State of New South Wales v Tabbah

Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)

Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119
Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56
State of NSW v Vu (Final) [2021] NSWSC 1282

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Salim Tabbah (Defendant)

Representation: Counsel:
LMR Chapman (Plaintiff)
E Kerkyasharian (Defendant)
Solicitors:
Crown Solicitors (Plaintiff)
Legal Aid Commission (Defendant)

File Number(s): 2024/450635

Publication restriction: Nil

JUDGMENT

1. On 19 February 2025 Lonergan J made interim supervision orders under the Crimes (High Risk Offenders) Act 2006 (NSW), after Mr Tabbah’s release from custody, he having served the sentences imposed upon him for his various past serious violent offending: State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56. Her Honour also appointed experts to examine Mr Tabbah and report to the Court.

2. The only issues remaining between the parties at the final hearing of the State’s application that an extended supervision order be imposed on Mr Tabbah for a period of two years, concerned three aspects of the proposed conditions of that supervision.

3. They having agreed that the evidence, which includes the reports of the two appointed experts, establishes that the requirements of the statutory scheme have been satisfied and that the Court should exercise its discretion to make a final supervision order for a period of 2 years.

4. What remained in issue concerned the requirement that Mr Tabbah provide a schedule of his movements; an exclusion zone of places which he could not enter; and the terms of a non-association condition.

5. Further discussion during the course of the hearing and subsequently, resulted in the State pursuing final orders in different terms and it not pressing the proposed condition in relation to the exclusion zone. But still the other two conditions were not agreed.

Conclusion

6. For reasons which follow I have concluded that the Court’s discretion to make final supervision orders have been engaged and that I should exercise the Court’s discretion to order Mr Tabbah’s ongoing supervision for a period of 2 years, with the disputed conditions being resolved on the basis which I will explain. I being satisfied that the conditions which Mr Tabbah urged did not diminish to an acceptable risk, the very high risk of further violent offending which the evidence establishes that he continues to pose.

The requirements of the Act have been satisfied

7. I am satisfied that the parties’ joint position, that the requirements of the Act have been satisfied so as to permit the Court to make a final supervision order must be accepted. Further, as they also agreed, that it must be concluded that Mr Tabbah still poses an unacceptable risk of committing another serious violence offence, as that term is defined in s 5A of the Act, if he is not kept under the ongoing supervision which they have agreed he requires. That is because of:

8. The consideration which must be given to the evidence in light of the protective objects of the Act which are specified in s 3. They being intended to ensure the safety and protection of the community and to encourage high risk violent offenders such as Mr Tabbah, to undertake rehabilitation: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] and Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147];

9. The safety of the community being the paramount consideration: s 9(2);

10. Mr Tabbah’s long history of offending having involved not only serious harm done to others, including on an occasion while he was still in custody for which he is yet to be sentenced, but also his conviction for manslaughter and later admission that it was he who had fired the gun which resulted in the victim’s death;

11. The satisfaction of the requirements of s 5A by the evidence which the parties led, it specifying when the Court may make an extended supervision order;

12. The evaluative task the Act requires having been undertaken, I being satisfied that the evidence also establishes, to a high degree of probability, that Mr Tabbah continues to pose an unacceptable risk of committing another serious offence if he is not kept under the further supervision I propose to order. “Unacceptable risk” having the meaning explained in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51];

13. The evidence also establishing not only that the likelihood of Mr Tabbah committing another serious violence offence is high, but that the likely consequences of such an offence are grave;

14. The account which has to be taken of the factors specified in s 9(3) of the Act in considering the evidence and determining whether to make an extended supervision order and in formulating the conditions of Mr Tabbah’s supervision;

15. My satisfaction that Mr Tabbah must be kept under ongoing supervision on relatively stringent conditions, in order to take proper account of the need to ensure the safety of the community when he is supervised in the community, given the nature of the risks which he continues to pose; and

16. The impact on Mr Tabbah of those conditions, that being a relevant consideration to which regard must also be had in formulating the conditions, but not at the cost of the community’s safety.

How the dispute about the conditions must be resolved

8. The issues lying between the parties about the disputed conditions must be approached in light of the explanation in Lynn v State of New South Wales [2016] NSWCA 57 of the Court’s role in imposing conditions of ongoing supervision under the Act.

9. Such conditions being imposed for the purpose of diminishing the risk which persons like Mr Tabbah pose to an acceptable level. That involving a balancing exercise, “in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”: at [129]. Such an exercise involving possible intrusions on his liberty and privacy, that being a relevant consideration in ensuring that unjustifiable conditions are not imposed upon him.

10. It was whether the disputed conditions were unjustifiable, as Mr Tabbah contended, given the assessment of the risk of further serious violence which he poses, considered in light of their intrusiveness, his mental health, the consequences of any breach of the conditions and the paramount consideration, the safety of the community, which had to be resolved.

