State of New South Wales v Taleb

Supreme Court of NSW|2022-12-12|Before: Yehia J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2022/00295920

Introduction

Mr Moudasser Taleb (the defendant) was born in November 1995. He is an only child born of his parent's union and has at least one stepbrother. He was raised in South-West Sydney. His father abandoned the family when he was a one-year-old child, and he was raised by his mother who suffered from multiple sclerosis. By 2016, her condition was extremely debilitating. In 2014, the defendant was scheduled and held overnight at Bankstown Hospital for mental health review. After his discharge from Bankstown Hospital, the defendant became more religious, and his interest became more "obsessive and included a belief in radical Islamism and support of the Islamic State or "ISIS". [1]
In January 2017, the New South Wales Joint Counterterrorism Team (NSW JCTT), Sydney, commenced an investigation (Operation Tekapo) in relation to the defendant. The investigation involved various forms of surveillance, including telephone intercepts and physical surveillance. The investigation extended to the use of an Under Cover Officer (UCO). On 15 June 2017, the defendant attended Sydney International Airport where he anticipated, on the basis of his conversations with the UCO, that he would receive a plane ticket to Europe, from where he would be facilitated to travel to Syria to fight with the Islamic State. [2]

Summary of Facts

The plaintiff's Summary of Facts is before me as an aide memoir. Although the Summary of Facts is not agreed, it is accepted on behalf of the defendant that the Exhibits contain the evidentiary material from which the Summary of Facts is prepared. I am satisfied that the contents of the Summary of Facts are supported by the evidence.
The Summary of Facts detail a number of charges and convictions in 2015 and 2016 that partly relate to incidents of domestic violence by the defendant against his mother. It is not necessary to set out those details in this judgment. Relevantly, the conduct which gave rise to the defendant's arrest in respect of the Foreign Incursion Offence can be summarised as follows:

Met, planned and consulted with a person who he believed could assist him to travel overseas;
Participated in long-distance training exercises, wearing walking boots and carrying a backpack;
Purchased thermal tops, a solar powered phone charger, and a sleeping bag;
Purchased military style clothing, gloves and a belt;
Attempted to send $300 to a person he believed was a contact in Syria he could facilitate his travel there;
Attempted to obtain money on loan from a relative; and
Attempted to depart Australia on a flight from Sydney International Airport, being reckless to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code.

The particulars of the offence against s 119.1 of the Criminal Code were that the defendant, as an Australian citizen, would enter a foreign country, namely, Syria, with intent to engage in hostile activity in that, or any other foreign country, with the intention of achieving one of the objectives set out under the definition of "engage in a hostile activity" included in s 117.1 of the Criminal Code.

Current Status

The defendant was released from custody on 9 December 2022 pursuant to the IDO imposed by Justice Campbell. He was held in the Metropolitan Remand and Reception Centre, after being transferred from Mid North Coast Correctional Centre on 8 October 2022.
Until 15 October 2022, the defendant was in custody serving an aggregate fixed term sentence of 18 months' imprisonment in relation to five offences, contrary to the Firearms Act 1996 (NSW) (Firearms Act), committed while the defendant was subject to a Firearms Prohibition Order FPO" under the Firearms Act (the index offences).
On 21 April 2021, in breach of the FPO, the defendant was found to be in possession, in his bedroom, of a loaded sawn off double barrel shotgun. Shotgun shells were also located at his home. The items were found during a search executed under the FPO. The defendant was admitted to custody on 21 April 2021. He was released from custody on 9 December 2022.
Following a successful appeal against sentence in the District Court on 16 September 2022, at which the defendant's sentence was reduced from an aggregate sentence of 24 months' imprisonment, expiring on 15 April 2023, the sentence for the index offences expired on 15 October 2022.
The defendant is concurrently serving a sentence of a three-year Community Corrections Order, due to expire on 6 June 2025 (the CCO). The CCO was imposed on 7 June 2022, following the revocation of the RRO originally imposed by Justice Hamill on 14 June 2019.

