State of New South Wales v Richardson

Supreme Court of NSW|2023-09-01|Before: Fagan J, Campbell J

JUDGMENT

On 15 June 2023 the State filed its summons to commence these proceedings claiming an order pursuant to ss 20, 25(1)(a), 26(6) and 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (referred to hereafter as "the Act") that the defendant be subject to a two-year extended supervision order and that he comply with 57 conditions set out in a schedule to the summons.
When the summons was filed the defendant was serving a sentence of 5 years imprisonment for an offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence was committed on 10 July 2018. The defendant was arrested on that date and he was subsequently convicted after trial by jury. His sentence commenced on the date of arrest and was due to expire on 9 July 2023.
An interim supervision order was made under the Act by Campbell J on 7 July 2023: see State of New South Wales v Richardson (Preliminary) [2023] NSWSC 794. His Honour ordered in accordance with s 24(5) of the Act that a qualified psychiatrist and registered psychologist be appointed to conduct separate examinations of the Defendant and furnish reports to the Court. Dr Calum Smith, psychiatrist, and Dr Sharon Klamer, consultant forensic psychologist, furnished their respective reports on 16 August 2023.
This judgment concerns the final determination of the summons, following the Court's review of four folders of materials over two days prior to the hearing and the taking of evidence and submissions over a further two and a half days. Dr Smith's report puts the case in a significantly different light from that upon which Campbell J assessed it on the material that was available to his Honour at the preliminary hearing on 30 June 2023. Moreover, in the final hearing the Court has been able to examine more closely than was possible in the preliminary hearing the State's evidence of alleged advocacy by the defendant for a terrorist act or violent extremism.

Defendant's breach of the interim supervision order

The conditions of the interim order included that the defendant wear an electronic position monitoring device and that he submit to the supervision and guidance of Community Corrections officers, including that he reside at an approved address and provide a schedule of proposed movements and adhere to it. When police officers who were assigned to enforce the interim supervision order spoke to the defendant prior to his release on 9 July 2023, he said that he would not comply, including that he would not wear the monitoring device and would not reside at the designated address. On that day, after patient endeavours by police to persuade the defendant to co-operate in wearing the monitoring device, he refused to comply with their directions in that respect. He was then arrested and charged with breach of Campbell J's interim order.
Two charges were laid under s 30 of the Act, which provides for a maximum penalty of 5 years for each infringement. The defendant was remanded in custody. Proceedings on the charge have been stood over to 12 September 2023 for sentence. The 28 days of the interim order are not running while he is in custody on that remand. If the interim order should not be discharged, its time limit would commence to run again upon the defendant ceasing to be detained on remand for the alleged offences of breach.
I have read Dr Klamer's report, which is thorough and extremely useful, but, without disrespect to her, I will not make reference to it in these reasons but rather will address, as necessary the report of Dr Smith. That is because significant issues in the case, as I perceive them, turn upon the formal psychiatric diagnosis of the defendant and upon questions of what medication is and has been appropriate for him and what future treatment options are indicated. Those matters are not within Dr Klamer's expertise, so that whilst her report contains useful information that I rely upon to form my conclusions, I do not find it necessary to refer to it in detail.

Defendant's legal incapacity

Medical records produced to Dr Smith for the purpose of preparing his report include notes from a 16-day admission to hospital in September 2016 during which the defendant's presenting symptoms of paranoid delusions were diagnosed as drug-induced psychosis. There are further records relating to a seven-month involuntary admission from June 2017 to January 2018 at the Cumberland Hospital where the defendant presented with both paranoid delusions and auditory hallucinations.
Dr Smith reviewed a very detailed report of Dr Furst, forensic psychiatrist, dated 21 February 2019. Dr Furst recorded that while in custody after the index offence of 10 July 2018, the defendant had continued to experience auditory hallucinations and "residual paranoid thinking" leading to Dr Furst's diagnoses of schizophrenia, substance use disorder and personality disorder (antisocial and borderline features). Dr Furst assessed the defendant's schizophrenic illness "towards the severe end of the spectrum".
A report of Dr Chew, consultant general and forensic psychiatrist, dated 20 July 2020 recorded no delusions or formal thought disorder at that time. Dr Chew's primary diagnosis was Cluster B Personality Disorder - borderline, predominantly, with psychotic symptoms at times of stress and a possible differential diagnosis of a chronic psychotic illness such as schizophrenia.
For the purposes of compiling his report, Dr Smith read extensive background material concerning the defendant and, during August 2023, reviewed him by Audio Visual Link to the correctional facility where he is on remand. Dr Smith's reviews by AVL were conducted on three occasions over a total of three hours and 45 minutes. In the first interview, Dr Smith found the defendant mildly agitated but reasonably stable, exhibiting restricted affect, one brief period of emotional expression and a notable lack of spontaneity of speech. Dr Smith said this at p 25 of his report: I thought Mr Richardson exhibited poverty of thought, as expressed by his short and vague answers. I believe him to be formally thought-disordered, exhibiting clear disruption in his train of thought. His expressions, particularly when answering specific questions, ranged from comments that were empty or devoid of meaning, to somewhat irrelevant or off topic, to tangential non sequiturs and, frankly, bizarre answers. Some of the manner of his thought was concrete and rigid. I also note it was difficult to elucidate his thought content due to poverty of content of thought and thought disorder.
In the second and third interviews Dr Smith found that the defendant's thought disorder persisted and his affect remained restricted. Dr Smith made the following observations regarding these interviews at pp 25 to 26 of his report: Mr Richardson seemed confused, paranoid, or perplexed about what seemed like simple questions. I noted ongoing contradictory and sometimes nonsensical answers. But at the very least, he appeared to have difficulty maintaining his thread of thought or staying on topic. I noted concreteness and rigidity. I note the report of auditory hallucinations (plural) at interview. I note the use of stock phrases such as, "keep it simple, sticking to my guns".
Upon the whole of the defendant's history and current presentation, Dr Smith concluded at 16 August 2023 that he meets the criteria for a number of diagnoses including schizophrenia, with chronic and acute symptoms, and antisocial personality disorder. Dr Smith considers that the defendant is acutely mentally unwell and requires treatment in secure psychiatric care, including the trialling of antipsychotic and antidepressant medications.
Dr Smith's findings caused the State to raise on the first day of the hearing the question of whether he lacked legal capacity to give instructions for the conduct of the case: see r 7.18 of the Uniform Civil Procedure Rules. The State obtained the consent of Ms Barbara Ramjan to act as tutor. Dr Smith was called to give oral evidence on this discrete issue before the commencement of the final hearing proper. On the basis of Dr Smith's report taken together with his oral evidence on the first day of proceedings, I was satisfied that the defendant lacks legal capacity according to the tests considered in Rappard v Williams [2013] NSWSC 1279 at [76] to [79] and Bowering v Knox [2014] NSWSC 1107, particularly at [13] and [14].
At midday on 29 August 2023 I appointed Ms Ramjan as tutor and adjourned for the day to enable her to familiarise herself with the position in the case and to confer with the defendant and counsel as necessary. On the instructions that were received by that means, when the case resumed on 30 August 2023 counsel proceeded to oppose the State's application for an extended supervision order.

