State of New South Wales v Mustapha - [2022] NSWSC 116 - NSWSC 2022 case summary — Zoe

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State of New South Wales v Mustapha

[2022] NSWSC 116

Supreme Court of NSW|2022-02-14|Before: Adams J, Walton J, Bellew J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-02-14

Before

Adams J, Walton J, Bellew J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

judgment (REvised from ex tempore)

By amended summons filed on 1 February 2022, the State of New South Wales ("the State") seeks an extended supervision order ("ESO") against the defendant, Mr Mejid Mustapha, under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("THRO Act").
The defendant is a 34-year-old man with a history of both general and violent offending. His head sentence of 3 years and 4 months for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018 ("the index offences"), expired on 7 December 2021.
The State initially filed a summons on 7 September 2021 seeking a continuing detention order ("CDO") in relation to the defendant. As required by s 38 of the THRO Act, a preliminary hearing was conducted before Walton J on 12 and 26 November 2021.
The order was opposed by the defendant. It was contended, inter alia, that the Risk Assessment Report ("RAR") required under the THRO Act, did not meet its statutory requirements. On 6 December 2021, Walton J made orders placing the defendant on a 28-day interim detention order ("IDO") and orders appointing a qualified psychiatrist and a registered psychologist to prepare reports about the defendant.
The IDO was then renewed on 16 December 2021 to take effect from 4 January 2022, with a further renewal made on 1 February 2022 to take effect from 2 February 2022.
As a result of the expert evidence contained in the reports ordered by Walton J (from Dr Katie Seidler dated 18 January 2022 and Dr Sathish Dayalan dated 21 January 2022), the State filed the amended summons seeking an ESO in lieu of a CDO.
In submissions filed on 7 February 2022, senior counsel for the defendant indicated that the defendant consents to leave to file the amended summons being granted. Further, the defendant consents to the ESO sought being made upon the conditions in the amended summons. The defendant does not object to the evidence tendered by the plaintiff and does not tender any evidence himself.

[2]

The THRO Act

The objects of the THRO Act are set out in s 3: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage these offenders to undertake rehabilitation.
Part 2 of the THRO Act (ss 19-32) concerns ESOs and Pt 3 of the THRO Act (ss 33-49) concerns CDOs. "Serious terrorism offence" is defined in s 4 of the THRO Act as an offence against Pt 5.3 of the Criminal Code Act 1995 (Cth) for which the maximum penalty of 7 or more years of imprisonment applies. Part 5.3 of the Criminal Code is headed "Terrorism" and contains a number of such offences.
The Court may make an order under the THRO Act in relation to an "eligible offender". An eligible offender is defined under s 7 as a person who is aged 18 years or older and is serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence. A NSW indictable offence is an offence against the law of the State for which proceedings may be taken on indictment (whether or not they may also be taken otherwise than on indictment): s 4(1), THRO Act.
I am satisfied that the defendant is an eligible offender. It was not contended otherwise. He is over 18 years of age and is currently subject to an IDO made after serving a term of 3 years and 4 months in prison for a series of violence and intimidation offences, committed against NSW Police and Corrective Services officers in August 2018.
Section 25(1) of the THRO Act provides that the Court may determine an application for an ESO by either making an ESO or by dismissing the application.
Section 20 of the THRO Act provides that the Court may make an order for an ESO in respect of an eligible offender if: 1. The offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed) - 1. While serving a sentence of imprisonment for a NSW indictable offence, or 2. Under, inter alia, an existing interim detention order; 1. An application is made in accordance with Part 2 of the THRO Act; 2. The Court is satisfied that the offender is (inter alia) a convicted NSW terrorism activity offender; and 3. The Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.

[5]

Third statutory precondition: Is Mr Mustapha a "convicted NSW terrorism activity offender" (s 20(c))?