Defendant's Background

The defendant is 27 years of age. He was born on 23 January 1995 at Bankstown Hospital to his parents, Azzam Taleb and Angel Merhab, both of Sunni background and born near Tripoli in Lebanon. The defendant's father worked as a security guard for a time, however, left the family home sometime after the defendant's first birthday.
While the defendant was an only child to his parents, he has a younger half-brother on his mother's side, and a half brother and sister on his father's side. The defendant had varying degrees of contact with his father over the years. At the time of his release from custody in 2019, the defendant's father was living in Yagoona and their relationship was positive. There are reports that the defendant's father suffered from schizophrenia.
Ms Merhab had other relationships and her partners caused dysfunction in the family unit during the defendant's adolescence. Ms Merhab suffered from a severe form of Multiple Sclerosis (MS), and the defendant's maternal half-brother was placed in foster care at a young age due to his mother's inability to care for him.
The defendant completed his schooling in South-West Sydney, where he grew up, attending Bankstown West Public School, Birrong Boys High School and Bankstown Senior College. The defendant's progression through school was uneventful - he was good at Maths and English and played Rugby League. In Year 10, the defendant was asked to leave Birrong Boys High School for behavioural and attendance reasons. It was noted at the time that Ms Merhab's illness was quite severe, and the defendant had moved between various family members.
The defendant was taught to read and write Arabic by his grandparents and attended a weekend Arabic school in his younger years. The defendant was raised Muslim, however, was never particularly devout until after his hospitalisation in 2014.
After school, the defendant worked in demolition, tree lopping and construction. He commenced TAFE studies in arboriculture, however, ceased those studies due to his caring responsibilities.
In his early twenties, the defendant was married for a very short time. Problems with the defendant's wife's family precipitated the couple's separation. Two miscarriages also placed additional strain on the relationship.
At the time of his arrest in 2017, the defendant played a significant role as his mother's full-time carer. He had undertaken this for over five years, residing with Ms Merhab in Department of Housing accommodation in Revesby and receiving a carer's benefit from Centrelink. Ms Merhab's condition had deteriorated by this time and had become extremely debilitating. As a result, the defendant's social life was extremely limited.
Ms Merhab passed away on 23 September 2019. At this time, the defendant was in the community and had been visiting her daily at her aged care facility. Ms Merhab gave evidence at the trial for the Foreign Incursion Offence, with his Honour noting that: "the bond between mother and son is very strong". [5]
The defendant has had a relatively limited history of drug and alcohol use. The defendant consumed alcohol several times in his teenage years and smoked cannabis, reportedly as a relief from the stress of caring for his mother. On 23 March 2014, at 19 years of age, the defendant was admitted to Bankstown Hospital with suicidal ideation after drinking two bottles of vodka in a short period. The defendant had not had any previous mental health engagement. The event has been described as a "significant and life-changing event in [the defendant's] life" and the hastening of the defendant's religious beliefs. [6] As a result, the defendant ceased alcohol use and, for a period, ceased drug use.
Following the defendant's release from custody on 14 June 2019, and after being sentenced to the RRO, the defendant resided with his paternal aunt, Aisha Taleb, and her family in the Bankstown area. Ms Taleb undertook the role of caring for the defendant, assisted in driving him to appointments, obtaining work for the defendant at her factory, assisting him with finances, TAFE study, and acting as a general conduit for information between Community Corrections, mental health services and the defendant.
The defendant has been subject to two periods of incarceration - from 15 June 2017 to 14 June 2019, and 16 April 2021 to 9 December 2022. On several occasions, the defendant was subject to segregation, including whilst as an involuntary mental health patient at the acute G Ward of Long Bay Hospital. On 18 September 2017, the defendant was transferred to Long Bay Hospital as a mentally ill person. It is noted that at this time, the defendant had been placed in segregation at the High Risk Management Correctional Centre (HRMCC) at least since 29 August 2017, as a result of his behaviour.
On 2 March 2019, the defendant was again transferred to Long Bay Hospital from the HRMCC via the MRRC as a mentally ill person. The defendant was subject to a segregation order whilst at the HRMCC, which continued whilst at the acute G Ward, until 16 May 2019. The defendant remained on segregation when he was returned to the HRMCC on 16 May 2019. His segregation order was revoked on 23 May 2019 after a period of over 3.5 months.
During his period of custody, pursuant to the IDO, the defendant has been primarily held at MRRC. While subject to the IDO, the defendant had a breach of discipline charge for assault. The report prepared by the Department of Corrective Services notes that another inmate was seen punching the defendant and that the defendant was removed from the situation by Corrective Officers. Despite being the apparent victim of an assault, the defendant was still found to have engaged in misconduct and punished.