The contested issues

When the summons was filed, the defendant's circumstances brought him within the definition of an "eligible offender" within s 7 of the Act because he was serving a sentence for a New South Wales indictable offence and he is over 18 years of age, being now aged 42. The contested issues with respect to the making of an extended supervision order arise under pars (c)(iii) and (d) of s 20 of the Act. In the circumstances of this case, where all other prerequisites are present, the making of the order depends upon whether the following requirements are fulfilled: (c) the Supreme Court is satisfied that the offender is any of the following - (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme 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.
Given that the Defendant is currently under supervision pursuant to Campbell J's interim order after serving his sentence for a New South Wales indictable offence, he would come under the statutory definition of a "convicted New South Wales terrorism offender", for the purposes of s 20(c)(iii) above, if the following subparagraph of s 10(1) should be found to apply (extracted so far as relevant to the present case): (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.
The concept of "advocating" in s 10(1)(c)(i) is expanded in sub-s (1A) of s 10, as follows (again, quoted only so far as relevant to the case): (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) …, (ii) …, (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.
In determining whether the defendant is a convicted NSW terrorism activity offender under those provisions, it is provided in s 11 that the Court may take into account matters listed in paragraphs (a) to (j) of that section. The matters that the State asks the Court to take into account are primarily reports from Corrective Services officers of statements that the defendant has made while in custody to prison officers and Corrective Services psychologists.
I am required to assess the significance of those statements both with respect to the defendant's alleged status as a "convicted NSW terrorism activity offender" within s 20(c)(iii) and with respect to the risk of him committing a serious terrorism offence as provided for in s 20(d). To make the assessment it is necessary first to consider what the evidence shows about the defendant's personal background, his criminal record and his psychiatric history, and then to note such authority as exists concerning judicial interpretation of the applicable sections.

Defendant's personal history

The defendant's background is summarised in a report of Mr Mark Howard, psychologist, dated 10 November 2009. He was born on 19 November 1980. He is the elder of two children of his biological parents. His parents separated when he was two years old. His father was frequently in trouble with police and was, on occasions, incarcerated. The defendant had an insecure upbringing by his mother up to the age of around 12 years. It appears that she regularly abused alcohol and other substances and was physically abusive towards the defendant.
According to the history taken by Mr Howard, the defendant's mother turned to religion and married a pastor when the defendant was 12 years old, with some reduction of her substance abuse but with continuing conflict and abusive behaviour towards her children. At age 14 the defendant chose to live with his father in the Wollongong area but his father provided inadequate care. When his father relocated away from the Wollongong area, the defendant remained there. Not wishing to return to his mother's residence, he spent one or two years residing with friends or on the streets. He was also confined in a juvenile correctional centre for some of that time.
As an adult, the defendant lived with friends and partners mostly in the Wollongong area and for a period during 2007 in Queensland, with a partner. Most of the defendant's history in early adulthood up to his mid-twenties is of offending and imprisonment, to which I will turn shortly. At times he resided with his mother under parole conditions. On an ongoing basis, the defendant maintains occasional contact with his mother but that appears to be an unstable and unsatisfactory relationship.
The defendant obtained primary education at public schools in the Illawarra region but his learning was disrupted by the family circumstances to which I have made reference and the absence of support from home. He repeatedly engaged in truancy. Although he commenced secondary education and attended two high schools in the Illawarra, his performance was significantly below average. He was repeatedly disciplined for disruptive behaviour and fighting and he left school part way through year 7. It is evident from this that the defendant has obtained very little in the way of education and from the outset has been ill-equipped for employment. For such time as he has been out of prison in adult life, the defendant has engaged in unskilled or partly skilled work for brief periods.
The defendant has had two separate enduring relationships with members of the opposite sex, one between 1999 and 2005 and another leading up to the preparation of Mr Howard's report in 2009. He has one child by one of these relationships. A more significant aspect of the defendant's background for present purposes is his criminal record.

