officer: 1. any mobile telephone device; 2. any fixed, landline, or satellite telephone service; 3. any public telephone except in the case of an emergency, provided the defendant contacts their Enforcement Officer as soon as possible after accessing or using such a public telephone; 4. any communication or messaging service including any software, mobile application or hardware that will facilitate that service; 5. any computer or tablet device; 6. any internet service provider account; 7. any electronic mail (email) account; 8. social media accounts; and 9. any websites, applications or computer programs specified by their Enforcement Officer.
The defendant must advise an Enforcement Officer of any change to any of the items listed above as soon as possible.
The defendant must not delete or attempt to delete data on any of the items listed above without the prior consent of their Enforcement Officer.
The defendant must not use any encryption or anti-surveillance system, software or user setting which automatically deletes data, or enables anonymous communication or anonymous user activity, without the approval of an enforcement officer.
The defendant must consent to an Enforcement Officer (or other person requested by an Enforcement Officer) remotely inspecting the items listed above in monitoring compliance with this Order.
The defendant must provide any details of the items listed above (including usernames, passwords, pin codes and pass codes), as directed by their Enforcement Officer.
The defendant must provide consent for their telephone provider, internet service provider and any social media account provider to share information about their accounts with an Enforcement Officer.

Parties

Applicant/Plaintiff:

State of New South Wales

Respondent/Defendant:

Liddington

Legislation Cited (9)

Crimes Act 1900(NSW)

Crimes (Administration of Sentences) Act 1999(NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Criminal Code Act 1995(Cth)

Evidence Act 1995(NSW)

Motor Accidents Compensation Act 1999(NSW)

Road Transport Act 2013(NSW)

Terrorism (High Risk Offenders) Act 2017(NSW)

Crimes (Domestic and Personal violence) Act 2007(NSW)

Cases Cited (10)

Statutory framework & legal principles

In respect to the orders seeking the appointment of the psychiatrist and/or registered psychologists, s 24(5) of the THRO Act provides that if, following a preliminary hearing, the Court is satisfied that the matters in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing such practitioners to conduct an examination of the defendant and provide a report to the Court and direct the defendant to attend those examinations.
In respect of the ISO, s 27 of the THRO Act provides that the Court may make an order for the interim supervision of an eligible offender if, in proceedings for an ESO, it appears to the court: 1. that the defendant's current custody or supervision will expire before the proceedings are determined; and 2. that the matters alleged in the supporting documentation would, if approved, justify the making of an ESO.
If following the preliminary hearing, the court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the court must dismiss the application: s 24(7).
On this application, the plaintiff seeks an ISO for a period of 28 days to commence on 3 February 2025, being the expiry of the defendant's current sentence. It is thus apparent that the defendant's current period of custody will expire before the proceedings for the ESO are determined.
As the plaintiff outlines in its written submissions ("PWS"), the test at the preliminary stage is not a stringent one: State of New South Wales v Lynn [2013] NSW SC1147 at [17]-[18]; State of New South Wales v Manners [2008] NSWSC 1242 at [8].
At the preliminary stage, the determination is made to a lower standard than applies to the making of an ESO under the THRO Act: State of New South Wales v Naaman (No 2) [2018] NSWSC 328 at [17]. On the preliminary application, the court does not weigh up the documentation, resolve any conflicts, inconsistencies or uncertainties which appear in the documentation to predict the ultimate result or to consider what evidence the defendant might call at the final hearing. Rather, the court looks at the allegations and the documentation "through the lens of the plaintiff's case" and takes them "at their highest when deciding whether the test articulated in s 27(b) of the Act has been made good in all of the circumstances of the case": Naaman No 2 [2018] NSWSC 1329 at [48]; New South Wales v Elzamtur [2019] NSWSC 186 at [4].