The nature of the very high risk of further violent offending which Mr Tabbah poses

11. These issues had to be determined in light of the nature of the risk Mr Tabbah poses. That was established by the agreed facts; the opinions of the experts, which were not challenged; the evidence he gave and that which other evidence, including documentary evidence, established.

12. Relevant aspects of the amended facts which the parties agreed for the final hearing were:

“Background

5. The defendant was born on 5 November 1989 and is presently 35 years old. He has been in continuous custody since 6 March 2012.

6. …

7. ….

Earlier offending

8. The defendant has a lengthy criminal history commencing as a juvenile. …

9. As an adult the defendant's offending has comprised an offence of robbery armed with an offensive weapon (when aged 18) and assaults against law enforcement officers (including wounding).

10. The defendant's most serious conviction has been for manslaughter, being the Index Offence.

11. The defendant has exhibited serious behavioural issues while in custody, including for assault and threatening conduct towards correctional staff. [3] As a result of his poor custodial behaviour, the defendant has been managed as an Extreme High Security inmate and has been placed in segregation for periods of time throughout his sentence. [4]

The Index Offence

12. As noted above, the Index Offence of manslaughter constitutes a serious violence offence under the Act, as defined under s 5A of the Act.

13. The Index Offence occurred in December 2011, shortly after the offender turned 22. On 7 May 2014, following a jury trial, the defendant was convicted of the Index Offence. The offending occurred in circumstances where the defendant, and his co-accused, Wassim Tiriaki, attended the victim's home with intent to rob him. They both waited outside of the lounge room window. When the victim entered the lounge room, a firearm was discharged which struck the victim in the chest, fatally wounding him. The defendant and Mr Tiriaki subsequently fled the scene, and disposed of various items which would have assisted the planned robbery. [5]

14. A jury found the defendant not guilty of murder but guilty of manslaughter. Mr Tiriaki was found guilty of murder.

15. On 10 December 2014, Schmidt J sentenced the defendant to a term of imprisonment of 14 years commencing on 6 March 2012 (expiring on 5 March 2026), with a non-parole period of 10 years (which would have expired on 25 March 2022).

16. On 30 December 2019, the defendant successfully appealed the severity of his sentence in respect of the Index Offence (Appeal Proceedings). The New South Wales Court of Criminal Appeal (Bathurst CJ, Johnson and Fullerton JJ agreeing) quashed the defendant's original sentence and resentenced him to a term of imprisonment for 13 years commencing on 6 March 2012 (expiring on 5 March 2025), with a non-parole period of 8 years and 6 months (which expired on 6 September 2020).

17. On or about 26 May 2021, the defendant sent a letter to Mr Tiriaki. The letter contained an admission by the defendant that he - and not Mr Tiriaki - had been the principal shooter in the Index Offending. [6]

18. On 29 March 2023, Mr Tiriaki successfully appealed his conviction, and a re-trial was ordered. The defendant gave evidence in Mr Tiriaki's appeal proceedings to the effect that he - Mr Tabbah - was responsible for the fatal shot which caused the victim's death.

Further Offending in Custody

19. On 22 May 2015, the defendant was sentenced in the District Court of NSW for a further offence of wounding a law enforcement officer (not police) contrary to s 60A(3) of the Crimes Act 1900 (Custodial Offence).

20. The Custodial Offence occurred just over a month following his remand in respect of the Index Offence. The victim was a First-Class Correctional Officer who had shortly before the assault, become involved in a heated verbal exchange with a group of inmates, not including the defendant. The officer admitted in his evidence that he "descended to their level" and "responded in kind". [7]

21. The circumstances of the offending were that when the defendant was being led to a truck, he approached the victim, raised his handcuffed hands and forcefully brought them down on the victim's nose. [8] The defendant told a psychologist that the assault followed the victim making disparaging remarks regarding his ethnicity. [9] However, the sentencing judge was not satisfied of this on the balance of probabilities. [10]

22. The defendant was sentenced to a term of imprisonment for 3 years commencing on 5 September 2021 (expiring on 4 September 2024), with a non-parole period of 2 years in respect of the Custodial Offence. That sentence was partially accumulated on the sentence imposed in respect of the Index Offence.

23. The severity of the sentence imposed in respect of the Custodial Offence was also considered in the Appeal Proceedings. The Court of Criminal Appeal affirmed the length of the sentence and the non-parole period but varied the commencement date. The defendant received a term of imprisonment of 3 years commencing on 6 March 2020 (which expired on 5 March 2023), with a non-parole period of 2 years (which expired on 5 March 2022).”

13. Since his release Mr Tabbah has also entered a plea to an offence of causing actual bodily harm when he assaulted a correctional officer before his release, for which he is yet to be sentenced. There is no issue that he is at risk of having a further custodial sentence imposed upon him for that offence.

14. As a result of that and another charge, Mr Tabbah served his full sentences for his prior offending, without release to parole. On release he was detained again, following a successful detention application granted by the Local Court in March 2025. He was later that month granted bail by this Court, with the result that he is presently subject to both his conditions of bail and the interim supervision order, both of which he appears to be complying with.