Drug use and criminal record

Following the common pattern of a young person raised in chaotic, abusive and neglectful family circumstances, the applicant commenced to use alcohol and illicit drugs from his early to mid-teens. From the ages 14 to 18 in the years 1994 to 1999 he committed offences of break and enter and stealing that were dealt with in the Children's Court. At age 22, in April 2003, he was convicted of motor vehicle stealing and intimidating a police officer. At age 26 he was imprisoned, commencing in May 2007, for motor vehicle stealing. The sentence was 2 years with a non-parole period of 1 year. The defendant was released to parole on 22 May 2008, at age 27½.
During May 2009 the defendant carried out a series of four robberies in the Wollongong area, in each case armed with a shotgun and in two cases accompanied by co-offenders. He received an effective total sentence for those offences of 8 years with a non-parole period of 5 years. The sentence ran from his arrest on 25 May 2009. After release to parole on 25 May 2014, the defendant was in the community for a little over 12 months when, on 6 July 2015, at age 34, he committed an offence of damaging property that resulted in another term of imprisonment. The offence was most unusual. The defendant locked himself in the bathroom of a private residence in Bexley, smashed it up and provoked what became a police siege. He was clearly in a mentally deranged state at the time. The defendant was sentenced to 18 months imprisonment with a non-parole period of 13 months. That resulted in his next release to parole on 20 August 2016.
Very soon thereafter the defendant was admitted to a mental health facility for 16 days, with what appears to have been a drug-induced psychosis. At the expiration of that, he was returned to custody on 18 October 2016, apparently on the revocation of parole for one or more of his earlier sentences. The defendant remained in custody until about June 2017. During part of that period of custody, from 13 February 2017 for about three weeks, the defendant was scheduled for treatment in a mental health facility under s 55(3) of the then Mental Health (Forensic Provisions) Act 1996 (NSW) (rep).
Upon his release from prison in June 2017, the defendant was scheduled to the Cumberland Hospital for psychiatric treatment. He remained there for seven months until January 2018. The index offence of robbery, armed with a knife, was committed on 10 July 2018, six months after his discharge from Cumberland Hospital. The particulars of that offence were that the defendant entered a liquor store, took a bottle of whisky, presented himself to the service counter, refused to pay for the whisky, produced a knife and demanded that the liquor store attendant hand over the cash in the till, which was a few hundred dollars.
The defendant's custodial history may be summed up as follows: At age 26, from May 2007, he spent 1 year in prison for motor vehicle stealing. In the second half of 2008 and the first half of 2009, the defendant was at liberty for about one year. From age 28-33, between 25 May 2009 to 24 May 2014, the defendant spent 5 years in prison for the four armed robberies committed in the Wollongong area. In the second half of 2014 and the first half of 2015, the defendant was at liberty for approximately one year. At age 34, from July 2015 to August 2016, the defendant spent 1 year and 1 month in custody for damage to property in the Bexley bathroom siege. From August to October 2016 the defendant was at liberty for two months for 16 days of which he was a psychiatric inpatient. At age 36, from 18 October 2016 to June 2017, the defendant served another 8 months in custody. From his release in July 2017 until January 2018, the defendant spent 7 months in Cumberland Hospital as an involuntary psychiatric patient. From age 37-42, between 10 July 2018 and 9 July 2023, the defendant spent 5 years in custody for the index offence of robbery whilst armed with a knife.
It can fairly be said that the defendant's record does not demonstrate a propensity for violence. He never used the weapons that he carried during any of the robberies. His crimes have been economic rather than violent. The defendant has committed some low-level violence within the prison system and those instances are relied upon by the State as bearing upon his risk of violent terrorist offending in the future. However, the institutional violations must be assessed by reference to their circumstances and when that is done they do not stand as a sound guide for any likelihood of future violent offending.
Having spent 13 of the past 16 years, between the ages of 26 and 42, in prison, with only three years in the community over that time and a significant part of that in mental institutions, the defendant must be regarded as severely institutionalised, with a loss of contact with the community and loss of the ability to function in every day life outside the prison environment. He has suffered such a loss of confidence as to deter him from even seeking to be released on parole during his current term.
The defendant has expressed and exhibited great anxiety about trying to reintegrate into the community and to resume civilian life. That anxiety, according to Dr Smith, is aggravated by psychotic delusions that there is a contract on his life, that even in prison people have tried to poison him and that in the community he would be followed and in physical danger.
As will be seen from statements the defendant has made to Corrective Services officers and psychologists, upon which the State relies to support its allegation that he has advocated a terrorist act or violent extremism, the defendant has expressed thoughts, of questionable coherence, about deliberately committing further serious offences in order to secure his return to prison. In that context, when assessing his institutional misconduct, due allowance must be made for the stress of prison life upon such a person, particularly in his state of untreated or inadequately treated psychotic mental illness.
Additional allowance must be made for the fact that the defendant has served three years of his most recent term through the COVID-19 crisis of 2020, 2021, and 2022. It is well understood by the Court and by all persons concerned in the administration of criminal justice that during that period there have been frequent occasions when prisoners have had to be confined to their cells 24 hours a day for many days at a time. The Defendant has had very little education and has minimal personal resourcefulness to cope with long-term confinement under those conditions. His psychosis would have exacerbated the stresses of such unusually restrictive incarceration.
The institutional infringements of which he has been guilty have consisted of the following: On 8 June 2019, the defendant damaged or destroyed property, intimidated corrective staff and disobeyed a direction. An institutional penalty was imposed. On 2 April 2020, the defendant was aggressive towards one inmate and had threatened to assault another. He was locked in his cell to prevent interaction with the potential victims. On 23 November 2020, the defendant was segregated for having assaulted an officer. This occurred while officers were restraining another inmate and the defendant seized an officer by the shoulders and attempted to pull him away. On 22 October 2021, the Defendant was again segregated due to having made a threat of violence. It was also recorded against him that on two occasions it was necessary to use force to achieve his compliance with directions. It was recorded in the prison notes that on these occasions he had described himself as "not being in a good head space". On 2 December 2021, the defendant engaged in intimidation. On 27 July 2022 there were further instances of it being necessary to use force to achieve the defendant's compliance with directions. On 19 April 2023 the defendant made threats that he was in possession of a gaol made weapon and was going to attack other inmates with it. Subsequently he harmed himself with the weapon and then surrendered it.
The State more particularly relied upon recent instances of moderate violence since his re-imprisonment for breach of the interim supervision order, as follows: On 10 July 2023, the defendant stated that he felt unwell and insisted on a one-out cell placement, on medical grounds. That was denied to him, which caused agitation on his part. On 11 July, it became necessary to use force on the defendant in the Parklea main clinic corridor when he refused to follow directions and charged into correctional officers. On 16 July 2023, the defendant engaged in physical conflict with a cellmate. There is a strong inference that this conduct was an attempt to manipulate a one-out cell placement. The defendant and the person with whom he was fighting were separated and there was no significant harm done to either. On 21 August 2023, the defendant was captured on CCTV physically assaulting another inmate. Nil injuries were reported.
The State tendered CCTV video recordings of the defendant's most recent physical altercations but counsel for the State did not suggest that it was necessary for me to review them. I do not regard any of the defendant's minor violent acts while in custody, either taken alone or in combination, as significant for the purpose of assessing his propensity for violence. A long-incarcerated prisoner like this would inevitably find himself from time to time in physical conflict with other inmates, particularly given the stressors to which I have referred and the limitations of his personality and psychiatric disorder. Very often the conduct of prisoners within custody is not reflective of how they may be expected to behave in the community.

