State of New South Wales v Osman

Supreme Court of NSW|2021-02-16|Before: Harrison J, Wilson J, Honour Wilson J

Judgment

HIS HONOUR: By an amended summons filed in court on 16 February 2021, the State of New South Wales seeks an extended supervision order for a period of three years against Maywand Osman on conditions annexed to the summons pursuant to the Terrorism (High Risk Offenders) Act 2017 ("the Act").
On 19 November 2020, Wilson J made orders pursuant to s 24(5) of the Act appointing a qualified psychiatrist and a registered psychologist to examine Mr Osman: see State of New South Wales v Osman [2020] NSWSC 1646. The medical opinions of the appointed specialists are referred to later in these reasons. Her Honour also made an order pursuant to s 27 of the Act subjecting Mr Osman to an Interim Supervision Order ("ISO") commencing on 22 November 2020. As the result of extensions made since then, the ISO is due to expire on 23 February 2021.
Having regard to the constrained time frame within which I have been required to hear and determine this application, I have limited my consideration in what follows to matters that are of importance to the parties to this litigation. Accordingly, I consider that a familiarity with her Honour Wilson J's reasons for judgment will be of considerable assistance and is assumed for present purposes
Mr Osman was born in December 1993 and is currently 27 years old. He is of Afghan heritage and grew up in Marsfield, a suburb of Sydney. His parents migrated to Australia around 30 years ago. He has a brother who is three years older, Milad bin Ahmad-Shah Al-Ahmadzai ("Milad"). Milad is currently serving a term of imprisonment at the High Risk Management Correctional Centre at Goulburn for a number of serious offences.
Mr Osman's offending history is relevantly as follows.
On 12 September 2012, at the age of 18, Mr Osman was placed on a s 10(1)(b) bond for 18 months on a charge of goods in custody suspected of being stolen. On 8 August 2013, whilst still subject to the bond, Mr Osman was charged with one count of affray contrary to s 93C of the Crimes Act 1900 and one count of recklessly causing grievous bodily harm in company contrary to s 35 of the Crimes Act. The offences arose out of incidents at Macquarie University and Parramatta. Mr Osman was sentenced on 18 November 2016 to a total term of imprisonment of 5 years and 3 months commencing on 23 August 2015 and expiring on 22 November 2020, with a non-parole period of 2 years commencing 23 August 2015 and expiring on 22 August 2017. These are referred to as the index offences. On 5 September 2014, whilst on bail for the index offences, Mr Osman was found in possession of a stolen cheque in the sum of $1,000, and charged with goods in custody, for which he was convicted on 18 June 2015 and fined $400.

Section 25(3)(a)

In accordance with the statutory regime, I have been helpfully informed by the expert opinions provided in this case by Dr Kerri Eagle and Ms Chelsey Dewson.