15. Mr Tabbah thus has an obvious incentive not to breach the conditions of his bail or of his supervision order.

16. It is also relevant that Mr Tabbah continues to defend the other charge laid under s 60A(2) of the Crimes Act 1900 (NSW) of assaulting a law enforcement officer in execution of his duty, inflicting actual bodily harm, also before his release. That officer having been seriously injured, it is alleged, when Mr Tabbah punched him. That attracting a maximum penalty of 7 years.

17. Mr Tabbah has been assessed as meeting the diagnostic criteria for intermittent explosive disorder, antisocial personality disorder, post-traumatic stress disorder or complex post-traumatic stress disorder, as well as attention deficit hyperactivity disorder.

18. In custody Mr Tabbah successfully completed various relevant courses and since his release has engaged meaningfully with a psychologist as part of a maintenance program which he is pursuing in the community.

19. Mr Tabbah has still been assessed as falling in the high-risk category for violent offending relative to other adult male violent offenders, by two of those who have assessed him, using various tools explained in their reports. Before his release by the senior psychologist, Mr Ardasinski and since Lonergan J’s order, by the clinical and forensic psychologist, Dr Youssef. The other expert, the clinical and forensic psychologist Ms Kocak, assessed Mr Tabbah as falling in risk level IV of the five VRS risks she assessed. She concluded that he was at elevated risk of future, but not imminent violence.

20. The basis of these opinions, about which there was no issue, rested not only on examination of Mr Tabbah, but a consideration of his difficult personal, medical and offending history since childhood. They need not be further explained at this point, but I will return to them in the context of the disputed conditions.

21. Also in evidence are notes of those who have had supervision of Mr Tabbah in the community as the result of Lonergan J’s orders, as to their ongoing interactions with him and his compliance with his current conditions of supervision.

Schedule of Movements

22. The conditions which the State proposed were:

“7. If directed, you must provide a schedule of movements.

8. If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

9. You must not deviate from your schedule of movements except in an emergency.”

23. Before Lonergan J it had been agreed that Mr Tabbah had to wear a monitoring ankle bracelet. There is no dispute that this condition must continue. In dispute at the interim stage were various of the conditions of his supervision, including the provision of a schedule of his anticipated movements.

24. Her Honour accepted Mr Tabbah’s case that the schedule condition the State proposed would involve an excessive level of supervision upon his developing skill in exercising his basic autonomy as a member of the community in a responsible fashion. Further, that criminalising any departure from the schedule he proposed, ran the risk of interfering with that process from the outset, which would be counter-productive to his rehabilitation and not protective of the community: at [41]-[45].

25. Her Honour found that the main risk factor for Mr Tabbah was sudden impulsive anger. Her Honour was not satisfied that the imposition of a requirement for a schedule of movements did anything at all to address that risk and if anything, it was a millstone to his rehabilitation, without any real purpose: at [45].

26. The result is that at present Mr Tabbah is not subject to a condition which requires his provision of a schedule of movements.

27. On the State’s case that makes his supervision more difficult and that such a condition would make his ongoing supervision more effective over the term of the final order, given how his movements are tracked by his ankle monitoring. This having been explained by the evidence of Mr Banton, a High Risk Offender Applications and Operational Governance Officer, whose evidence was not challenged.

28. The result was that a schedule of movements would help better manage the risks Mr Tabbah poses. The nature of those risks has now been assessed by the two experts, and Mr Banton has explained the real risk of a deterioration in Mr Tabbah’s compliance with his supervision conditions, a risk often observed when individuals subject to ongoing supervision remain in the community

29. Mr Tabbah’s case was still that the scheduling which the State now proposed was unnecessarily intrusive, given his successful compliance with his conditions to date, as well as counterproductive, given his ongoing mental health problems. As well as putting him at unnecessary risk of criminalising even trivial departures from an agreed schedule.

30. What was so put in issue has to be considered in light of the expert evidence, which establishes that Mr Tabbah does not only pose a risk of reacting violently as the result of sudden impulsive anger in the community, but also as the result of interaction with criminal peers, as well as the evidence about how the monitoring of his conditions operates.

31. Mr Banton explained how supervision conditions were implemented and how electronic monitoring typically works together with a schedule condition, in order to help foster and monitor compliance with the Court’s order. It being unusual for one condition to be imposed without the other. The example given being a schedule which indicates that on a Thursday evening the person the subject of the order usually attends TAFE in Randwick, but the electronic monitoring equipment shows him to be at the Pitt St Mall, that then enabling the monitoring team to take appropriate action.

32. How the schedule supported random surveillance was also explained. As was how it could provide support those under supervision, particularly those confronting issues of impulsivity and reactive behaviour.

33. Mr Banton also explained how the schedule condition was approached flexibly, by phone contact with the monitoring room and the condition typically being relaxed over time, to less restrictive monitoring.