Section 10 of the THRO Act defines a "convicted NSW terrorism activity offender" as follows: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism."
Under s 100.1 of the Criminal Code (incorporated under s 4(1) of the THRO Act), a terrorist act is defined as an act done or a threat made with the intention of advancing a political, religious or ideological cause by coercing, or influencing by intimidation the government of a state, territory or country, or intimidating the public or a section of the public. The relevant act must be one that causes serious physical harm or death to a person, serious damage to property, endangers the life of a person other than the offender, creates a serious risk to the health or safety of the public or a section of the public or seriously interferes with, disrupts or destroys an electronic system. That definition is broad and encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [187].
The State relies on subs 10(1)(c) in relation to the defendant, read together with s 10(1A)(a)(ii) and (iii) (as clarified during the final hearing before me). That subsection applies regardless of whether or not the offender has been convicted of an offence for the conduct concerned: s 10(2), THRO Act. Thus, it is not necessary for the person to have been convicted of an offence connected with terrorism: State of NSW v Naaman (No 2) [2018] NSWCA 328 ("Naaman") at [22].
Section 10(1A) provides that the following conduct falls within the ambit of subs 10(c): (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.
In determining whether the defendant is a convicted NSW terrorism activity offender under s 10, the Court may have regard to the factors set out in s 11 of the THRO Act. Those considerations are as follows: 11 Determining whether eligible offender is convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender In determining whether an eligible offender is a convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender, the Supreme Court may take into account: (a) the views of the sentencing court at the time the offender was sentenced for the offender's offence, and (b) the views of the sentencing court at the time a person other than the offender was sentenced for an offence if the person was a co-accused of the offender or was convicted of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit the offender's offence, and (c) evidence adduced in the proceedings for the offender's offence or in proceedings against another person for an offence referred to in paragraph (b), and (d) any relevant terrorism intelligence, and (e) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in the State or elsewhere), and any pattern of offending behaviour disclosed by that history, and (f) the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the offender's history of behaviour (including any patterns in, or the progression of, that behaviour to date), and (g) any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody), and (h) any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender's associates and affiliations, and (i) information indicating that current or former associates of the offender have been or are involved in terrorism activities, and (j) any other information that the Court considers relevant.
I am satisfied that the threshold under s 10(1)(c) of the THRO Act has been established based on the supporting documentation.

[6]

Fourth statutory precondition: is the Court satisfied to a high degree of probability that Mr Mustapha poses an unacceptable risk of committing a "serious terrorism offence" if not kept under supervision under an ESO (s 20(d))?

It is this fourth statutory precondition which requires a consideration of the supporting material. The Court may only impose an ESO if it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.
The term "unacceptable risk" is not defined in the THRO Act, although s 21 provides that the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.
In Naaman, the Court of Appeal set out the requirements of s 20(d) at [29]. The phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA). In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
Section 25(2) and (3) set out a number of mandatory considerations to which I must have regard when determining whether or not to make an ESO. Section 25(2) provides that in determining whether or not to make an ESO, the safety of the community "must be the paramount consideration of the Supreme Court." The other mandatory considerations (in addition to any other matter considered relevant) are set out in s 25(3)(a)-(m) as follows: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (h) for an extended supervision order - the likelihood that the offender will comply with the obligations of the extended supervision order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole, or (ii) subject to a control order, or (iii) subject to an extended supervision order or interim supervision order, or (iv) subject to any other order of a court, (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.
It is commonplace that a considerable amount of supporting material is placed before the Court in support of applications under the THRO Act and the CHRO Act. That material is directed at this fourth statutory precondition: the question of unacceptable risk. This then requires such material to be summarised for the purposes of providing reasons. Only one lever arch folder was tendered in support of the present application.
Given the approach of the parties, and the course adopted by Bellew J in Elomar, I do not propose to summarise all of the material before me. I do, however, need to refer to the conclusions of the court-appointed experts and the Risk Assessment Report as well as providing some background in relation to the defendant and his criminal history.

[9]