Dr Eagle

Dr Eagle prepared an extensive and detailed report dated 4 February 2021. It is not possible conveniently or practically to refer to it in full. The following extracts give a helpful and adequate summary of Dr Eagle's opinions: "Scenarios of Increased Risk Mr Osman is at risk of participating in the planning, supporting or organising of a terrorist attack (as defined), in the context of ongoing association with known convicted terrorists and violent extremists. Given his apparent extensive connections with persons associated with violent extremism, he could potentially be a person who disseminates communication between local terrorist leaders and others within the group; organises or facilitates funding for terrorist acts; disseminates propaganda inspiring others to participate in terrorist groups and/or express support within the group for terrorist organisations. His capacity for violence and apparent disregard for legal consequences, would suggest that he is capable of engaging in an act of violence justified by a religious ideology. … Based on my assessment and risk formulation (contained in paragraphs [222] to [230] above), I am of the view that Mr Osman has displayed a number of risk indicators or risk factors that have been associated in the literature with previous known acts of violent extremism and (having regarding to his known history, mental state and presentation) this would suggest that in the context of his ongoing association with convicted terrorists and suspected violent extremists, he is at an increased risk (compared to those who do not have these risk indicators) of intentionally planning or supporting the planning of a terrorist act and which might further include membership or a terrorist organisation, recruiting for a terrorist organisation, providing funds to a terrorist organisation and/or providing support to a terrorist organisation. … Based on the VERA 2R tool, the psychiatric assessment of Mr Osman and the additional available information, Mr Osman displays a number of risk indicators that have been associated with acts of violent extremism. Ratings of high, medium or low are used to indicate if a risk indicator is clearly present, present to a specified level or not present. The ratings do not correlate with any likelihood outcomes (of engaging in acts of violent extremism). The reliability of the rating is subject to the information available and the interpretation of the assessor. Mr Osman has high risk indicators (or clearly present), including personal contact with violent extremists; network of family and friends involved in violent extremism; susceptibility to influence, control or indoctrination; motivated by camaraderie, group belonging; motivated by excitement and adventure; and motivated by acquisition of status. He also has moderate risk indicators (present to a specified level) including a commitment to an ideology that justifies violence; lack of empathy and understanding for those outside one's own group; seeker, suer or developer of violent extremist materials; training in extremist ideology in own country; organisational skills and access to funding and sources of help. Mr Osman has some risk mitigating factors including his participation in programmes against violent extremism (clear or high); support from family members or other important persons for non-violence (some or moderate); and reinterpretation of the ideology (some or moderate). He has a background of violent criminal offending (indicating a capacity to engage in violence) and breaches of supervision. … If Mr Osman continues to associate with known or convicted terrorism offenders and other suspected violent extremists, given his ongoing motivations for status, excitement and camaraderie, and his susceptibility to indoctrination and influence, he is most likely engage in the following conduct that may amount to a serious terrorism offence: (a) Facilitate communication between members of a terrorism organisation or those planning or attempting to plan a terrorist act (for instance, by passing on information between parties through correspondence or otherwise); (b) Collaborate with the organisation of funding or other resources for the planning or facilitation of a terrorist act (by raising funds from his extensive contacts in the community or through correctional facilities); (c) Recruit members of a terrorist organisation (by attending known local facilities as a perceived leader to discuss and promote extreme beliefs; (d) And/or provide support to a terrorist organisation by providing support to the activities of his associates. … Mr Osman's belief in the Islamic faith does not increase his risk. His exposure to the extreme ideology of his influential brother, convicted terrorists and other associates known to hold violent extremist views, increases his susceptibility to indoctrination with extreme religious beliefs that justify the use of violence. His exposure to the propaganda and/or writings of proponents of Islamic extremism would also increase his risk of engaging in a serious terrorism offence. … Mr Osman's ongoing association with his brother, regarding whom he has a clear emotional attachment, is an area of ongoing risk. Mr Osman's ongoing contact with members of his extended family that are living prosocial, purposeful lives are protective and would mitigate his risk, providing positive role models within his own family unit. Mr Osman's parents appear to have remained in contact with Mr Osman's brother and it has been suggested they have facilitated communication between the brothers. There is a further suggestion that Mr Osman's father has destroyed potential evidence, through a letter, and thus possibly colluded with avoiding law enforcement strategies. Overall, the support and regular contact of Mr Osman's parents would be protective and likely to be risk mitigating. Any limitation to contact with Mr Osman's parents would isolate Mr Osman from his main supports and potentially serve as a grievance that might justify disengaging from a prosocial trajectory. … As indicated above, Mr Osman's ongoing exposure to the extreme ideology of those who advocate support for terrorism or violent extremism would significantly increase his risk of engaging in a serious terrorism offence. … The proposed revised conditions attached to the Amended Summons are noted and from a psychiatric and risk management perspective, the conditions appear to be relevant to the main risk indicators. … Mr Osman's risk indicators are unlikely to lesson [sic, lessen] until he is able to demonstrate his successful re-integration into a prosocial community, through social and vocational pursuits; that he has severed ties with former associates supportive of terrorism or violent extremism and substituted those associates with a prosocial network of support; and engaged in a positive, meaningful vocation and lifestyle. The necessary lifestyle changes would need to be maintained alongside a gradual lessening of restrictions. It is likely that this process of re-integration with gradual lessening of restrictions would take several years and a three year ESO would allow for that process to occur."

Ms Dewson

Ms Dewson's report, dated 5 February 2021, is similarly comprehensive. It included the following passages: "111. Risk summary: Taking into consideration the information, Mr Osman is assessed as posing a moderate risk of engaging in violent extremist behaviour. 112. It is my opinion that one of the greatest factors associated with Mr Osman's risk is his exposure to extremist views through his peer networks. His contact with known extremists and his lack of apparent insight into this, suggests that he is susceptible to indoctrination, particularly from his brother (and brother's associates). This would be particularly relevant in the case that he isn't subject to any community-based supervision, where he would presumably be able to associate freely. Although he has reportedly been re-educated on Islam through PRISM engagement, his susceptibility to negative influence is assessed as enduring. The letter from his Mr Al-Ahmadzai to Mr Osman in late 2020, reflects his brother's ongoing motivation to direct, encourage and motivate Mr Osman to adopt his unhelpful views. Although Mr Osman denied being vulnerable to coercion, given that he is in the early stages of change, any influence from his brother during this time may have a destabilizing effect on Mr Osman. Further, Mr Osman does not view his brother as a risk of violent extremism, and he may therefore overlook advice given by his brother. 113. According to Mr Osman, he was introduced to Islam by his brother and his peers, who espoused rigid views based on the Salafi school of thought. As such, Mr Osman appears to have adopted 'rigid' religious views yet denied ever supporting violent jihadism. Mr Osman's accounts that he never adopted said beliefs are, in my mind, difficult to accept, and at very least, he appears to have tolerated the radicalized beliefs espoused by his brother and peers. This is evident by his pervasive contact with other members of the Appleby group and his behaviour during said protracted investigation. 114. Further, Mr Osman presented with sensation-seeking personality traits along with a strong desire for group belonging. This, coupled with the risk noted above, his general antisocial attitudes and history of both instrumental and reactive violence, raises concerns about his trajectory towards violent extremism in the absence of supervision. This would be particularly the case if he fails to establish healthy religious mentors and again seeks out his brother for religious education. 115. In the case that Mr Osman is at liberty without supervision, there is a concern that he may gravitate towards antisocial influences, including those who support violent extremism. In this context, there is a risk that he may engage in a serious terrorism offence, as defined by the act. The most likely scenario would be that he is a member of a terrorist organisation, providing support to other members of said group. This may involve identifying, recruiting and supporting others to engage in terrorism offences or foreign incursion. Mr Osman may himself attempt to engage in foreign incursion, although his action would likely alert authorities before any plan could come to fruition. In a less likely, but potentially more serious scenario, Mr Osman may engage in the act of domestic-based and religiously inspired act of violence. Of concern, is Mr Osman's history of utilizing a vehicle to cause serious harm to person and property. Should Mr Osman decided to commit a terrorist attack, it is possible that he could replicate the method utilized in his index offence (namely using a vehicle as a weapon). Alternatively, he has previously stated the ease at which he could access a weapon and could use this to inflict human casualty. The potential offences noted in relation to these hypothetical scenarios appear to meet the threshold for a 'serious terrorism' offence under the Act. 116. Conclusion and recommendations: On the basis of the current assessment, Mr Osman has been assessed as being a moderate risk of violent recidivism and violent extremist behaviour. It is not disputed that Mr Osman appears to have made positive change whilst in PRISM and his ongoing engagement is encouraging. And whilst it is acknowledged that many of his prior associates are currently incarcerated, there remains a possibility that he may seek contact with radicalized individuals in the community, most likely having been introduced to them through one of his former associates or his brother. A period of ongoing supervision may assist Mr Osman with his transition into the community, assist him in identifying and manage any risks that arise, reduce the risk of him associating with unhelpful people and reducing the risk of committing a serious terrorist offence. In the absence of an order, there is concern that Mr Osman may disengage from professional services and return to either an antisocial or religiously radicalized lifestyle. A period of community-based supervision could assist in mitigating these identified risks. … It is my opinion that [the proposed] conditions are appropriate to assist in mitigating Mr Osman's risks. … Mr Osman would likely also benefit from engagement with the Engagement and Support Program (ESP), should he be assessed as suitable. Ongoing supervision and case management may also support Mr Osman and assist him to live offence free within the community. This would provide him with support to develop a healthy understanding of Islam and to connect with prosocial members of the community who share his faith. It would also be beneficial for Mr Osman to develop greater strategies to deal with interpersonal conflict rather than resorting to violence. It appears that this has been a focus within PRSIM thus far, although his recent offence suggests that he may require ongoing assistance in this regard. This may be through his engagement with ESP, through a CSNSW psychologist or with a private practitioner, specifically one who is experienced working with violent offenders. … A period of three years will assist Mr Osman to transition further through the 'stages of change' and assist with his integration into the community. That being said, these recommendations are not solely based on the restrictive nature of the conditions, but also allow Mr Osman to access the support he requires after a period of incarceration. Regardless of the duration, it would be important for the restrictiveness of the conditions to reduce overtime in response to positive behaviour, intervention engagement and supervision compliance."