34. At the hearing the imposition of a trigger for the condition coming into effect was floated, as had been considered in State of NSW v Vu (Final) [2021] NSWSC 1282 at [31]-[35]. There Bellew J imposed conditions which included at [31]:

“If a DSO forms a reasonable suspicion that the defendant has breached a condition of his ESO or committed any other criminal offence, the DSO may direct the defendant to provide a weekly plan (called a schedule of movements) and to provide this 3 days before it is due to start.”

35. After further discussion, the State finally pressed a trigger condition which provided:

“If your risks are assessed to have escalated, or you are assessed to have regressed, a DSO may direct you to provide a schedule of movements for approval.”

36. Mr Tabbah still opposed such a condition, which he argued was too vague, subjective and unfair, particularly given the criminal consequences of any breach. He proposing:

“7. If a DSO has a reasonable belief that you have committed a criminal offence which occurred after the imposition of this ESO, and that DSO directs you to do so in writing setting out the basis for that belief, you are to provide to a DSO within three days a summary of your anticipated movements over the next week, which includes only:

a. Where you intend to travel and for what purpose.

b. How you proposes to travel to and from any location.

c. When you intend to do so.

8. You must not deviate from the summary provided unless:

a. it is an emergency;

b. not doing so would put you in breach of another condition of the ESO; or

c. You notify your DSO of your change in plans before doing so or as soon as reasonably practicable.”

The parties’ cases

37. The State contended that the Court would accept that the discretion which the scheduling condition proposed would not be exercised capriciously and only when necessary, that according with the documented approach which had been adopted to date. The level of supervision Mr Tabbah required was re-assessed bi-monthly in light of his risk profile and compliance, at a meeting with police and psychology stakeholders. With decisions about whether he could progress to the next stage of supervision or needed to regress, if there were demonstrated signs of increased risk of serious offending, then being made.

38. The proposed condition supported his rehabilitation, by permitting regular discussion with him about his movements, that helping to create a structure to aid his reintegration, as he had already sought from his supervising officer, that having been important for him, he having spent the majority of his adult life in custody.

39. Despite his adherence to his interim conditions, it could not be assumed that this would continue over the entire course of his 2-year supervision order. The proposed condition would assist Mr Tabbah by providing those who supervised him with the opportunity to deal with developing regressions in his behaviour or identified escalation of his ongoing risks, also making his electronic monitoring more effective in tracking his movements.

40. The reality was that if he was directed to provide a schedule of movements, he would be supported with compliance. Such schedules usually being prepared collaboratively and being able to operate flexibly, in the way Mr Banton had explained, utilising phone contact when the need arises.

41. The risks which the experts had identified Mr Tabbah posed made the condition important, they not being not limited to sudden explosive anger, but also instrumental violence that is planned, goal directed aggression used to achieve a tangible benefit such as material gain, status or retaliation of a kind which had been involved in his manslaughter offence. It having been committed in company with an associate to whom Mr Tabbah wrote after he had served his offence, admitting that it had been he who had shot the gun which killed their victim.

42. Mr Tabbah’s history and assessments thus established a real need to permit him to be directed to provide a proposed statement of his proposed movement, particularly if an escalation of the risk he posed was detected by those who supervise him. For example, because of association with antisocial peers.

43. In final written submissions it was urged that the proposed trigger struck the appropriate balance between a discretion to respond to changes in Mr Tabbah’s behaviour in a measured way, given the high risk which he posed. While ensuring that it was only exercised when he had demonstrated a clear regression in conduct, which warranted stricter supervision.

44. Mr Tabbah’s case was that given his mental state and the views which the experts had arrived at about the schedule condition, it should not be one which the Court would impose. The evidence did not establish what support the State had in place for such a condition, but it did establish that there would be no breach of a condition which did not result in a response, even if it be a warning. What the proposed condition imposed on Mr Tabbah was thus only likely to have an adverse effect on him and increase the likelihood of him committing an offence.

45. Reliance was placed on Dr Youssef’s opinion that caution should be exercised in enforcing conditions with excessive rigidity. That they were so enforced was argued to be established by every breach resulting in a response, even if it be only a warning. Even a discussion about a breach being problematic in Mr Tabbah’s case, given his institutionalization and PTSD and the need to agree to a schedule of movements requiring greater engagement with those who supervise him, in order to discuss every aspect of his life.

46. In final written submissions it was also contended that the trigger proposed by the State was countertherapeutic and should not be imposed. A reasonable belief was argued to be a more appropriate trigger than a reasonable suspicion, belief providing a greater degree of certainty, albeit still short of actual knowledge and that being “the usual standard when coercive action is to be taken”. The basis of that submission was not disclosed.

47. The wording Mr Tabbah proposed was also argued to be necessary, the evidence establishing that he had already admitted committing an offence for which he awaits sentence and is charged with another.