Criminal history

The defendant's criminal history comprises predominantly violence and drug-related offences, commencing when he was a juvenile. His drug offending has been of a low-level, the defendant having received fines in 2012, 2016 and 2018.
On 5 March 2018, the defendant committed the offence of recklessly inflicting grievous bodily harm upon a male person known to him. This occurred late in the evening at the victim's home, where, after a conversation, he struck him and then kicked him in the head.
On 6 April 2018, the defendant was arrested and charged with the reckless grievous bodily harm offence and released on conditional bail.
On 7 August 2018, the defendant was arrested at his home for breaching his bail conditions for the reckless grievous bodily harm offence. He was conveyed to Parramatta Police Station where he committed a series of offences, the index offences, against police and Corrective Services staff.
When the defendant was asked to remove his hoodie by officers, he became verbally abusive and swore in Arabic, in addition to referring to one of the officers by his Indian race. He then physically assaulted one of the officers and made the following threats: "…I'll fuck you up, you copper dog cunt, if this was Lebanon I would use my AK and shoot you, your family, everyone you know, you're gonna [sic] die copper when I get out of here, you're dead. I'm going to remember your face and hunt you down. You're fucked now, I'm going to get you when I get out of here." [and] "Hey, you with the tattoos, I'm going to remember your face, and when I get out I'm going to cut your fucking head off, cunt. You're going to be on the first Australian ISIS video."
Throughout this course of offending, the defendant's various mobile phones and a computer hard drive were seized and examined by the police. The hard drive was seized from the defendant's home during execution of a search warrant. The circumstances of the location of that hard-drive, together with an overlap in the type of material found on it and on the defendant's mobile phone devices, indicate that the hard-drive and its contents were possessed by the defendant.
Significantly, examination of these devices revealed that, at least from December 2017, the defendant possessed violent extremism material in the form of audio teachings, as well as Islamic State related content (including videos, pictures, audio recordings). Also, according to a Cellebrite examination of the defendant's mobile phone seized from him at the time of his arrest on 7 August 2018, the defendant possessed Nasheed ringtones on his mobile phone in late July 2018.
Further, between at least late July and 7 August 2018, the defendant operated a Facebook account, on which he posted comments, pictures and videos predominantly relating to religious teachings and interpretation and including some violent extremism content. He also operated an Instagram account which included such material.
In December 2018, the defendant was sentenced for the index offences he committed on 7 August 2018, to an aggregate sentence of 3 years and 4 months imprisonment, with a non-parole period expiring on 7 December 2020 and a head sentence expiring on 7 December 2021.
On 10 October 2019, the defendant was convicted and sentenced in the Local Court for the reckless grievous bodily harm offence. He was sentenced to a fixed term of imprisonment commencing on 22 July 2019 and expiring on 21 October 2020.

[10]

Expert evidence

Ms Filipa Abreu, Senior Psychologist provided RAR dated 20 July 2021 for the purposes of commencement of the proceedings. She conducted her assessment on the basis of file information only as the defendant did not consent to take part in the assessment process. She noted his family circumstances, drug and criminal history, behaviour in custody and beliefs and summarised them as follows: "[the defendant] has been identified as an eligible offender under the [THRO Act] for statements and threats of violence he made that suggested he espoused an extremist religious ideology and that he had intentions to engage in an act of violent extremism, politically motivated violence or terrorism. The threats of violence and actual violence he perpetrated has been directed at individuals within authority (i.e. police officers and custodial officers). Mr Mustapha is also reported to have, in custody, authored a letter to the Governor of Parklea Correctional Centre, intelligence staff and his sentencing judge renouncing democracy, affirming Allah as the only law maker, and referencing phrases relevant within a violent extremism context. Mr Mustapha reportedly attributed this behaviour to his use of illicit substances and conflict within his family dynamic leading to emotional distress. There appears to be an element of emotional dysregulation in Mr Mustafa's outbursts and threats of violence which is suggestive that perhaps he uses the extremist violent ideology as a framework for the justification of threats of violence and actual violence perpetrated against others".
Her executive summary also included the following: "Mr Mustafa has historically been assessed as presenting with the medium -high risk of general offending. In the current assessment, Mr Mustafa's risk of violent reoffending has been assessed as high. His risk of engaging in an extremist act of violence, politically motivated violence and or terrorism activity has been assessed as within the moderate-high range. His presentation suggests the presence of an ideology that justifies the use of violence, capacity to undertake violence, a number of underlying motivations and a verbalised intention to use violence."

[11]

Dr Katie Seidler report dated 18 January 2022

Dr Seidler interviewed the defendant by way of audio-visual link ("AVL") on 12 January 2022. Despite some "audio skips" she found the defendant to be pleasant and amicable. She did not consider him to demonstrate overt evidence of significant psychopathological symptomatology. Doctor Seidler noted that the defendant has a history of violent offending primarily directed at authority figures. She noted that although he has never been convicted of a terrorism related offence, he did make statements to victims of the index offences that had racial overtones and made reference to Islamic State. He is also engaged in other behaviours whilst in custody that have raised concern about his ideology and possible affiliations.
Dr Seidler observed that the defendant has not had a period on parole after being released from his first period of imprisonment nor participation in offence- focussed programming. Nor has he demonstrated the capacity to abstain from illicit drug use and manage his anger when at liberty in the community. His family have been a source of stress for him in the past. Dr Seidler suggested that a two-year ESO would be appropriate. She also noted the limitations of risk assessment but used the VERA 2R risk assessment tool which is a violent extremism risk assessment.
Dr Seidler's conclusion was as follows: "In sum[mary], although it is difficult to gauge Mr. Mustapha's personal ideology in any depth, he does express beliefs that may be concerning and which also may support violence for sociopolitical ends. Mr. Mustapha's violence and criminal conduct has been largely reactive and generally impulsive to date and it is unlikely that Mr. Mustafa would engage in any organised or planned act of violent extremism to promote his religious or personal ideology. That being said, it is possible he could be encouraged to become involved in such activity by influential others, who provide him with a sense of acceptance and meaning. in this context it is possible that any such act may reach the threshold to be considered a serious terrorism offence. The most likely scenario is that any future violent act by Mr. Mustapha will be reactive and driven by his emotional state and possibly directed at an authority figure. However, there is enough information to justify some concern about risk for involvement in violent extremism, although this risk is considered less than the risk that Mr Mustapha poses for engaging in a future act of criminal violence that is not motivated ideologically, politically or religiously."
As for the proposed orders, Dr Seidler considered them appropriate in terms of maximising compliance, minimising risk and assisting in his prosocial transition to community living.