Dr Tamara Sweller

Mr Osman participated in approximately seven hours of interviews with Dr Sweller who produced a Risk Assessment Report dated 14 August 2020. Dr Sweller's conclusions and recommendations included the following: "116. Mr Osman is a 26 year old male of Afghan descent, who has reported a lengthy history of undocumented criminal activity. His motivation for engaging in a criminal lifestyle appeared primarily related to thrill-seeking and a desire for attention and status amongst his peers. He reported a decision to distance himself from this lifestyle, which led to commencing religious practice. The easiest route by which to do so was through his brother, who was a practicing Muslim and supported an extremist ideology. Through his brother, Mr Osman became involved with a group of men who similarly espoused this ideology and who held his brother in high esteem. As a result, Mr Osman felt accepted and respected by this group; he may also have gained a sense of excitement and power through his involvement. At a time when he had limited religious knowledge, he was exposed to discussions with an anti-Western sentiment, including those about proscribed terrorist organisations and committing terrorist acts. Mr Osman minimised their influence on his beliefs, which may be an attempt of impression management or may be indicative of a genuine lack of insight into the problematic influence others may have over his worldviews. Whilst he denied allegations that he discussed plans to engage in terrorism activity with his associates, it is possible he engaged in such discussions in order to gain respect and increase his status or acceptance amongst these peers. 117. Mr Osman presents as a somewhat inconsistent historian, or a person seeking to minimise problems or concerns. He appeared to attempt to ingratiate himself with the author. This presentation style is consistent with his acknowledgement at the completion of the current assessment that he felt he could not be entirely open about his past, both with the author and through his engagement with PRISM due to the potential negative consequences. As Mr Osman's primary goal appears to be gaining his release from custody, his level of motivation for meaningful change as opposed to saying the 'right' things remains unknown and untested in a less restrictive environment. Nevertheless, he has maintained his image for an extended period of time despite his most recent lapse, which may reflect genuine motivation. 118. Mr Osman's primary risk indicators are: his network of family and friends who have been convicted of terrorism or national security offences; and relatedly, his access to sources of help and his susceptibility to influence from his peers. Further, his personality characteristics such as acting out behaviours, impulsivity and sensation-seeking may increase his vulnerability to associate with unhelpful influences and engage in ordinary criminal violence. This behaviour could extend to involvement in or facilitation of extremist violence and serious terrorism activity such as funding, sourcing weapons or actual violence. He has the demonstrated capacity to adopt a leadership role or a position of authority, even if it is a function of the influence of others on him. He may be at risk of seeking to travel overseas to engage in foreign incursion or facilitating others' involvement, if encouraged by influences such as his brother or Mr Fayad. Taking into account the risk indicators that were historically relevant for Mr Osman, and there being minimal direct evidence of changes within these risk indicators, his risk of engaging in politically motivated violence, violent extremism or terrorist activity is currently rated in the Moderate-High risk range. The primary circumstances which are likely to escalate this risk relate to his peers and desire for status.
Dr Sweller assessed Mr Osman as having a medium risk of general offending and a moderate risk of violent reoffending. His overall risk profile for extremist violence was assessed to be in the moderate-high range.