The conditions which must be imposed

48. I am unable to accept the case either party advanced and have concluded that while there must be a trigger for the requirement that Mr Tabbah provide a schedule of movement, it should be in somewhat different terms to that which they proposed. That paying appropriate regard to the paramount consideration, the safety of the community, as well as Mr Tabbah’s pursuit of rehabilitation and concerns which he legitimately raised. Those conditions being:

“7 If your DSO forms a reasonable suspicion that you have breached one of these conditions of your supervision or have committed a further criminal offence, he or she may direct you in writing to provide schedules of your proposed movements for approval.

8 If you want to change such a schedule after it is approved, you must seek approval by a DSO, 24 hours before the change takes effect, unless a DSO approves a shorter period.

9 You must not deviate from your approved schedule except in an emergency or when not doing so would put you in breach of another condition of your supervision. In such a case you must notify a DSO within 24 hours of the circumstances which caused you to deviate from your schedule.”

49. I do not accept that such a condition will have the adverse consequences raised by Mr Tabbah, despite his evidence and that of Mr Chami, a friend who has been supporting him since his release. He having explained his experience of the pressure Mr Tabbah’s mental health issues place him under and his concern that a schedule of movement condition would be too strict for Mr Tabbah.

50. If Mr Tabbah’s mental state was truly as fragile as was submitted, he ought not to be in the community under supervision, given the high risk of further serious violence offending which the evidence establishes he continues to pose. But such fragility is not supported by the experts’ opinions or his own evidence.

51. I consider that the condition I will impose reflects an appropriate balance between all that arises to be considered about what the parties have put in issue. Further, that it pays necessary regard to ensuring the safety and protection of the community, as well as encouraging Mr Tabbah to pursue his rehabilitation, while under appropriate supervision.

52. In his affidavit Mr Tabbah explained how he came to admit that he, not his co-offender had shot their victim; how he has sought to turn his life around, by abandoning his past pursuit of violent offending; and what he is pursuing in the community, with various assistance he is receiving there, having worked hard to change his mindset. He no longer believing in the criminal mentality that once defined his life and desiring now to live in the community, doing good and making positive contributions. He had adhered to his conditions without the need for scheduling, which he thought could now only set him back, given the independence which he had achieved, which he cherished.

53. Mr Tabbah’s views are consistent with his conduct since release, which I consider should be encouraged and supported. But necessary regard must also be paid to the real risks which the evidence establishes that he continues to pose, given the paramount consideration which must be given to the safety of the community, despite his good intentions.

54. The notes in evidence also establish ongoing, seemingly supportive discussions between Mr Tabbah and those who supervise him about his conditions of supervision and what they require, discussions which he has initiated and pursued. They have included what he needed and proposed to do in the community, for which he sought various assistance and support. As well as steps he has taken, including those which he feared involved a breach of a condition of his supervision, and how he has reacted in various situations with which he has been confronted, which he wanted to discuss.

55. There is no evidence that Mr Tabbah has been given a warning, even when it was considered that there had been a minor breach of the strict requirements of a particular condition, which were discussed with him and explained. That there have been such responses to problems of that kind, does not support the submissions advanced about the negative consequences of there having to be a response to every apparent breach of a condition imposed on Mr Tabbah.

56. Nor is there evidence that such discussions have resulted in the adverse consequences submitted to be likely, if he had to discuss a schedule of movement, given his ongoing mental health problems.

57. The notes rather reflect Mr Tabbah’s growing confidence in being in the community and in fact himself successfully seeking the type of support which discussions and agreement about a schedule of movements would have involved, had he been subject to such a condition to this point.

58. What the condition which will be imposed thus provides for is the imposition of the requirement to provide a schedule of his movements, if those supervising him consider that he requires such support, the trigger having been activated by the formation of a reasonable suspicion that he has departed from his intended course, by breaching the conditions of his supervision or committing a further offence. I do not accept that the trigger should be a reasonable belief, given what all of the evidence establishes.

59. The imposition of such a condition being supported by the expert’s opinions. Mr Ardasinski’s report including that:

60. Mr Tabbah demonstrated good insight into his mental processes and risk factors for aggression and violence;

61. His history included having felt angry since he was 12 years of age and his aggression having led to his expulsion from school in his early teens, as well as a long criminal record, with a history of aggression even while in juvenile detention and his criminal offending, even in adulthood having been almost exclusively violent in nature;

62. His manslaughter offence having been the result of planning with his co-offender with whom he went to the victim’s house, where Mr Tabbah killed him by a single shot to the chest, but there having been no evidence of it having been a premeditated killing;

63. Mr Tabbah had accepted full responsibility for the shooting, as the shooter, an acknowledgment he had first made during treatment in custody, that reflecting an appropriate level of remorse for his violent offending;

64. His criminal record including numerous convictions for assault and violence, including after his incarceration in 2012, but his violent incidents having decreased markedly since 2021, after he completed high intensity programming in custody;

65. Mr Tabbah having some critical traits which contributed to his risk of committing a further serious violence offence and remaining vulnerable to behavioural outbursts, due to his failure to control his aggressive impulses. Which may lead him to physically assault others, including officers who he perceives to be disrespectful or intruding into his personal space, without due regard to his hypervigilance;

66. In his VOTP treatment report it having been identified that he was likely to engage in expressive violence in response to perceived threat, provocation or interpersonal conflict. That could occur in the context of new or stressful situations where he was unfamiliar with the individuals involved, when overwhelmed by stressors, if he associates with past antisocial peers, or by engaging in violence on behalf of criminal peers, with whom he is more likely to reconnect if he returns to high risk locations or experiences prolonged feelings of social isolation.