Development of the defendant's psychiatric illness

I have already referred to much of the defendant's psychiatric history but to put it in order I will draw upon the report of Dr Furst dated 21 February 2019. The critical events appear to be as follows. In Dr Furst's view the defendant's actions in the Bexley bathroom siege on 6 July 2015 occurred upon him becoming paranoid after relapsing into using drugs. In August 2016 the defendant's admission for psychiatric treatment for sixteen days was another instance of drug induced psychosis. Dr Furst reported that after return to custody following that admission the defendant: …remained paranoid and highly disturbed in his mood during his period of incarceration between October 2016 and the early months of 2017, spending a considerable amount of that time in safe cell (camera cell for inmates deemed to be at high risk of self-harm) at the MRRC. He [recalls] swallowing razor blades.
With respect to the defendant's transfer to Cumberland Hospital after his release from custody on 11 June 2017, Dr Furst states that the following: The medical notes from his admission which are about one lever arch folder thick indicate that Mr Richardson had a seven month admission, remaining paranoid and experiencing auditory hallucinations indicative of severe psychopathology and most likely a treatment resistant schizophrenic illness. He was trialled with a number of antipsychotic and mood stabilising medications during his admission.
Later in his report Dr Furst returned to consideration of the defendant's treatment at Cumberland Hospital in the following passage: His treatment at Cumberland Hospital included relatively high doses of the antipsychotic medication Olanzapine, up to 40mg daily [and an antidepressant medication]. His antipsychotic medication was later changed to Clopixol tablets. He was then prescribed Clozapine in September 2017 for his diagnosed treatment resistant schizophrenia. However, his liver function tests became grossly abnormal leading to cessation of Clozapine and then to the cessation of Olanzapine, also thought to be causing abnormal LFTs. His diagnosis was eventually reassigned to "persisting anxiety with pseudo hallucinations" and PTSD. However, there was no logical clinical basis for such a reclassification which was likely erroneous. He was discharged in January when a boarding house was located in Rozelle, his medication and case management being more in keeping with the primary diagnosis of schizophrenia.
Dr Furst continued his report with a description of the defendant's community mental health team treatment in the period after his discharge from Cumberland Hospital on 11 January 2018 up to the commission of the index offence on 10 July that year. During that period it appears that he continued to receive antipsychotic medication. Dr Furst states that he remained mentally unstable with "ongoing reports of 'voices' [auditory hallucinations] and paranoid thinking in the months prior to his arrest". The defendant said toDr Furst that he found it difficult to trust people and had frequent thoughts of self-harm. He was drinking approximately three bottles of spirits per week which helped to alleviate his apparent psychotic symptoms and mood instability.
Dr Furst reported that the defendant gave a history of "hearing voices a lot" in the days leading up to the armed robbery offence on 10 July 2018, including voices that told him to hurt someone. He was also drinking heavily during that period and used methylamphetamine on a couple of occasions. Dr Furst said that in custody following his arrest for the index offence the defendant continued to hear a voice in his head which told him that people were out to get him, leading him to believe that other inmates and correctional officers wished to harm him. Dr Furst described the defendant's report of his symptoms as consistent with residual paranoid thinking and treatment resistant psychotic illness. The doctor recorded that the defendant understood that the voice was also telling him to harm himself and other people which had led to further episodes of self-harm in the prison and prolonged placement in safe cells. It was Dr Furst's view that this severe schizophrenic illness significantly reduced the defendant's culpability for the offending on 10 July 2018.
Since Dr Furst's report there have been a plethora of reports upon the defendant's ongoing symptoms while in custody but for the purpose of bringing the situation up-to-date it is sufficient to refer to Dr Smith's report to the Court. I have already referred to Dr Smith's principal conclusions. In addition, and in detail, Dr Smith has included at the end of his report an appendix setting out numerous of the defendant's current symptoms and signs. Dr Smith describes a "clear psycho social decline". He states that the defendant's presentation now is markedly different to presentations at earlier times when the defendant has been in custody. He says that there has been some evidence over time that the defendant has responded to antipsychotics, notwithstanding that other doctors have expressed uncertainty as to whether the antipsychotic drugs were achieving anything.
Dr Smith notes that the defendant has not been on Clozapine, which he regards as "the gold standard" for antipsychotic medication, nor has he been prescribed very much of any other kind of medication that would be expected for such a severely unwell person. The doctor notes that the defendant has been infected with Hepatitis B and C viruses and that his abnormal liver function in the past may have been attributable to those infections, suggesting that concern about side effects on his liver may not be a reason to withhold Clozapine. Dr Smith considers that it would be sensible to consider treatment of the defendant with long-acting injections.
I have already referred to what Dr Smith noted about the defendant's disordered thinking, which he regards as a symptom strongly indicative of schizophrenia. The doctor has acknowledged that the defendant's symptoms may also indicate a borderline personality disorder but it is his view that there may be concurrent or co-morbid diagnoses of equal validity. He states the following: My concern is that in previous periods of incarceration Mr Richardson has been settled, has voiced prosocial ideas and has not exhibited wider spread antisocial behaviour by self-harming, carrying weapons or regularly getting in fights. For example in the recent management system notes he has not been paranoid or at least not to anywhere near the same extent. This deterioration is a significant cause of Dr Smith's concern that the defendant needs to receive treatment as an involuntary patient in a secure psychiatric facility.

Case law

The last thing to refer to, before quoting the defendant's statements to Corrective Services staff, upon which the State largely bases its present application, is judicial consideration of the sections that the Court is required to apply.

"Terrorist act"

The relevant part of the definition of a "convicted NSW terrorism activity offender" is concerned with advocacy for "any terrorist act or violent extremism". By force of s 4(1) of the Act, "terrorist act" has the same meaning as in Pt 5.3 of the Criminal Code (Cth). In Pt 5.3, "terrorist act" is defined in s 100.1(1) as follows: "terrorist act" means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public
In sub-s (2) of s 100.1 there is a list of actions such as causing physical harm or death to a person, endangering the public and causing damage to or endangering property or infrastructure. In sub-s (3) there is a list of exclusions such as advocacy, protest and/or industrial action that are not intended to cause physical harm or death to any person or to create a risk of such harm. The critical aspect of the definition of "terrorist act" is the twin intents of "advancing a political, ideological or religious cause" and of "coercing, or influencing by intimidation" an Australian government or intimidating the public or section thereof.
In Hardy v State of New South Wales [2021] NSWCA 338 the appellant raised an issue as to whether his transient delusional state precluded a finding that he had advocated a terrorist act or violent extremism. At [23]-[24] Basten JA made the following observations: [23] … Similarly, if his conduct were properly characterised as advocating support for violent extremism, the fact that such support was based on a delusion did not render his advocacy other than intentional. [24] Finally, as senior counsel for the State submitted, advocating support required a characterisation of conduct, not an inquiry into the underlying motivation. Support for violent extremism is readily inferred from a threat to commit such violence. Where the threat is made not by way of a private communication but by a statement on the outside of an envelope, to be read potentially by numerous persons other than "the Minister" to whom it was addressed, [it] qualifies as advocacy.

"Violent extremism"

On the meaning of "violent extremism" in pars (1)(c)(i) and (1A)(a)(iii) of s 10 of the Act, in Hardy v State of New South Wales, the following observations were made: [29] On the one hand, it would be erroneous to construe an undefined alternative ["violent extremism"] as covering the same territory as the defined term ["terrorist act"]. The words "or violent extremism" were introduced by amending legislation in 2018, which was apparently intended to broaden the coverage of s 10 and s 20(c). [30] … The concept of "extremism", in its ordinary usage, refers to extreme views, usually of a political, religious or ideological character. It may be accepted that the term "violent extremism" does not refer to any form of violent behaviour, but rather a violent form of an ideology. Whether it extends beyond the scope of the definition of "terrorist act" need not be determined. ... (Basten JA) [82 It is clear that the appellant had threatened extreme violence. The State accepted that "violent extremism" in s 10(1)(c) connoted an element of ideology and is not to be equated with extreme violence. I agree with the State's submission that "violent extremism" refers to violence associated with, or in furtherance of, or motivated by extremist views. It does not follow that it was necessary to demonstrate that the Sovereign Citizen Movement, whose ideology the appellant supported, advocated violence. What was necessary was that it could be concluded that the appellant had advocated support for violent extremism, as distinct from having threatened extreme violence. (White JA)
The effect of the sections of the Act that I am required to apply, as interpreted by the Court of Appeal, is that I must seek to identify within the statements made by the defendant, first, whether he has disclosed or espoused any ideological or political cause. Secondly, I must ascertain whether he has advocated support for any terrorist act or violent extremism, that is, any violent act or course of violence that would be undertaken with the twin intents of advancing his ideological or political cause and "coercing, or influencing by intimidation, the government" or intimidating the public or a section of the public.
For the purposes of s 10 of the Act I am required by the decision in Hardy v State of New South Wales to assess the defendant's utterances according to the meaning that they objectively convey without examining whether the defendant, in his thought-disordered and psychotic state, really intended that meaning or held the opinions conveyed with any genuine comprehension or constancy. On the reasoning of Basten JA I understand that I should not discount the face value of the statements, notwithstanding that, having regard to Dr Smith's evidence, they are likely to have been conveyed in a disordered, disconnected manner and to have been driven, at least to some extent, by psychotic delusions.