Dr Susan Pullman

Dr Pullman interviewed Mr Osman on 19 September 2019 and provided a report dated 2 October 2019. She supplemented her report with one dated 29 May 2020. Her views included the following: "Mr Osman continues to display limited insight into the risks such a relationship [with his brother] poses to his ability to adopt a prosocial lifestyle and to his effective reintegration into the community. The extent to which his parents accept that his brother poses a risk to Mr Osman is unclear. … Update: Despite Mr Osman's view expressed on 19 September 2019, he has demonstrated a capacity to continue to commit violence suggesting he is yet to reject his previous lifestyle. Mr Osman continues to be motivated by status and leadership in antisocial group activities and acknowledged enjoying having control of a group as it earned him respect. There remains a continued risk that Mr Osman is motivated by such a lifestyle. … Update: Mr Osman continued to receive positive support regarding his engagement and participation in the PRSM program up until 11 January 2020. Recent events indicate a regression in Mr Osman's behaviour and willingness to engage in the necessary decision-making problem solving for long term behavioural change. Reports indicate some difficulty with a member of his family regarding the perceived worthiness of the program. It is possible that Mr Osman views the program as a 'means to an end' to be granted parole rather than a program aimed at fostering prosocial beliefs and effective reintegration into the community. It is noted that PRISM staff reported that Mr Osman presents differently to PRISM staff than he does to his family. … … The Addendum to the PRISM report dated 24 February 2020 indicates that although Mr Osman has been making progress, recent events indicated he had regressed in a number of domains including insight into his offending behaviour, insight into his associates and their influence on his personal functioning. Mr Osman remains influenced by others and there remains the risk that he may assist others to engage in violent acts out of a sense of loyalty and status. The extent to which this involvement also includes terrorist acts or violent extremism is less clear. As outlined in my previous report, it is difficult to determine the level or risk given his current expressed views and beliefs which cannot be adequately tested within his current custodial environment. Despite this, Mr Osman has demonstrated a capacity and willingness to engage in violence within a custodial environment which would suggest he has not rejected attitudes and beliefs supporting violence."

Section 25(3)(j) and (k)

The circumstances of the index offence are conveniently and uncontroversially summarised in the State's written submissions, to the following effect.
In August 2013, Mr Osman was a student at Macquarie University, together with Sahil Dalst and Haron Osmany. On 7 August 2013, an altercation broke out between Mr Osman, a co-offender Mustafa Darage and Mr Dalst. Mr Osman and Mr Darage punched Mr Dalst over thirty times. While most of the punches connected with his arms and body, Mr Osman's final punch hit Mr Dalst above his left eye. Mr Osman told him, "Tell Haron he's next", before running from the scene. These facts were the basis of an offence of affray on a Form 1.
Later that day, Mr Osman and Mr Darage arranged to meet Mr Osmany in Parramatta to "sort out some differences between them". Mr Osmany came to the meeting with two associates. Mr Osman attended with "a number of other males … some of whom were armed with baseball bats and poles". Mr Osman threw a punch towards Mr Osmany. One of the men with Mr Osmany fired a small firearm a number of times at the ground. Mr Osman, Mr Darage and their associates then left. The facts gave rise to an offence of affray.
Mr Osman and Mr Darage then drove in Mr Osman's car in search of Mr Osmany and his companions. While travelling past them, Mr Osman said something to Mr Osmany. Mr Osman then accelerated sharply, ran through some red lights and then drove down the wrong side of the road towards Mr Osmany. Mr Osman's car collided with Mr Osmany and threw him several metres. Mr Osman's car then collided with a parked car and a car coming in the opposite direction. Mr Osman and Mr Darage were injured. Mr Osmany suffered numerous injuries, including a shattered tibia in both legs, a shattered femur in the right leg and a dislocated shoulder. These facts give rise to the offence of recklessly causing grievous bodily harm in company.
Mr Osman pleaded guilty to the index offences on the first day of his trial. On 19 November 2016, Judge Sides QC found that each offence was premeditated and not impulsive. His Honour said of the second offence: "He [Mr Osman] clearly drove the car using it as a weapon at the victim and his companions and did so with disregard to public safety."
Having regard to the injuries sustained by Mr Osmany, and other matters, his Honour found the grievous bodily harm offence to be a little below the middle of the range of objective seriousness. At the time of the offences, Mr Osman was subject to a s 10 bond for the earlier conviction for goods in custody.
His Honour found that Mr Osman's poor behaviour at school and in gaol, his breach of the s 10 bond, and breach of bail for the control order offences suggested that he had "a problem with conforming to social norms and expectations including expectations of those in authority". His Honour also noted Mr Osman's problem with controlling his anger on occasions.
Taking into account the family support that was said to be available to Mr Osman, and material suggesting that he had "matured", the Court was satisfied that Mr Osman's prospects of rehabilitation and not reoffending were reasonable.
More recently, on 11 January 2021, Mr Osman was involved in a group assault on an inmate in a kitchen area while in gaol. Although he initially denied his involvement, Mr Osman later agreed he had been involved, noting that the motivating factor was his "sense of status and leadership within the group". Mr Osman also admitted to being calculating in arranging the assault in that he took note of where the cameras were located on the way to the kitchen, saying he "liked having control of the group of boys as it earned him respect". No internal conduct charges were laid against him. Mr Osman has most recently been classified as C1 minimum security.