67. He is also at increased risk of reconnecting with such peers in the longer term, if he becomes overconfident in his reintegration;

68. His judgment may be impaired if he experiences feelings of intense loyalty or attachment to such individuals;

69. Mr Tabbah would benefit from post release participation in a VOTP program and ongoing access to a psychologist, to help him access the ongoing support he requires;

70. Mr Tabbah described now accessing a criminal mentality only when he has a bad experience and a bad mental health day;

71. Future reactive violence was more likely than a return to his past offending in company with antisocial peers, given his own acknowledgments and understanding;

72. With ongoing engagement in interventions Mr Tabbah’s risk factors should continue to decrease in severity, but he would confront situations which will elevate his risk for violence;

73. Mr Tabbah posed a high risk of committing a serious violence offence which could not be managed in the community without any supervision order;

74. Despite his positive progress he had continued to commit such offences while still in custody;

75. He is severely institutionalised and requires the maximum support possible for his reintegration, which would give him the greatest chance to succeed under supervision, he himself acknowledging that he did not feel ready to be released;

76. The highest risk situation he would have to confront was in custody, given the hypervigilance he had developed to custodial staff;

77. With an appropriately supportive and minimally invasive form of community supervision, which still includes adequate mechanisms for risk management and containment, Mr Ardasinski believed that with sufficient preparation for it, Mr Tabbah’s risk could be managed on a supervision order. Mr Tabbah himself had suggested that custody was a high-risk place for him to be, and to remain: “In the community I can choose my environment, in here [custody] I can’t. Not to do with community. I have more options out there.”; and

78. The most important strategies Mr Ardasinski identified included non-association with antisocial peers and “Scheduling– though this would need to be included only with significant supports to ensure the act of weekly scheduling is not unduly stressful”.

79. Ms Kocak’s report including that:

80. Mr Tabbah’s reported ongoing understanding of his criminogenic needs and risk factors related to his violent offending both in the community and in custody and the need to address them, in order to lower his chances of future violence and recidivism;

81. Greater freedoms he had been given in custody, which were terminated as the result of his behaviours, which had resulted in internal charges for assault of another inmate as well as charges for assaulting officers;

82. His engagement with programs and psychologists in custody and his resulting growing insight into his emotional triggers, thought patterns and beliefs that contributed to his aggressive behaviours;

83. His progress in identifying red flags and early warnings of emotional spiralling;

84. How he was adjusting to a return to the community which he had initially found overwhelming and his positive response to the supervision he had been receiving;

85. His explanation of the causes of his impaired function, including having been violently assaulted while in juvenile detention by officers and other trauma he had experienced in adult custody, as well as his chronic pattern of irritable behaviour and angry outbursts towards others and his overwhelming difficulties in exerting mental control or attention to tasks, as well as symptoms of hyperactivity;

86. The violent approach Mr Tabbah had reported to problem solving, seeking excitement, exerting protection and establishing control, with the frequency and severity of his violence escalating, despite expressed remorse, empathy and a desire to change;

87. Conscious efforts he has made in the past 12 months to refrain from violence and how he now valued his freedom, which he did not wish to lose again, but recognising the continuing risk that he might respond to stressful or perceived offensive situations with violence;

88. His desire now to distance himself from criminal peers, with whom he had committed past offences, including his manslaughter offence, as part of resolving another drug dealer’s problems;

89. His current prosocial behaviour being conditioned on how others treat him, but he now understood that his response did not need to be violent;

90. That use of weapons had been a common feature of his past offending, including self-manufactured weapons in custody;

91. He was yet to consistently demonstrate a consideration of relevant information before responding to situations to which he tends to react impulsively, verbally or physically;

92. He had ongoing residual cognitive distortions which served to rationalise his aggression and behaviours as well as retained beliefs which could justify aggressive or risk taking behaviour, especially when combined with emotional overwhelm and impulsivity;

93. Recent case notes demonstrated a move towards meaningful behavioural change, improved self-regulation and a building repertoire of internal and external coping strategies;

94. He still required high intensity treatment and supervision directed at his criminogenic factors to reduce his risk of re-offending;

95. Consistent support would offer early intervention for warning signs;

96. The risk he posed was dynamic and subject to fluctuation over time in response to internal psychological factors and external situational influences;

97. Over time the trajectory of his risk was likely to decline with various ongoing support, but he required ongoing monitoring, especially of unresolved trauma or reactive thinking patterns which resurfaced or went unaddressed; and

98. A scheduling condition was “unlikely to add any value to Mr Tabbah’s risk mitigation particularly as his future risk is more likely to occur in a reactive or situational context.”