The defendant's statements

The relevant evidence of the defendant's statements concerns things that he said to psychologists in the Acute Crisis Management Unit at Long Bay, where he has been housed since at latest mid-2019. The statements that need to be considered commenced in August 2021 and continued through to April 2023. For most of that period his statements were made in the course of intermittent discussions with psychologist staff members who sought to ascertain his mood and his thoughts and his mental state generally. In those discussions the defendant almost invariably described his thoughts as "in a dark place". He spoke of suicidal ideation and expressed almost constant contemplation of self-harm. The defendant did in fact inflict harm upon himself about 60 times in the four years between April 2019 and July 2023, usually by cutting himself.
In the psychologists' contacts with the defendant from August 2021 onwards he expressed a diffuse and unconnected range of grievances about police, Corrective Services, Australian foreign policy, Muslims, indigenous people, social and government policies towards ethnic and religious groups and several other aspects of human affairs.
The defendant's earliest date for eligibility for parole was 9 November 2021. Commencing in August 2021, as that potential release date approached, the defendant expressed a definite decision not to apply for conditional release. He commenced to speak of an intention to commit further crimes when his full term had expired, in order to be returned to prison. Those conversations evolved into statements that he would carry out multiple murders. The psychologists were bound to escalate the reportage of such statements. The reports came to the attention of Ms Cruickshank, a forensic psychologist within the Countering Violent Extremism (CVE) unit of Corrective Services. She responded by interviewing the defendant over a total of 11 hours between 13 January 2023 and 16 March 2023, for the purpose of assessing the risk posed by him. A number of the statements relied upon by the State as evidence that the defendant has advocated acts of violence in furtherance of an ideological cause were made to Ms Cruickshank during her 11 hours of interviews.
In its endeavour to impute to the defendant an ideological cause, the State sought to isolate the defendant's statements concerning hostility to indigenous people. However, I consider it necessary take into account the full range and variety of the defendant's expressed hostilities and grievances in order to gauge whether an intelligible ideology can realistically be distilled from the whole mass.

Statements to Acute Crisis Management Unit staff in 2021 and 2022

On 5 August 2021 the defendant told a psychologist within the Unit that he did not wish to apply for parole because he did not trust himself and was thinking about reoffending. He said he had thoughts about committing another armed robbery or something more serious. He said that if he ended up stabbing or shooting someone he could "blame parole as they let him out". He said that he was scared that he was having these thoughts. The psychologist's record of this conversation attributed to the defendant the words: "I hate society at the moment".
On 20 December 2021 the defendant told a prison officer that upon release he planned to blow up Surry Hills police station and Mascot police station because there are too many corrupt officers in those stations and he needed to do something big in order to return to gaol. He said he was "comfortable living the rest of his life in gaol".
On 29 March 2022 the defendant told another member of the staff that he had a purpose when he gets out. He said he had friends with "a .223 and pistols". He would start from Brisbane and work his way down and become a serial killer of random people. He said that he did not have any emotional connection with his victims and would feel nothing. The defendant said he was sick of charities taking and not giving to people in need.
On 12 April 2022 the defendant spoke to a psychologist in the Unit. He was agitated and raised his voice in frustration. The report included the following: Said that he frustrated with the system and believes it is racist and there is inequality in how inmates are treated. Agreed to discuss these issues privately.
On 14 April 2022 during a psychology session the defendant told the psychologist that he had been having dark thoughts in recent weeks. He said that he had plans to access firearms sometime after his release in 15 months' time and "will do something that will result in him returning to custody for the rest of his life". The record continues follows: Mr Richardson asked how to overcome these dark thoughts but when questioned whether he wants to overcome them he said he did not and that they helped him feel calm and motivated. In this conversation Mr Richardson emphasised his antisocial views stating that the system let him down, that it contributed to his incarceration and self-harm behaviour, and that there was inequality. [The psychologist] reflected on Mr Richardson's insinuations that he will use violence to address societal issues and their capacity to influence change. On this, Mr Richardson appeared less certain. […] It is unclear whether Mr Richardson's plans post-release were genuine or whether he was just venting his frustration or feels a loss of power over his inability to control his emotions and behaviour.
On 21 April 2022, the defendant spoke again with the same psychologist and said he was willing to spend the rest of his life in gaol, "alluding to his plans post-release without giving details". He again referred to feelings of being let down by the system and it being corrupt.
On 7 June 2022, the defendant said to a corrective officer that he had made up his mind not to apply for parole and again said that he had plans for when he got out although he would not elaborate, saying that he did not want to incriminate himself. He said he would definitely not answer whether his plans involved harming himself or others.
On 24 June 2022, the defendant spoke with a psychologist in his unit. He said that a voice had urged him to injure himself and not to comply with prison directions. He said that the intensity of this voice was increasing. The psychiatrist continued her report in these terms: He then referenced his goals for release and that he had spoken with some custodial staff about the same. He noted the intention of this was to enact his plans/goals and then "talk to journos" and let them know "I told the system", "I'm sacrificing myself for the bigger picture", then hand himself in to police "honestly I am doing the right thing". He would provide no further detail to this author.
On 27 June 2022 in another interview with a staff member he said that the continuing bad thoughts were getting stronger and that they related to "a plan that he has for when he is eventually released": He stated that the plan involves harm to others, not himself. He said the plan would send shock waves through the community and the plan would be to send a message about human rights or fair rights.
On 11 August 2022, the defendant reported to one of the psychologists that he was experiencing ongoing and intense suspicious ideation and was hearing voices. The report continued as follows: He spends a lot of time "scheming" "lotta planning" "nothing technical" "cause as much damage" in the time available (for a response to be called) - stated targets would not be random, but would provide no further details. When queried about whether it was officers or inmates he stated, "don't know". When queried as to why he had not acted on these thoughts/plans he stated, "I haven't had the opportunity". The Officer said he remained vague and guarded in his response, referring to a lot of thinking through his plans.