Objectives of the Act

Section 3(1) of the Act states that the primary object of the Act: "is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community". Section 3(2) provides that: "another object of this Act is to encourage these offenders to undertake rehabilitation".
In Cheema v State of New South Wales [2020] NSWCA 190, the Court of Appeal noted at [81] that: "The legitimate purpose of the statute is to protect the community from unacceptable risks of terrorism offences."

Serious Terrorism Offences

"Serious terrorism offence" is defined in s 4 as an offence against Part 5.3 of the Criminal Code, for which the maximum penalty is seven, or more, years' of imprisonment. These offences include: 1. Engaging in a terrorist act (s 101.1 of the Criminal Code); 2. Providing or receiving training connected with terrorist acts (s 101.2 of the Criminal Code); 3. Possessing things connected with terrorist acts (s 101.4 of the Criminal Code); 4. Collecting or making documents likely to facilitate terrorist acts (s 101.5 of the Criminal Code); 5. Doing acts in preparation for, or planning, a terrorist act (s 101.6 of the Criminal Code); 6. Directing the activities of a terrorist organisation (s 102.2 of the Criminal Code); 7. Membership of a terrorist organisation (s 102.3 of the Criminal Code); 8. Recruiting for a terrorist organisation (s 102.4 of the Criminal Code); 9. Training involving a terrorist organisation (s 102.5 of the Criminal Code); 10. Getting funds to, from or for a terrorist organisation (s 102.6 of the Criminal Code); and 11. Providing support to a terrorist organisation (s 102.7 of the Criminal Code).
The Part 5.3 offences cover a very broad range of conduct and do not require the commission of an act of violence. Inclusion of such a wide range of conduct is consistent with the legislative intention underlying the Act, being the protection of the community. In Lodhi v R (2006) 199 FLR 303, at [63]-[70], Spigelman CJ noted that terrorism offences were directed to preliminary steps. His Honour said at [66] that: "Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
The plaintiff acknowledges that incitement to commit a terrorist offence is an offence against s 11.4 of the Criminal Code. Advocating the doing of a terrorist act, or the commission of specified terrorism offences, is an offence against s 80.2C of the Criminal Code. Both offences are outside Part 5.3 and are, therefore, outside the definition of "serious terrorism offence" in the Act. However, similar, or closely related, conduct might readily amount to a threat of action that falls within the definition of "terrorist act", or establishes one of the planning, preparation, recruiting or facilitation offences in Part 5.3.

Terrorist Act

Section 4 of the Act provides that "terrorist act" has the same meaning as given to the term in Part 5.3 of the Criminal Code, namely, as defined in s 100.1(1): "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. Elements of the definition of terrorist act (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
In considering the term "terrorist act", the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (Naaman (No 2)), at [33]-[34], construed the words "action" in paragraph (a) of s 101.1(1)(a) as including "actual or threatened" action. The Court concluded that (at [35]): "…Accordingly, for the purpose of assessing whether the threat of action is a "terrorist act", one asks whether the threatened action falls within subs (2) and does not fall within subs (3). Further, if action or threat of action is to be a terrorist act, it must also satisfy both of pars (b) and (c), and so the action must be done or the threat made with the intentions identified in those paragraphs."
The Court (at [34]) considered this to be consistent with the approach adopted in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33, at [44], per Gummow and Crennan JJ: "What is a 'terrorist act'? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of 'terrorist act'. This was introduced by the 2003 Act. A 'terrorist act' is defined as 'an action or threat of action' which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of 'advancing a political, religious or ideological cause'. Secondly, there must be an intention which is expressed in the alternative. The first alternative is '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'. The second is 'intimidating the public or a section of the public'. The reference to 'the public' is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in sub-s (2) of s 100.1. Action falls outside the definition if it be 'advocacy, protest, dissent or industrial action' and is not intended to cause serious harm that is physical harm to a person, or a person's death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (sub-s (3))."
Proceedings under the Act are civil proceedings. To the extent that the Act does not provide for their conduct, they are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: see s 50(1) of the THRO Act.