99. Dr Youssef’s report including that:

100. Mr Tabbah’s initial concerns focussed on his feelings of being overwhelmed, difficulties in adjusting to community living and challenges of his living situation;

101. He had a history of association with antisocial peers which has continued since age 11 and a history of anger and always fighting;

102. He has very strong hostility towards authority, given abuse he has experienced at the hands of those who have had authority over him;

103. He had never having been employed and had worked little in custody and what work he had, having come to an end as the result of an alleged serious assault;

104. The many triggers for anger which Mr Tabbah was able to describe, his two pathways to violence being to jump into situations that do not concern him and also responding to experiences of racism, injustice, disrespect and feeling trapped, which result in him lashing out and losing control;

105. The high risk situation he was living in after his release, which resulted in him struggling to manage his anger when others did not respect his requests to be left alone;

106. His focus now being on stability, safety and security and not returning to custody;

107. His history of violent offending including violence he told police had been pursued for fun and his explanation for such past offending having been the result of misplaced loyalty to peers with whom he had primarily committed his offences in early adolescence;

108. He not typically having been involved in planning, but having participated in the execution of offences. It having been important to him to use aggression to prove himself and maintain the reputation he had developed;

109. His behaviour having moved from bad to vicious in custody;

110. He identifying the environment he was in acting as a trigger, especially in custody and that experiences of perceived injuries, unfair treatment, racism, discrimination and witnessing others being treated unfairly were all factors which provoked him;

111. He no longer regarded associates as a risk factor, because he had distanced himself from them, even though in the past he had pursued crimes for others, being motivated by feeling connected and accepted;

112. He had made efforts in recent years to reduce his violence, only getting involved to attempt to break up others’ fights, despite having learned in the past that using violence was the only time he was listened to;

113. He had explained how he had threatened his co-accused, before their trial, but had come to feel guilt for the death he had caused and that spiritual advice had led him to confess the truth about his shooting, despite his approaching parole;

114. Mr Tabbah had 46 institutional misconduct charges, many of which involved violence and his resulting classification as a high security inmate, national security interest inmate and lengthy periods of segregation, his violence having led him to think that acting as an animal had been a good thing and having lost himself, as the result of the approach he had adopted;

115. The treatment programs he had participated in over the years, which had altered his thinking and approach, so that he could identify the risk factors which triggered his violence, even though the anti-social custodial environment was not conducive to his behavioural change;

116. His hope of changing further in the community, even though he found the prison environment easier to navigate;

117. Mr Tabbah did not have solid personal support or explicit plans for how he will develop such supports or a social network in the community;

118. It being expected that his compliance with conditions of supervision would be good if he felt supported, but otherwise he would disengage and resist supervision and/or treatment;

119. He also needed to develop practical coping skills, given the strong link between his violence and lack of coping; intensive therapeutic attention, as well as external supervision, which would be a valuable protective factor;

120. He continued to present a significant risk of violent recidivism given his high loading of dynamic risk factors, history of violent behaviour, ongoing symptoms and clinical issues;

121. Antisocial affiliates remained one dynamic risk factor, even though he found it difficult to accept that he could encounter high risk situations when he associated with anti-social peers again, given that they knew not to approach him;

122. His most likely pathway to violence was in reaction to a perceived threat or other behaviours deemed to be unjust to himself or others, with a physical violence response likely, as well as use of an object as a weapon, a response which might require him to be subdued;

123. Mr Tabbah could also await an opportunity to strike out, after a period of rumination;

124. A less probable pathway was an instrumentally aggressive act, the likelihood of which would increase if he associated with antisocial peers;

125. But his purpose could be to demonstrate loyalty, prove himself, solidify his sense of belonging, to recover a debt or gain financial benefit, to please others, or affirm his self-worth;

126. Likely victims including an unknown male in a retail setting, a service station or even in their home. He being then unlikely to act alone, but likely to be more violent in the company of others, potentially using a knife or gun and his violence resulting in actual bodily harm, possibly grievous or even fatal;

127. Association with antisocial peers being one of the most likely to escalate his rise of reoffending;

128. Over time his risk could decrease significantly, but that depended on the success of a range of identified measures, which necessitated his ongoing support and monitoring. That also helping to ensure that he remained engaged with treatment; and

129. The provision of a schedule of movements would provide oversight and accountability, as well as ensuring Mr Tabbah’s adherence to his supervision restrictions, avoiding high risk environments and associating with antisocial peers. It would also reduce impulsivity, encourage prosocial behaviour and support his engagement in constructive activities.