Section 25(3)(d) and (e)

A Corrective Services NSW "Risk Management Report" dated 4 September 2020 details the extent to which Mr Osman can be reasonably and practicably managed in the community, should an ESO be imposed. The report relevantly refers to risk factors as follows: "Mr Osman also seems torn with regards to the relationship with his brother, as he has made switching comments with regards to wanting to rebuild a relationship with him and not wanting his brother to contact him. There is concern that such traits still seem prevalent despite the interventions Mr Osman has undergone while in custody. These areas will need to be closely monitored with continued therapeutic maintenance if Mr Osman is to return to the community."
Mr Osman has an identified tendency to justify his behaviour and minimise the significance of his offending, including in terms of the explanations offered for institutional misconduct. The report noted that "this particular risk will need to be monitored and challenged if he were supervised in the community. Close scrutiny of the relationship dynamic with his parents, other family members and peers is vital".
Subject to the Court making an ESO and imposing requisite conditions, the risk management plan includes: 1. Mr Osman's proposed accommodation at his parents' home in Marsfield (assessed as suitable); 2. A supervision plan involving weekly in person contact with his "Enforcement Officers" and minimum monthly field visits, monitoring of associations and engagement in treatment for "violent behaviour and risks relating to violent extremism"; 3. A 12-week transition assisted by the PRISM program, post release to assist Mr Osman's reintegration (including linking with the NSW Communities and Justice Engagement and Support Program (ESP)); 4. A weekly schedule of movements to assess and manage the risks associated with movements, activities and associates, and ensure his attendance at relevant activities and appointments; 5. Electronic monitoring to ensure Mr Osman's adherence to his schedule of movements, considered "essential" to managing Mr Osman effectively; 6. The use of travel and place restrictions (managed through electronic monitoring); 7. Conditions enabling enforcement officers to monitor Mr Osman's finances to ensure any suspicious transactions are identified, and that approval is obtained prior to participating in employment, educational courses or volunteer work (given Mr Osman's association risks); 8. Strict conditions concerning "non-association". In this respect the report noted that: "Given the clear risks regarding associations and a susceptibility to be negatively influenced, Community Corrections consider that conditions are required for Mr Osman to notify his Enforcement Officer of any person he is likely to regularly associate with, whether face to face, or by written correspondence or electronic means; or commences an intimate relationship with. He should not contact, attempt to communicate with, or otherwise associate or affiliate with other persons or with organisations advocating support for engaging in any violent extremism or terrorist act. He should also be restricted from contacting, attempting to communicate with, or otherwise associating or affiliating with any person held in custody; or with any person he knows is on parole or otherwise subject to a supervision order without the prior approval of his Enforcement Officer. He should also obtain permission from an Enforcement Officer prior to joining or affiliating with any club or organisation." 1. Firearms and weapon prohibition conditions, given Mr Osman's "capacity to use improvised means to inflict violence when he used a motor vehicle to inflict serious injury on a victim", as well as a requirement as to approval for Mr Osman's use of vehicles; 2. A series of restrictions relating to Mr Osman's use of electronic communications and internet access, given his susceptibility to influence, history of forming negative associations and issues relating to impulsivity; 3. Search and seizure conditions; 4. Given Mr Osman's history of violent extremist associations, conditions prohibiting Mr Osman from engaging in any act or attempting to influence others to engage in any act that would provide support for or promote extremist ideologies or acts of violence; 5. Restrictions as to Mr Osman's change of appearance or form of identity; and 6. Conditions requiring Mr Osman to undergo psychological or psychiatric counselling as directed (among others concerning psychological and psychiatric assessment, counselling and medical treatment).
Mr Osman indicated to the authors of the report that he "agreed with the recommended parole conditions and proposed management plans".

Section 25(3)(h)

Mr Osman is considered to engage in behaviour that pushed boundaries and that this amounted to a vulnerability likely to increase his likelihood of violating conditions that may be imposed upon him.

Section 25(3)(i)

Mr Osman breached the terms of an ICO imposed on 17 December 2014 within days of it coming into effect. The sentencing judge considered that his behaviour, and the fact that he was on bail at the time of the breaches, showed "a clear lack of insight into his obligations both as a person on bail and a person subject to a control order". His Honour considered that Mr Osman had "deliberately thumb[ed] his nose at the control order and the authorities who imposed it".
When he was subject to the ISO, Mr Osman received two warnings for breaching conditions relating to having an overnight visitor and electronic communication. These breaches were minor in the overall scheme of the control regime.

Section 25(3)(l)

Mr Osman is a Sunni Muslim who identifies as Salafi. His initial commitment to Islam apparently occurred at the age of 19, significantly and perhaps predictably when housed at the HRMCC at Goulburn. He reported increasing his general level of religious knowledge at that time and openly volunteered that his religious influences were "AA" classification offenders convicted of national security offences. Mr Osman disclosed to psychologists associated with the PRISM service that he was exposed to a range of hostile anti-government attitudes and general discussions regarding proscribed terrorist organisations such as Al-Qaeda and so-called Islamic State while he was housed at Goulburn.

Section 25(3)(m)

On a number of occasions in 2014, in the course of Operation Appleby, the police intercepted telephone calls between Mr Osman and a series of individuals who were then or who have since been involved in or convicted of terrorism offences. These past associations are extensive and have been similarly documented. Concerns about the possible revival of these associations are at the heart of the current application by the State for the imposition of an extended supervision order.