[12]

Dr Sathish Dayalan report dated 21 January 2022

Dr Dayalan interviewed the defendant by way of AVL on 13 January 2022. The defendant told him that he was firmly opposed to the idea of engaging in any countering violent extremism programmes. He explained that he got upset by some questions during the assessment to determine his suitability for such programmes. He believes that he is not required to attend such programmes because his offences were not terrorism related.
As with Dr Seidler, Dr Dayalan utilised the VERA 2R violent extremism risk tool. He was of the opinion that the defendant presents with a number of indicators associated with elevated risk of engaging in violent extremism as per that tool. He opined that the defendant's risk of engaging in acts of violent extremism will vary depending upon his circumstances and mental state. The risk of such behaviour would increase in the context of heightened distress due to any perceived injustice. Further, his tendency to interpret interactions in a religiously persecutory manner increases the likelihood of experiencing such perceived injustices. He went on to state the following: "The anti authoritarian attitude and persecutory view of the Australian Government authorities have posed challenges to engaging him in assessments and interventions targeting the risk indicators whilst in custody. On a positive note, there is indication of improvement in his behaviour within the correctional environment in the last 1-2 years in that he has not incurred any charges in there do not appear to be recent acts of aggression. Also, the relationship with his family members is reported to have improved There was no clear indication to suggest imminent risk of Mr Mustafa engaging in acts of terrorism but the fluctuating nature of the risk posed will require close monitoring and supervision over a period of time. Alternative approaches to engaging him in intervention such as utilisation of external psychologists belonging to his religious faith can be trialled. It is noted that he has engaged with an imam in custody but it appears that due to transfer to a different centre, this had not continued. Multi agency approach with collaboration with religious and community leaders would be advocated to improve his engagement."
Dr Dayalan concluded that Mr Mustapha's risk of committing a serious terrorism offence can be managed in the community under an ESO provided the conditions are sufficiently stringent to allow for close monitoring of his activities (including online activities), mental state, any substance use and association with others whilst facilitating engagement in interventions aimed to address the risk indicators of relevance. He found the defendant's refusal to engage in treatment or rehabilitation programmes of some concern. The defendant's prospects of doing so would be better if they were provided by third parties such as a private psychologist or non-governmental organisation. He recommended an ESO of three years' duration

[14]

Conclusion

Having regard to all of the matters I have summarised above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not supervised. In reaching that conclusion, I have given paramount consideration to the safety of the community: s 25(2) of the THRO Act. I have also had regard to the mandatory factors enumerated in s 25(3) of the THRO Act, where relevant. I have already noted, in general terms, the opinions of the court appointed experts as well as the risk assessment and risk management reports prepared in connection with this application by both Corrective Services NSW and a prescribed terrorism intelligence authority.
In addition to the opinions of the court appointed experts, I have had particular regard to the defendant's propensity for violence, the fact that he does not accept the secular law of Australia over religious doctrine and has a strong sense of grievance against those in authority. I have no doubt that he adheres to violent Islamist ideology. I have based this conclusion on his past associates, the fact that he travelled to the Syrian border in 2015, that material was found on his mobile phone that could be described as violent Islamist ideology and his refusal to engage in treatment programs in custody.
Section 29 of the THRO Act provides that I may direct the defendant to comply with such conditions as I consider appropriate. The conditions that I impose must be specifically designed to address issues relevant to the currently identified risk factors in relation to the commission of a serious terrorism offence, rather than general offending. Moreover, such conditions cannot be unjustifiably onerous or simply punitive.
In imposing supervision conditions, the Court must be mindful that it is an offence to breach a condition of an ESO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
I have had regard to the suggested conditions. I am satisfied that they are not unjustifiably onerous or simply punitive. I am also satisfied that they are specifically designed to address issues relevant to the defendant's risk factors in relation to the commission of a serious terrorism offence.

State of New South Wales v Mustapha

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