130. Given the nature, extent and seriousness of all of Mr Tabbah’s violent offending over the course of many years, even in very recent times in custody where he was under much greater supervision than he is in the community and the ongoing risks which a return to associations with criminal peers poses for him, I am satisfied that the risk which he poses could not safely leave him subject to an electronic monitoring condition, without the information provided by the scheduling condition I will impose.

131. Its imposition is triggered by his future conduct resulting in the formation of a reasonable suspicion by those responsible for his ongoing supervision, that he had breached the conditions of his supervision or had committed a further criminal offence. That, I am satisfied, strikes an appropriate balance between all that must be considered, including his approach to compliance with his conditions to date, his mental health and other challenges and the very serious risks which he poses, which puts the community’s safety at risk.

Non association

64. The condition in issue was 26(c), which must be considered in its context:

“25. You must not associate with any person specified by a DSO.

26. Without limiting condition 25 you must not, without the prior approval of a DSO contact and/or be in the company of any person:

a) who you know is consuming or under the influence of illegal drugs; or

b) is currently held in custody; or

c) who you know to have a criminal history.”

65. Condition 26(c) was not in issue before Lonergan J. It resulted from the report of Dr Youssef, her view being supported by the opinion of Mr Banton, that it would provide Mr Tabbah with an additional layer of support in his prosocial reintegration into the community, while also allowing appropriate flexibility in his supervision.

66. The condition finally pressed was:

“26 You must not, without the prior approval of a DSO contact and/or be in the company of any person:

a) who you know is consuming or under the influence of illegal drugs; or

b) is currently held in custody.

26A You must notify a DSO within 24 hours of making contact with any person who you know to have a criminal history (and provide the DSO with the name of that individual).”

67. Condition 26A was still opposed, but if it were to be ordered, Mr Tabbah argued that it should provide:

“26A You must notify a DSO within 48 hours 24 hours of making contact with any person who you know to have a criminal history (and provide the DSO with the name of that individual if you know that person’s name). This excludes incidental contact in a public place with a person who you know to have a criminal history.”

The parties’ cases

68. The State’s case was that this condition made it clear to Mr Tabbah that if he knows that an individual has a criminal history, he should avoid contact with him or her. That helping to maximise his prospects of rehabilitation, minimise the scope for his re-offending and assisting his successful reintegration into the community.

69. The revised condition was submitted to address the concerns which Mr Tabbah had advanced at the hearing.

70. It was the impracticality of what the condition originally proposed which was emphasised for Mr Tabbah, who also argued that it was unnecessary, given the power which condition 25 gave, to require him not to associate with particular persons.

71. Examples of potential problems given including Mr Tabbah being at the gym with someone who mentions a past driving offence. The schedule of movement condition not permitting Mr Tabbah to leave the gym, without speaking to the supervisor, either to permit departure or ongoing contact with that person.

72. In final written submissions a key concern raised was Mr Tabbah still residing in temporary boarding house style accommodation where he is likely to encounter those with criminal records. This being better addressed by the condition which he proposed.

The condition the State pressed must be accepted

73. On all the evidence I have explained, I have concluded that the conditions the State urged should be imposed.

74. The supervision records indicate that there is a real likelihood of Mr Tabbah coming into unplanned contact with people who may have a criminal record. It seems to me that the disputed condition has a useful protective purpose, requiring Mr Tabbah to disclose to the DSO if he makes contact with someone who he knows has a criminal record, in order that consideration can be given to whether there is a need to ensure that there is no further contact with him or her.

75. Mr Tabbah can and does make contact with those who have to supervise him by phone. Why he would require more than 24 hours to advise of his contact with a person who he knows has a criminal record, is thus not apparent. Nor does disclosure of the name of such a person appear to be onerous.

76. Given the risk of further serious violent offending which Mr Tabbah’s contact with criminal peers is undoubtedly likely to pose for him, the extent of which he does not seem to appreciate sufficiently, such a report would plainly be more protective, both of the community and Mr Tabbah, if it was made within 24 rather than 48 hours. That will also permit a non-association direction to be given under condition 25 promptly, if that is assessed to be required.

77. Why the requirement to make such a report should be removed if the contact is made in a public place is also not apparent. Nor is what is meant by “incidental contact”.

78. The condition needs to be clear so that it can be understood in the same way both by Mr Tabbah and those who have to supervise him, given all the potential consequences of its breach. They ranging from a discussion with a supervisor to his commission and conviction of a criminal offence.

79. Further, public places would include, for example, a restaurant or café, public transport, a park, or a place where a sporting event may be conducted, in all of which the risk of Mr Tabbah engaging in a violent assault on others is plainly possible. Particularly if he is in the company of criminal peers, given all of the circumstances and triggers which may result in his pursuit of such behaviour, when in their company.

80. It follows that the condition Mr Tabbah proposed cannot sensibly be imposed upon him as a condition of his ongoing supervision, it not paying sufficient regard to the paramount consideration, the safety of the community.

Orders

81. The State should now provide final orders in terms which reflect what I have concluded by 4pm on 26 May 2025, whereupon they will be entered.

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