Ms Cruickshank's violent extremism evaluation interviews

From a break in the records it appears that the defendant must have been in a better state of mind from mid-August 2022 until January 2023. On 10 and 11 January 2023 there was a significant incident of self harming by slashing his forearms. On 13 January 2023 Ms Cruickshank initiated her contact with the defendant to try to evaluate the seriousness of the statements that had been reported to her by psychologists in the Acute Crisis Management Unit. When she spoke to him on 13 January she made a record that included the following: He was not familiar with CVE programs and was not aware of what the term "violent extremism" meant. This was explained to him. He was informed that he was being assessed due to comments he made between late 2021 and mid 2022. (This timing is based on case notes). He appeared surprised that any concerns had been reported. He commented on the perceived lack of helpful intervention he received related to his verbalisations around that time. He claimed that various staff members to whom he divulged his thoughts never raised objections. He intimated that had he received more timely and specific intervention regarding his thoughts of taking future violent action, he may have come to understand why he was thinking that way and developed strategies to manage it. He suggested that intervention was too late now. He questioned why the assessment was only taking place now. He stated he wouldn't say yes or no to whether he intended to carry out his plan or words to that effect.
Significantly, this communication with Ms Cruickshank was the antithesis of advocacy, persuasion or urging. According to this record, far from advocating a terrorist act or violent extremism, the defendant complained about not having been deterred from the plans he had described to other officers, which he said he would implement upon his release.
On 14 and 15 January 2023 there was another significant incident of the defendant self-harming. He cut his forearms and used the blood to write on the walls of his cell.
On 17 January 2023 Ms Cruickshank conducted the longest and most detailed debriefing of the defendant concerning his assertions that he would carry out violent acts upon his release. This took place over two sessions, one in the morning and one in the afternoon. It is necessary to quote at length from Ms Cruickshank's report on this occasion because it appears to encapsulate the statements of planned action upon which the State centrally relies. On this occasion Ms Cruickshank assessed that the defendant was able to articulate well and that he was logical, coherent and confident. Notwithstanding those observations she recorded that he was: Suspicious of the process and the author's intents and purpose of the assessment. Often this included questions whether CBE and the assessment process was real.
It was Ms Cruickshank's view that he did not present with low mood. She thought his affect was somewhat restricted and that he at times had "an intense stare and would quickly move between topics". Nevertheless she thought there were no observed psychotic symptoms or memory deficits. Despite the statement that he would move quickly between topics, Ms Cruickshank's record reads as if there was a fairly continuous discussion on substantially the one topic.
The defendant started by saying that he had something to give Ms Cruickshank and at the end of the interview he arranged for another officer to go to his cell and bring back to her a laminated copy of what Ms Cruickshank describes as the National Colonial flag, being a flag design that was proposed for the Australian Colonies in the 1800s. Ms Cruickshank noted that this flag does not appear to have been obviously associated with any political movement, yet she thought that the defendant had taken it to symbolise his plan which she then obtained from him. The following are relevant extracted parts of her report: He reported the perception that "Koori" inmates are subject to preferential treatment in custody. He listed having Koori welfare officers, Aboriginal Legal Aid and free to air NITV as examples of how he perceived the system to be racist. He stated calling Australia Day "Invasion Day" was "putrid". He later complained that inmates used to get a barbecue on Australia Day and that this no longer occurs. He also listed the perception that other minorities received preferential treatment listing Ramadam, buy-ups for Lebanese inmates and Chinese New Year for Asian inmates. Despite this his primary focus was on Aboriginal people. […] [He] questioned again whether the assessment process was "real". He presented to be suspicious of my role and whether CVE Programs existed. He questioned why no-one had heard of CVE Programs, why he hadn't been seen sooner and why officers had not been pre-informed of my visit. He stated his intention with his plan is eventually to get caught - he stated he wants to get caught and be interviewed by a journalist so he can get publicity for his cause and tell his own story regarding his perceived treatment in custody. (Emphasis added). He stated targets would be 15 Aboriginal males (not women or children), he specified middle aged men but with no other specifications. […] He repeated that he was in possession of the flag design he wanted to use. He stated it was designed by a Fleet Captain and that he had previously had it on his cell wall although it was in his tub now. He stated he intends to get 20 stickers made in that design. […] He stated he would like to commence his plan with targets in the ACT, move on to NSW and complete the plan in Queensland. He believed that if he keeps moving he won't get caught. He stated that he wants to tell his story. He was of the belief that he would be able to sell his story to the media. […] He confirmed his targets are Koori. He stated he is "sick of whingers" "they want everything" they want their land back "they are filtering into the Government". He stated he "can't cop invasion day". […] He reported in the lead up to his current offence he had accumulated other weapons and listed "cuffs", an "ammo belt" and "capsicum spray".
The State places reliance upon the words that I have emphasised in bold above. It is not known whether the defendant used the word "cause" or whether it is Ms Cruickshank's term. Either way, the appearance of that word in the evidence is not significant in determining whether the grievances described by the defendant constitute a political or ideological cause or whether it would be more accurately said that what he was proposing to get publicity for was a personal complaint of racially based unequal treatment of himself.
On 30 January 2023 there was a further substantial discussion between Ms Cruickshank and the defendant, on this occasion ranging across a wider spectrum of disgruntlement. The relevant extracts from the report include the following: He stated he had completed [alcohol and other drug dependency] treatment and segued into discussion of his beliefs that drugs should be controlled and legal. Then went on to question why Australia is providing money to Ukraine while there are people in need in Australia. He related to having "been there" (i.e. poor and in need). […] [He reported having absconded to Queensland while on parole]. Prior to Queensland he had been briefly in Adele House [drug rehabilitation facility] at Coffs Harbour. He was insistent that it was" dodgy" and run by bikies and then expanded this into his general views on corruption, e.g NDIS profiteering, "always something dodgy", people falsely claiming [child sexual abuse] motivated by getting compensation. Questioning why these victims took so long to report and that they used the money to buy drugs.
In a further discussion the next day, 31 January 2023, the defendant repeated his insistence upon not seeking parole.
On 9 February 2023 there was another long session in which Ms Cruickshank obtained from the defendant statements about his grievances and intentions. These included the following, according to her report: At the beginning of the morning session Richardson made comments about "sleepers" (being e.g. undercover police or other people who blend in to get trust and/or information). He said there had been an incident in ISU yesterday and complained of unequal treatment in this regard. He reported an [Aboriginal or Torres Strait Islander - ATSI] inmate had spat at an officer and that he should consequently be managed in cuffs but wasn't. Richardson stated that he himself doesn't spit or bite. […] He stated that he didn't like the way Australia is changing and that it has got worse in the last 4-5 years. He gave the example of Australia day being called "Invasion Day" - he viewed this as a racist term and a "spit in the face". He stated issues go back to the "forced" apology the Government made to Aboriginal people. He believed this opened the door on restrictions to freedom of speech. He objected to what he labelled "claimers" (i.e. people with what he viewed as limited Aboriginality - 5% identifying as Aboriginal and receiving "red carpet treatment"). He questioned "why can't I get free stuff".
Ms Cruickshank then reported a series of points that she attributed to the defendant. I am not able to accept that these would have been conveyed by him in the ordered arrangement that she has reported, having regard to Dr Smith's report about the defendant's thought disorder and Ms Cruickshank's record of an earlier date concerning his tendency to jump from topic to topic. Nevertheless, I accept that the following things were said at one stage or another during the interview, all expressed in Ms Cruickshank's paraphrase except to the extent of the words in quotation marks: People who were born in Australia were Australian and should be treated equally. [The defendant] hates people whinging and complaining. An [Aboriginal] inmate had used the term "white cunt". Australia is "fucked". He complained about Muslims. He stated that it is not the Muslim children's fault if they were "brainwashed". He complained about mosques being built in suburbia and making it difficult for residents to park and reducing the value of their properties. He did not believe you have to be "white" to be Australian. He did not like people "carrying baggage" from their home countries and criticised Muslims in this regard. He stated the perception that Muslims pushed their beliefs on others and think they are better than others. He stated this was similar to other religions. He stated Muslims in gaol were hypocrites, as they committed crime, (including drug dealing) but still practised their religion, "taking up half the yard praying". He stated that the worst Muslims were those who converted others. He complained about an [Aboriginal or Torres Strait Islander] officer working on the weekend, who played didgeridoo music over the loud speaker. He viewed this as racist. He said he didn't view his potential targets as human. He wouldn't harm women or children and expressed a belief that most Aboriginal and Torres Strait Islander women were in [domestic violence] relationships. He stated he had associates in the early to mid 2000s with similar beliefs to his own. He felt they didn't influence him, they were just in agreement. He denied any involvement with any type of gang. He stated he wants to make a stand. He questioned why North Korea aren't just left alone "to do their own thing". He questioned the war in Ukraine. He suggested that issues with respect to Ukraine dated back to the country wanting to be part of NATO. He said he doesn't like NATO and thinks [that the organisation engages] in bullying behaviour towards others. He stated that he doesn't like globalisation and that countries shouldn't be involved in other countries' wars. He felt all countries/governments/institutions are corrupt. He was dismissive of the democratic process. He stated he doesn't vote as it doesn't work. He viewed majority winning as problematic. He did not propose any alternatives or solutions and did not claim there were any. He did not feel his plan would actually change anything other than to gain publicity for himself, "my name will be there". (Emphasis added).
The last two points make explicit that which, in my opinion, is generally apparent from this record of the defendant privately communicating his thoughts and ideas to Ms Cruickshank, at her request. These statements contain no element of advocacy or persuasion. The essential character of the defendant's recounting of grievances was simply his disclosure of what he was thinking to an official Corrective Services psychologist. She had told him on 13 January that she was making an assessment of him and the defendant was cooperating, with apparent frankness. The defendant's litany of grievances was not broadcast to the public or shouted across the prison yard or incorporated in any social media post or in a letter or the like. To construe this tirade of disgruntlement as some form of advocacy for a cause is in my respectful view divorced from the reality of the circumstances in which the statements were made. It is also contrary to the explicit disclaimer: the defendant's words emphasised above, amount to a disavowal of any attempt to persuade anybody to anything.
Further elements of this long interview included the following: He was asked what his flag symbol represented. He stated it represented "better times" when new countries were being found and settling Australia was a "new [dawn]". He stated he wished he lived back then.
In this statement it is shown that, far from seeking to advance a cause or to coerce a Government or intimidate the public, the defendant was merely pining for a different state of society in an earlier period. There is no project suggested of altering anything for the future. This is nostalgia for the past, not advocacy for restoration of past social conditions or for any other cause.
The conversation with Ms Cruickshank on 9 February 2023 continued with the defendant's expression of opinion that things were better in the eighties. He expressed approval of Bob Hawke on the basis that he was "a full Aussie" and drank beer and was easy-going. He expressed a view that they "fucked up" in the nineties by letting people into Australia without background checks. Ms Cruickshank's note continues: He gave the example of Cabramatta being problematic in this regard. He listed a number of suburbs and ethnicities including Asian, Arabic and Islander and stated that he feels "out of place" in suburbs with mixed ethnicities. He stated the belief that if you ask any middle aged white man (or words to that effect) they would feel the same. […] He stated that he was talking about his plan and beliefs because he perceived that it will help him no matter what if he can act on his plan he can tell media that [Corrective Services] were aware and did nothing. If he is kept in custody he stated he will harm someone in custody. He again blames [Corrective Services] for housing him in ACMU for an extended period and believed he could have been housed elsewhere. He admitted that he doesn't like following rules and can self sabotage. He stated when he feels like things are going too well it feels "weird".
A further statement by the defendant in this interview, disavowing any endeavour to change anything, to influence anybody or to persuade or advocate with respect to anything, was the following: He listed his primary motivations to include his political beliefs that his plan is original. He is not trying to change anything other than to red light a few things, namely that the system doesn't work. (Emphasis added)