Statutory Pre-Conditions to the Making of an ESO

Having regard to ss 20 and 34, and Parts 2 and 3, of the Act, the Court may make an ESO against the defendant where, relevant to the present case, the following elements are satisfied: 1. The defendant is an 'eligible offender' within the meaning of the Act: see s 7 of the THRO Act; 2. The defendant is a detained offender, or supervised offender (or was at the time the original application was filed): see s 20(a) of the THRO Act; 3. The defendant is 'a convicted NSW terrorism activity offender', within the meaning of s 10 of the Act: see s 20(c) of the THRO Act; 4. The application is made in accordance with Part 2 or Part 3 of the Act respectively: see s 20(b) of the THRO Act; and 5. The Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision: see s 20(1)(d) of the THRO Act.

Section 7 Considerations - "Eligible Offender"

Section 7 of the Act defines an "eligible offender" to mean a person who is 18 years of age, or older, and who is serving (or is continuing to be supervised or detained under the Act after serving) a sentence of imprisonment for a "New South Wales indictable offence". Section 4(1) of the Act defines a "New South Wales indictable offence" to mean an offence against a law of the State for which proceedings may be taken on indictment (whether or not proceedings for the offence may also be taken otherwise than on indictment).

Section 10 Considerations - "Conviction NSW Terrorism Activity Offender": s 10

Section 10(1) provides that an eligible offender is a "convicted New South Wales terrorism activity offender" if: (1) The offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: (a) the offender has at any time been subject to a control order, (b) the offender has at any time been a member of a terrorist organisation, (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.
Section 10(1A) of the Act specifies an inclusive, non-exhaustive list of matters relevant to s 10(1)(c) in terms of what constitutes "advocating support for a terrorist act or violent extremism": (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.

Advocating Support

In State of NSW v Ibrahim [2021] NSWSC, Walton J provided the following summary of the authorities regarding the interpretation of the word "advocating" as used in s 10(1)(c) (at [70]-[74]): "[70] The THRO Act does not exhaustingly define "advocating" as used in s 10(1)(c): State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 ("Dunn") at [29] (per N Adams J). [71] Nonetheless, some additional observations may be made. Both s 10(1A)(a)(ii) and (iii) require that a comparison be made between the acts of the offender and the acts of a relevant person, group, organisation or ideology. [72] The expression "person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism" is found in both provisions. In Cheema, the Court rejected an argument that s 10(1A)(a)(ii) should be limited to using or displaying images or symbols which could reasonably be construed as advocating support for terrorist acts or violent extremism; or that the subjective intention of the person using or displaying the images or symbols should be imported into the subsection: see Cheema at [62]-[65], [82]-[85]. [73] There is no requirement or specification in s 10(1A) as to when the relevant act of "advocacy" occurred. In Naaman No 2, there was evidence that the offender had placed a poster of Osama Bin Laden on his cell wall while in custody 17 years previously. Although it was unnecessary to determine the point, the Court of Appeal stated that, on one view, the THRO Act mandated that the offender was a "convicted NSW terrorism activity offender" by reason of s 10(1A)(a)(ii): at [26]. Further, in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [58], Bathurst CJ accepted that "the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism offender as a result of historical matters". [74] Section 10(2) makes clear that s 10(1)(c) applies "regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned". In other words, s 10(1)(c) "will apply irrespective of whether a person has been convicted of an offence connected with terrorism": Naaman No 2 at [22]."
"Advocate" is defined in the Macquarie Online Dictionary as, relevantly, "1. To plead in favour of; support or urge by argument; recommend publicly". In New South Wales v Elomar (Final) [2021] NSWSC 411, Hamill J observed at [8] that "[t]he concept of "advocating support" for violent extremism or a terrorist act encompasses a broad range of conduct". His Honour noted that "association" and "affiliation" for the purposes of the THRO Act are also defined broadly.
At [24] of Hardy v State of New South Wales [2021] NSWCA 338, Basten JA made these observations: "[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, qualifies as advocacy. The judge was not in error to so characterise the conduct giving rise to the s 31 offence."