Consideration

Mr Osman, by his counsel in both written submissions and orally, made what I consider to be an appropriate and uncontroversial concession having regard to the evidence in this case that it is open to me to find that he poses an unacceptable risk of committing a serious terrorism offence. He also indicated that the primary issue in dispute was the terms of any conditions that may be attached to any extended supervision that may be imposed. Mr Osman's concession does not, and cannot, displace the statutory precondition that before I am able to make an extended supervision order I must be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.
The primary object of the Act is relevantly to provide for the extended supervision of offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. It remains important, however, if such an order is made, that in imposing conditions the Court needs to strike a balance between the competing considerations of community interests and personal liberty: conditions must not be unjustifiably onerous or punitive and should be as unobtrusive as possible.

Unacceptable risk etc

Having regard to the evidence before me, I am satisfied to a high degree of probability that Mr Osman poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. The professional medical opinion in this case speaks with one voice. Even though Mr Osman has not committed a terrorism offence, or demonstrated a current inclination or tendency to do so, Mr Osman has what might be considered to be a well-documented history of associations with people who have. That may in many circumstances be considered to be of no particular significance. However, in Mr Osman's case, the evidence suggests that his personality and predispositions are such that he is, or at least may be, particularly vulnerable to the influences of such individuals. It is unfortunate in this regard that one such person is Mr Osman's brother with whom he might understandably be expected to have or to want to cultivate an ongoing filial relationship.
Although not referred to by the experts in these terms, I glean from the several professional opinions expressed that Mr Osman is easily led, and has a desire to be seen by his peers as deserving or worthy of respect and admiration. He appears to yearn for status and recognition within group settings. These are not characteristics that are of themselves dangerous or problematic. Nor are they characteristics for which Mr Osman should be criticised or condemned. However, for better or worse, Mr Osman has an historical connection with the group of offenders identified in the course of Operation Appleby whose potential ability to influence Mr Osman and to exploit his vulnerabilities remains a matter of serious concern.
The authorities are replete with detailed consideration and assessment of the concepts of "high degree of probability" and "unacceptable risk". My assessment of the first of these must necessarily be informed by the expert opinions with which I have been provided. In this respect I should observe that I was significantly assisted by the written opinions and oral evidence of each of the court appointed experts. Both were cross-examined but not to the point, nor apparently with the purpose, of causing them substantially to resile from or amend their views. By way of example, Dr Eagle has opined that Mr Osman has some high risk indicators as well as some risk mitigating factors. On balance she was of the view that Mr Osman remains at risk of committing a serious terrorism offence unless kept under supervision.
I consider that there is a low to moderate risk of Mr Osman committing a serious terrorism offence if not kept under supervision. However, and importantly, the catastrophic consequences of the materialisation of that risk lead me to conclude that whatever may be the accurate quantification or assessment of the risk, it remains wholly unacceptable. I am therefore satisfied, to a high degree of probability, that Mr Osman poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision. I consider that the risk is clearly unacceptable when regard is had to the subject matter of that risk, being the commission of a serious terrorism offence, considered in the context of the primary purpose of the Act.

Conditions

I have been provided with competing submissions concerning the Conditions that should be imposed upon Mr Osman in the event that an Extended Supervision Order is made. I have taken careful note of these views in coming to my conclusions about the conditions that should apply.
The authorities make it clear, and the evidence before me specifically supported the fact, that a common sense approach must be taken to both the formulation and enforcement of appropriate conditions. Conditions that are too restrictive may operate counterproductively by imperilling the development of an harmonious working relationship between Mr Osman and any enforcement officers with whom he is required to work. It would clearly be both counterproductive and potentially unfair if conditions were imposed that operated in a way that exposed a person such as Mr Osman to the highly likely, if not inevitable, prospect of failure. It is critically important for Mr Osman, and anyone in his position, that the choice of, and the monitoring of compliance with, conditions attaching to an extended supervision order should not inadvertently increase the chances of non-compliance and hence failure. On the other hand, the statutory paramountcy of the protection of the community requires the maintenance of an ongoing scheme that ensures that a person such as Mr Osman can be monitored and directed in a way that as far as possible provides enforcement officers with sufficient notice and information to foresee and act upon problems before they arise.
In attempting to strike a balance between these matters, I have modified the conditions for which the State contends but not as much as Mr Osman has suggested.

Term of the order

Both Dr Eagle and Ms Dewson consider that a three-year extended supervision order will assist Mr Osman to transition further through "stages of change" and assist with his integration into the community. Ms Dewson considers that it would be important for the restrictiveness of the conditions to reduce over time in response to positive behaviour, intervention engagement and supervision compliance. Mr Osman has submitted that a review of the OIMS material provides little comfort that such a graduated change will take place in the absence of a set of orders reflecting such a graduation. He contended that the Crown's proposed orders, before the amendments made by me, make no such concession and that an alternative to a graduated set of conditions would be a reduction of the term from three years to a shorter period.
I consider that the proposal for a three year term has merit in this case, particularly having regard to the modifications I have made to the conditions. A close analysis of the conditions suggests that, subject to a settling in period, the otherwise apparently onerous and intrusive nature of the conditions is less than appears at first sight and will in any event be likely to recede in practice over time. Mr Osman has shown a commendable recent ability, as evidenced by the history of SMS communication between him and enforcement officer Stela Ilijevska, to conform to the conditions recently imposed. On the basis of that material, I suspect strongly that such compliance by him is likely to continue.

Orders and directions

I make the following orders: 1. Order that Maywand Osman be subject to an Extended Supervision Order for a period of 3 years from 23 February 2021, subject to the conditions in the Schedule to these reasons. 2. Direct Maywand Osman to comply with the conditions set out in the Schedule to these reasons for the period of the Extended Supervision Order.