Further consultations with Acute Crisis Management Unit psychologists

On 17 February 2023 in one of his usual sessions with a psychologist in the Acute Crisis Management Unit the defendant reported having been spoken to by Ms Cruickshank and having related his plan to kill 15 middle age indigenous men when back in the community. The psychologist recorded that he maintained this plan but provided no further details.
On 21 February 2023 the defendant requested to speak to a female officer from the Case Management Unit, and he reported to her that his aunt in Queensland with whom he had proposed to reside upon release was no longer willing to have him. He said that he had no real hope of living outside in the community. He agreed with the officer's comment to him that he may be sabotaging his own release. She reported that he spoke of the fact that he may stay in under an order. This is stark evidence of the degree to which defendant has become institutionalised.
On 13 March 2023 the defendant had another conversation with one of the psychologists in his Unit. He referred to a recent event of physical conflict in the Unit in relation to a failure to follow directions. He expressed a perception of injustice. He said that he did not want to move anywhere.
On 24 April 2023 the defendant was spoken to by a member of the Risk and Intervention Team when he was secured in his cell. He sought to have a change to the conditions that were being imposed on him at that time but was told that he was perceived as manipulating and that his demands would not be met. This resulted in the defendant expressing frustration and saying the system is broken in gaol and in society and that eventually he would get his own way. The defendant went on to complain to the Risk and Intervention Team member that eventually, in nine weeks, he would be free to do whatever he wanted and that "society is fucked and the whole system doesn't work ". The defendant stated to this officer that he was planning to kill 10-15 people in different States around Australia, to hit the news and tell the journalists what happened in gaol about this broken system. He said that he did not care if he was killed during the manhunt, that he was sure that was not going to happen because he knows how police operate. He said the majority of his targets are aboriginal and people claiming any sort of percentage of aboriginal inheritance because they are "sucking the life out of the country". He said the anti-terrorism unit had nothing on him and that in due course he would tell the journalists that everything was recorded but no one did anything to stop him. He also stated that during one of his interviews with the psychologist he had been told that his vision is of communist belief and very patriotic but he denied being communist.

Conclusions regarding the statements relied upon by the State

No ideological or political cause

I cannot discern in any of the defendant's statements, either individually or in the whole of them taken together, any cluster or sequence or system of beliefs or ideas that could reasonably be characterised as an ideology or as the expression of a political cause or objective. In the defendant's depressed, disordered and delusional state, he has shown by his expression of hostile and at times violent sentiments that he is dissatisfied with many aspects of societal relations, inter-ethnic relations, government policies and the conduct of government institutions and agencies. However, he has expressed no alternative arrangement that he would like to bring into being. Nor has he expressed any desire to disrupt or to destroy the working of the whole of government without replacement.
The defendant has expressly disavowed any desire to change the beliefs or behaviours of others, or to bring about change in anything that is being done by governments or by any section of the public. Despite his disgruntlement with so much, he espouses no cause, political, ideological or otherwise. He has no objective towards which he desires to coerce any government. The defendant has neither expressed nor implicitly revealed any wish to intimidate the public or any section of it for any purpose. He is just disgruntled, and if taken at his word, he is in a mood to express his disgruntlement by killing people.
The defendant has stated a plan to kill a number of victims at random or alternatively to kill up to 15 indigenous adult males. That plan bears the character of a proposal for violent expression of personal grievance. I reject the submission of counsel for the State that it represents a one man "idiosyncratic ideology".