Defendant's Position on the Application

The defendant accepts the statutory pre-conditions contained in ss 20(a) - (c) of the THRO Act are satisfied. There is no opposition to the first order sought in the amended summons, namely, that the defendant be subject to an ESO for a period of two years from a date to be fixed by the Court.
In order to grant the relief sought by the plaintiff, the Court needs to answer four questions: 1. Is the Court satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a further serious offence? 2. If so satisfied, is there any reason why the Court should exercise its discretion and not impose an ESO? 3. What conditions should attach to the ESO? 4. What is the duration of the ESO?
The defendant did not wish to make any submissions on the unacceptable risk question, the discretionary question, or the duration of any ESO. The primary area of dispute in this matter is the conditions that attach to any ESO imposed. The defendant opposes certain orders being made and/or seeks a variation of some of the orders, as set out in the written submissions filed on behalf of the defendant on 8 December 2022. The area of dispute involves five discrete conditions which will be addressed separately below.

Evidence Relevant to the s 25(3) Factors

Both Dr Dayalan and Mr Sheehan provided their reports on 20 November 2022. Both were of the opinion that the defendant did pose a risk of engaging in violent extremism, albeit one that could be managed through the proposed ESO conditions. Both also considered the existing CCO, FPO and FCTO to be insufficient to manage the defendant's risk.

Dr Dayalan's Psychiatric Report

In his report, Dr Dayalan concluded that: "[the defendant] does pose a risk of committing a serious terrorism offence in the future and this risk will be increased in the context of him becoming mentally unwell, using illicit drugs, being subjected to psychosocial stresses included [sic] isolation and/or being influence/encouraged by individuals that support violent extremism." [7]
Dr Dayalan also concluded that: "[w]hen the level of risk posed by [the defendant] reaches significance, he can promote violent extremism material online creating a serious risk of harm to a section of the public and he could also cause serious harm to individuals that he may regard as persecuting or disrespecting his religious community." [8]
Dr Dayalan went on to say that: "There can be no guarantee that [the defendant] will not engage in serious terrorism offence if released into the community. It can however be stated that based on his recent presentation, the dynamic risk factors relevant to his risk of engaging in serious terrorism offence can be managed in the community provided [the defendant]is subjected to close supervision and monitoring and has a stable accommodation identified." [9]
Dr Dayalan then opined that: "If he were to be subjected to an ESO, it is anticipated that the restrictive conditions are gradually eased over a period of time provided [the defendant] makes sufficient progress. Ideally, [the defendant] should be subjected to minimal conditions towards the end of his ESO period. This would allow for the relevant authorities to have confidence that [the defendant] will not pose a significant risk of committing a serious terrorism offence even after the expiry of the ESO. In my opinion, a duration of two to three years would be appropriate for his rehabilitation and graded reduction in the conditions imposed." [10]
With respect to the existing CCO, FPO, WPO and FCTO, Dr Dayalan said: "The provisions proposed under [the] ESO… are more capable of managing the various risk factors identified as relevant to [the defendant's] risk of committing a serious terrorism offence in comparison to the conditions under the CCO, FPO and WPO". [11] The conditions imposed under a CTO does not compel me to change my opinion". Dr Dayalan reached this conclusion following comparison of the relative effectiveness of the various conditions in managing the defendant's risk: "Upon reviewing the conditions of the CCO, it is noted that there are no restrictions on or oversight of [the defendant's] association with others. Given his history of association with pro-extremist individual and susceptibility to influence, it would be recommended that there is oversight of his associations especially in the early stages of release into the community. The CCO also does not require for the accommodation to be approved and does not restrict travel. There are no restrictions in regards to use of substances…As noted earlier, the [FPO] did not deter [the defendant] from acquiring firearms in the past… The CTO does not appear to offer any significant additional benefit [over the CCO conditions]… [In contrast,] [u]pon reviewing the proposed conditions if he were to be subjected to an ESO, I am of the opinion that the conditions listed under Part J as relevant to management of his psychiatric condition and Part H: Addictions are appropriate… [The defendant's] his psychiatric condition and substance use are factors associated with risk of [him] engaging in serious terrorism offences. Therefore, these risk factors need to be adequately managed." [12]
When reasoning to these conclusions, Dr Dayalan diagnosed the defendant as suffering from schizophrenia characterised by persecutory delusions, referential delusions, religious delusions, and auditory hallucinations. [13] His symptoms are treatment resistant, albeit perhaps less severe, notwithstanding that he was receiving antipsychotics. His use of illicit substances have exacerbated his symptoms; that use itself leading to a clinical diagnosis of cannabis use disorder. The defendant also indicates traits of antisocial personality disorder, although Dr Dayalan considered that a formal diagnosis is not possible in light of his schizophrenia.