    SCHEDULE
    CONDITIONS OF SUPERVISION
    MAYWAND OSMAN
    Note: (p) indicates those prescribed conditions listed in s. 29(1A) of the Terrorism (High Risk Offenders) Act 2017
    PART A: SUPERVISION, MOVEMENTS & REPORTING
    1 The defendant must submit to the supervision and guidance of any enforcement officer responsible for his supervision for the time being and obey all reasonable directions of an enforcement officer (including, if reasonably required, the provision of a schedule of movements). (p)
    2 The defendant must be available for interview at such times and places as an enforcement officer (or the officer's nominee) may reasonably direct from time to time. (p)
    3 The defendant must truthfully answer questions from an Enforcement Officer for the purpose of administrating this order about:
            (i) where he is or has been;
            (ii) where he is going or was going;
            (iii) who he is with or was with; and
            (iv) what he is doing or was doing.
    4 The defendant must carry a specified approved mobile phone at all times and:
            (i) ensure that he is available to answer any call from an Enforcement Officer or, as soon as reasonably practicable, return a call that he was unable to answer; and
            (ii) comply with any reasonable directions given by an Enforcement Officer in relation to the mobile phone.
    PART B: VEHICLES
    5 The defendant must not purchase, hire or drive any vehicle without the prior approval of an Enforcement Officer.
    6 The defendant must tell an Enforcement Officer of the colour, make, model and registration of any vehicle registered in his name or which he intends to hire or drive.
    PART C: FINANCIAL OVERSIGHT
    7 The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by an Enforcement Officer.
    8 The defendant must not enter into a transaction for any amount exceeding $500, including through an agent or third party, without informing an Enforcement Officer.
    9 The defendant must not transfer any funds outside Australia without informing an Enforcement Officer.
    PART D: ELECTRONIC MONITORING
    10 The defendant if required must wear electronic monitoring equipment as directed and not tamper with it or remove it. (p)
    PART E: ACCOMMODATION
    11 The defendant must live at an address approved by an Enforcement Officer and notify an enforcement officer of any intention to change his address or living arrangements. (p)
    12 The defendant must permit an Enforcement Officer to visit him at his residential address at any time he is there and, for that purpose, to enter the premises at that address. (p)
    13 The defendant must be at his approved address between 10.00pm and 6.00am unless other arrangements are approved by an Enforcement Officer.
    14 The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of an Enforcement Officer. The defendant may submit a list of people to an Enforcement Officer for prior approval. The defendant is not required to seek approval for the attendance of any person on a pre-approved list. If another person that the defendant is approved to reside with permits a third party who does not reside at the address to enter and remain, or to stay overnight, the defendant must notify an Enforcement Officer as soon as he becomes aware of such third party's presence in the home.
    15 The defendant must not sign any lease, mortgage or hire agreement (e.g. storage facilities) without prior approval of an Enforcement Officer.
    PART F: PLACE & TRAVEL RESTRICTIONS
    16 The defendant must not frequent or visit any place or district specified in writing by an Enforcement Officer who believes on reasonable grounds that the place will increase the defendant's risk of committing a serious terrorism offence or of otherwise failing to comply with another condition of this order. (p)
    17 The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services. (p)
    18 The defendant must not be in possession of any passports and must not attempt to apply for any passports. The defendant must surrender any of his passports to an Enforcement Officer as soon as practicable upon entering into this Order.
    19 In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports or any other point of departure for an international destination, with the exception of Sydney Cove Passenger Terminal, except for the purpose of reporting to an Enforcement Officer as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, attending upon other government services including court proceedings he is required to attend and legal appointments in accordance with his approved schedule or as directed, or if otherwise approved by his Enforcement Officer. If requested by the defendant, an Enforcement Officer is to provide a map setting out the 1km radius from any point of departure in the Sydney Metropolitan area to which this restriction applies.
    PART G: SEARCH & SEIZURE
    20 The defendant must submit to the search by an Enforcement Officer of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control if the Enforcement Officer believes on reasonable grounds that a condition of this order is not being complied with. (p)
    21 The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order.
    PART H: WEAPONS
    22 The defendant must not possess or use any of the following:
            (a) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,
            (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,
            (c) a spear gun,
            (d) an explosive substance intended, by the defendant, to be used in an explosive device,
            (e) a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the defendant, to be used as a fuse or detonator for an explosive device (as the case may be). (p)
    23 The defendant must not possess or use any of the following, without an Enforcement Officer's prior approval:
            (a) any article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means:
                (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or
                (ii) any substance capable of causing bodily harm.
            (b) a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;
            (c) any other implement made or adapted for use for causing injury to a person;
            (d) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or
            (e) a laser pointer; or
            (f) a digital blueprint for the manufacture of a firearm or a prohibited weapon on a 3D printer or on an electronic milling machine.
    PART I: PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT, COUNSELLING & MEDICAL TREATMENT
    24 The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an Enforcement Officer. (p)
    25 The defendant must notify an Enforcement Officer of the identity and address of any healthcare practitioner that he consults for mental health and related treatment.
    26 The defendant must attend, upon the direction of an Enforcement Officer, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan.
    27 DELETED.
    PART J: EMPLOYMENT, VOLUNTEERING & EDUCATION
    28 The defendant must notify an enforcement officer of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with an Enforcement Officer. (p)
    29 The defendant must not start any job, volunteer work or educational course on his own initiative without the approval of an Enforcement Officer. (p)
    PART K: COMMUNICATION, INTERNET USE & ELECTRONIC DEVICES
    30 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). (p)