The content of the statements is not advocacy

I also find, as earlier stated, that there is no element of advocacy in the defendant's statements. In the course of narrating them I have pointed out explicit disclaimers of advocacy or urging. Overall, there is absent from the statements any attempt to urge upon the listener, or upon anyone else to whom his thoughts might be conveyed, adherence to any particular point of view or to identify a cause that might be supported by voice or action. No message of persuasion could be inferred from these utterances to the psychologist.
At its highest the defendant has stated what he individually thinks and proposes to do, without any apparent consideration for whether the listener or anyone to whom his thoughts might be passed on should agree or follow suit.

The circumstances of the statements are inconsistent with advocacy

Also the circumstances of the making of these statements are inconsistent with any element of advocacy. The statements were not made publicly or to fellow inmates or to persons to whom he might do harm. They were all made directly to people in authority, in a setting where those persons, particularly Ms Cruickshank, sought from him disclosure of his thoughts. That context and the purpose and nature of his disclosures is entirely against a construction of the things said having been a form of advocacy.

The extended concept of advocacy in s 10(1A) of the Act

With respect to s 10(1A), one could characterise the statements as the expression of threats, although not made in the sense of threatening harm to the persons spoken to but, rather, threatening harm to others. A threat may be made to A about harming B. However, the following part of sub-s (1A)(a)(iii) is not fulfilled: … 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.
There is no evidence before the Court of the existence of any person, group, organisation or ideology who or which supports terrorist acts or violent extremism and makes threats to murder indigenous adult males on the basis of their race. I have no knowledge of the existence of any such people, groups et cetera. No such phenomenon is judicially noticeable.

Conclusion on s 10 and par (c)(iii) of s 20

I conclude that the defendant is not a convicted NSW terrorism activity offender. Nor is he within any of the other class of terrorism offender referred to in s 20(c). The Act does not apply to him. The State's summons must be dismissed and the interim order made by Justice Campbell on 7 July 2023 must be discharged forthwith.

Assessment of risk under s 20(d)

If I had formed the view that the defendant was a convicted NSW terrorism activity offender within s 10 of the Act I would nevertheless have dismissed the State's summons because, on the evidence tendered, for the purposes of s 20(d) of the act I would not be: 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.
First, I do not consider that there is an unacceptable risk of the defendant committing any violence or damage to property that could constitute the physical element of a terrorist act as defined in s 100.1 of the Criminal Code. In that respect I reiterate that the defendant has never perpetrated any significant personal violence against any person in the 42 years of his life to date. His only act of significant property damage was the Bexley bathroom siege in 2015, which occurred during a floridly psychotic episode. The instances of the defendant threatening violence in conjunction with his robbery offences, by brandishing weapons, coupled with his minor prison assaults and the instances of damage to property in his cell, are not sufficient to indicate a significant risk of terrorist violence.
The defendant's statements to Corrective Services psychologists are some evidence that he poses a risk of carrying out an act of personal violence, but I consider that the risk is not elevated to the point of being "unacceptable … if he is not kept under supervision". In reduction of the weight that I attribute to those statements I take into account not only the defendant's psychotic derangement at the time they were spoken but also the fact that there is a clear element of the defendant ruminating obsessively about his concern at being released into the community.
I recognise that the defendant has stated that he would use firearms in the offences proposed. In that regard, it is notable that there is no evidence of him having been in possession of firearms during any of his brief interludes of freedom over the past 14 years, since he committed the robberies in the Wollongong area in 2009. There is no evidence that he has criminal connections or any ready means by which he could obtain firearms. His assertions that he would gain such weapons appear to be part of his delusions. Similarly his concept that he would carry out multiple murders by avoiding apprehension, travelling through the countryside and outwitting police, appear to be a product of delusion. The defendant has exhibited no such capability at any time in his life, so far as the evidence shows.
Secondly, s 20(d) is concerned not merely with the risk of commission of an act of personal violence or property damage but with the risk that such an act would be accompanied by the twin intentions prescribed in paragraphs (b) and (c) of the definition of "terrorist act" in s 100.1 of the Criminal Code , quoted at [48] above. I perceive negligible risk that if the defendant were to act violently towards people or property he would do so with either of those intentions. I have already said that I find his widely based dissatisfaction with the state of his country and world affairs devoid of any ideological cause that he wishes to advance and that he has not evinced any desire to coerce a government or intimidate any part of the community for any purpose.
There is some degree of risk that the defendant's mental disorder may dispose him to lash out violently or destructively on some occasion. That would be true of thousands of people at large in the community, who are not under a regime in the nature of an Extended Supervision Order, but who suffer psychotic illnesses or, from time to time, drug induced psychoses.

Urgency of assessment under the Mental Health Act 2007 (NSW)

The risk with respect to the defendant is not unacceptable for the purposes of the Act. However, his circumstances plainly call for consideration by those who have responsibility under the Mental Health Act 2007 (NSW). Section 14 of that Act provides as follows: 14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary - (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
The defendant will likely remain in custody under his present remand until 12 September 2023. Against the likelihood that the Local Court, in dealing with the two charges of breach of the interim supervision order, will see fit not to impose any further term of imprisonment, the defendant should be urgently assessed by an authorised medical officer under s 14, to determine whether he should be detained in a mental health facility as an involuntary patient under s 12.
Risk to the safety of the community falls to be assessed by a medical practitioner on psychiatric grounds, the terms of the Terrorism (High Risk Offenders) Act not being engaged on these facts.

Release of the defendant without supervision or support in the community

It is regrettable that the defendant did not apply for release to parole. If he is not to be scheduled for involuntary psychiatric treatment, as Dr Smith has recommended in emphatic terms, then the defendant will shortly be released into the community without supervision by Community Corrections Officers, under parole conditions, and without any other support or supervision under statute. Such unsupported release has led to serious repeat offending by other persons in comparable circumstances in the past. I have urged the defendant's legal representatives to try to recruit a prisoner welfare charity or similar organisation to put in place support in the community for the defendant's re-integration.
I am not sufficiently aware of the workings and protocols of the State Parole Authority to know how this type of situation has been dealt with in the past or whether a policy has been formulated with respect to offenders, such as this defendant, who do not apply to be released prior to expiry of their full term. The Authority may think it appropriate in some such cases to consider granting parole and discharging such prisoners on conditions of supervision, notwithstanding that they may wish to serve out their full terms - for the purpose of providing a window of opportunity for supported re-integration into the community.

Orders

For these reasons orders were made on 1 September 2023 as follows: 1. The plaintiff's summons is dismissed. 2. Orders 2 and 3 made by Campbell J on 7 July 2023, providing for interim supervision of the defendant and for compliance with conditions, are discharged with forthwith. 3. The plaintiff is to pay the defendant's costs of the proceedings.

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: 04 October 2023

Mental Health (Forensic Provisions) Act 1996(NSW)

(NSW)(rep) Terrorism (High Risk Offenders) Act 2017(NSW)

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