Historical Clinical and Risk Management Tool

Dr Dayalan then appraised the defendant's risk by reference to historical factors, clinical factors, risk management variables using the Historical Clinical and Risk Management Tool (20, version 3), and a structured clinical judgement tool said to be widely used in the field of forensic psychiatry to assess and manage risk of violence in psychiatric patients. [14] The result of that assessment was that the defendant has a "long-standing risk of engaging in violence in the future given the high loading of historical risk factors", a number of which "are relevant to the risk of him committing an act of violent extremism", and that it is "very unlikely that [the defendant] will voluntarily engage in treatment or rehabilitation and therefore supervision and monitoring will be essential to managing the dynamic risk factors identified". [15]

Mr Sheehan's Psychological Report

In his report, Mr Sheehan concluded that the defendant's "risk of committing a serious terrorism offence to be in the mid range of the risk spectrum". [16] Mr Sheehan opined that: "[The defendant's] primary risk of harm to others is through general violence. His ready access to a firearm in 2021 reveals the link between his risk of extremist violence and his antisocial traits/associations. Although the evidence suggests that [the defendant's] firearm acquisition was driven by persecutory delusions, his motivation could shift quickly, particularly in circumstances where he has accumulated extremist associations and influences. His interests and activities place him at risk of establishing such contacts in the absence of close management. There is a danger of melding paranoid ideation to extremism religious beliefs, with ideas of reference (drawing spurious associations between unrelated things) being a common symptom of psychotic illness. In which case, acts of violence, property damage or other reckless behaviour could become ideologically based… [the defendant] is also at risk of inciting serious terrorism offences through his communications with others. His risk of a serious terrorism offence would increase sharply in circumstances where his personal life is poor, his mental illness remains unresolved, his associations are permissive of extremist violence, he returns to reading extremist literature, and he focusses on martyrdom as a means of elevating himself from his troubles or achieving peace within himself." [17]
Mr Sheehan considered that the existing CCO and FCTO are insufficient to manage the defendant's risk and an ESO to be necessary, observing: "Were [the defendant] to be released to these orders alone [the CCO and FCTO], this would assist in managing his risk but in my view the evidence is that these orders showed gaps in the ability to adequately manage [the defendant's] risk of a serious terrorism offence during the 2019-2021 period of supervision. In my view an extended supervision order would offer a more robust means of ensuring that [the defendant] does not engage in behaviours that are associated with risk of extremist violence." [18]
On this basis, Mr Sheehan concluded that an ESO would be capable of adequately managing the defendant's risk of violent extremism, stating that: "The ESO could be successful not only in providing close monitoring and external controls during the period of the order, but also establishing more enduring lifestyle and social adjustment changes germane to risk, that might endure post supervision. In my view a supervision order of 2-3 years would be indicated given the chronicity of the relevant issues. Any briefer period would not allow sufficient time to meet rehabilitation goals of establishing stable lifestyle and prosocial engagement." [19]
Mr Sheehan offered opinions as to each of the proposed ESO conditions. [20] He concluded that "in my view the conditions are adequate to effectively manage [the defendant's] risk of a serious terrorism offence, covering all the areas of potential concern relating to risk". [21]