    31 The defendant must not use any of the following items unless disclosed and approved for use by an Enforcement Officer:
            (a) Usernames other than "MAYWAND OSMAN"
            (b) Internet account (including email addresses, internet service provider accounts, social media accounts, online communities)
            (c) Devices that have the ability to access the internet
            (d) Passwords (including encryption codes)
            (e) Applications (including instant messaging services)
    32 The defendant must immediately advise an Enforcement Officer of any change to any of the items listed above.
    33 The defendant must not knowingly delete, attempt to delete or clear data held on any of the items listed above without the prior consent of an Enforcement Officer.
    34 The defendant must consent to an Enforcement Officer (or any other person requested by an Enforcement Officer) remotely to inspect any internet account used by him in monitoring compliance with this Order.
    35 The defendant must provide the details of telephone numbers, service provider account numbers, email addresses and usernames, as well as any relevant passwords (including encryption codes) used by him, and the nature and details of any internet connection used by him, as directed.
    36 The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with an Enforcement Officer.
    PART L: ASSOCIATIONS
    37 The defendant must not associate (including using third parties) with any person or persons specified by an Enforcement Officer, whether face to face or by written correspondence or electronic means. (p)
    38 The defendant must, if asked, provide an Enforcement Officer with the name of any person with whom he regularly associates.
    39 The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with other persons or with organisations he knows or should know are advocating or have advocated support for engaging in any terrorist acts as defined in Part 5.3 of the Schedule of the Criminal Code Act 1995 (Cth) ("Criminal Code").
    40 The defendant must not, without prior approval of an Enforcement Officer, knowingly or intentionally contact, attempt to communicate with, or otherwise associate or affiliate with any person he knows or should know is:
            (i) held in custody, or;
            (ii) with any person he is aware is subject to a control order under Part 5.3 of the Criminal Code, or;
            (iii) on parole, or;
            (iv) otherwise subject to a supervision order under the Terrorism (High Risk Offenders) Act 2017 or the Crimes (High Risk Offenders) Act 2006.
    41 The defendant must obtain written permission from an Enforcement Officer prior to joining or affiliating with any club or organisation.
    PART M: IDENTITY & APPEARANCE
    42 The defendant must not change his name or use any other name without notifying an Enforcement Officer. (p)
    43 The defendant must not obtain or change any form of identification without prior approval from an Enforcement Officer.
    44 The defendant must let an Enforcement Officer photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
    45 The defendant must not significantly change his appearance without the prior approval of an Enforcement Officer.
    PART N: EXTREMISM
    46 The defendant must not engage in any act or attempt to influence others to engage in any act that would provide support for or promote extremist ideologies or acts of violence.
    47 The defendant must not purchase, possess, access, obtain, view, participate in or listen to:
            (a) extremist material; or
            (b) other material as directed by an Enforcement Officer for reasons related to concerns regarding violence or for reasons related to his risk of committing a serious terrorism offence.
    PART O: DEFINITIONS
    In these conditions:
    "CSNSW" means Corrective Services NSW.
    "Defendant" means MAYWAND OSMAN also known as ABU KHANJAR, the defendant in these proceedings and the subject of the order.
    "Digital Blueprint" has the same meaning as in the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.
    "Enforcement Officer" means a Corrective Services Officer or Police Officer.
    "Extremist material" means:
    (1) any material that a reasonable person would understand to be:
            (a) directly or indirectly encouraging, glorifying, promoting or condoning hate speech, terrorist acts or violent extremism; or
            (b) seeking support for, or justifying, the carrying out of hate speech, terrorist acts or violent extremism; or
    (2) material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation.
    Examples of "extremist material" include:
            (a) articles, images, speeches or videos that promote hate speech or violent extremism;
            (b) statements or posts made on social media, chat rooms or blogs that encourage hate speech or violent extremism;
            (c) content encouraging people to commit acts of terrorism;
            (d) websites created or hosted by terrorist organisations;
            (e) terrorist training materials;
            (f) suspicious content regarding use or sale of chemicals online; and
            (g) videos or images of terrorist attacks or acts of violent extremism.
    "Material" includes:
            (a) any written or printed material;
            (b) any picture, painting or drawing;
            (c) any carving, sculpture, statue or figure;
            (d) any photograph, film, video recording or other object or thing from which an image may be reproduced;
            (e) any computer data or the computer record or system containing the data; and
            (f) any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.
    "NSWPF" means NSW Police Force.
    "Search" includes:
            (a) A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and
            (b) A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.
    "Terrorist act" has the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where:
    (1) the action:
            (a) causes serious harm that is physical harm to a person;
            (b) causes serious damage to property;
            (c) causes a person's death;
            (d) endangers a person's life, other than the life of the person taking the action;
            (e) creates a serious risk to the health or safety of the public or a section of the public; or
            (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
                (i) an information system;
                (ii) a telecommunications system;
                (iii) a financial system;
                (iv) a system used for the delivery of essential government services;
                (v) a system used for, or by, an essential public utility; and
                (vi) a system used for, or by, a transport system; and
    (2) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;
    (3) the action is done or the threat is made with the intention of:
            (a) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
            (b) intimidating the public or a section of the public; and
    (4) the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person's death, endanger the life of a person, or create a serious risk to the health and safety of the public.
    "Terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State/ISIS and Jabhat al Nusra.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2021

At a glance

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Judgment (19 paragraphs)

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