VERA 2R

Mr Sheehan also applied the VERA-2R protocol. [22] Dr Dayalan's appraisal of the relevant risk indicators may be summarised as follows: 1. Beliefs, attitudes and ideology: The defendant has upheld beliefs, attitudes and ideology that justify the use of violence for ideological reasons, expressing clear race or religion-based grievances, and a burning sense of injustice. His focus of enmity has been towards Shia Muslims and the West. He has dehumanised Shia Muslims and members of Western society, describing them as "dogs", "cockroaches", "maggots" and "rats"-such dehumanisation reducing moral culpability or inhibition from acts of violence. He shows little understanding or empathy for those outside of his group. He has distanced himself from democratic society, describing it as blasphemous and calling for the imposition of Islamic law. His use of the Finger of Tawhid during court proceedings "at the very least" implies a sense that he feels his faith is above the laws of the community. There is little reason to think that his attitudes and beliefs have been extinguished during his time in custody. [23] 2. Social context and intention: The defendant has been a seeker and distributor of violent extremist materials over several years, including in custody. He sought to become a combatant in Syria and has expressed an intention to commit acts of violent extremism. He has repeatedly and consistently expressed a willingness to die for his beliefs as a martyr, seeing this as his duty and a means of achieving closeness with God. He uses online platforms and encrypted messaging applications to advertise his support for violent extremism and terrorism, access Islamic State propaganda, and communicate with others who espouse similar ideological views and beliefs. In March 2021, he was keeping company with an alleged member of a terrorist organisation. He shows susceptibility to influence, control and indoctrination. He has actively engaged in planning and preparation for acts of violence extremism, most obviously in his recorded attempts to prepare for travel to Syria in 2017. However, this being said, Mr Sheehan also opined that he does not "believe that the evidence supports the assertion that his 2021 firearms offences should be viewed as preparation for a terrorist offence (as dangerous as that behaviour was)". [24] 3. History, action and capacity: The defendant has developed relationships with other extremists, both inside and outside of prison. He has a history of interpersonal violence, including multiple arrests, including recently. He has viewed extensive propaganda material and absorbed a lot of it. He has boasted of converting others. He does, however, have few organisational skills and minimal access to funding. That being said, "his ready access to a deadly weapon in 2021 reveals a disturbing dimension to [the defendant's] access to resources through antisocial associations". [25] 4. Commitment and motivation: The defendant was motivated heavily by perceived religious obligation, glorification and moral superiority. His interest in glorification is also a repeated theme, with a desire to become a "green bird" and achieve elevation to God through sacrifice. The search for meaning and significance in life would appear to have been a motivating factor for the defendant, mostly underpinned by a desire to achieve salvation. Camaraderie and group belonging would also appear to have been motivating themes. [26] 5. Schizophrenia: Schizophrenia is specifically addressed in VERA-2R as a risk consideration because persons suffering from it "have a substantially higher prevalence in the lone actor population". The defendant suffers from schizophrenia, and it has been linked to his violent extremism. [27] 6. Protective or risk mitigating factors: The defendant has few protective or risk mitigating factors. He continues to promote romanticized ideas about martyrdom. He continues to engage in interpersonal violence, seeing it as unavoidable or necessary. He has not participated in any programs against violence extremism, with file information suggesting that he declined the Engagement Support Program (ESP) on 10 November 2020.
The expert reports support the making of an ESO. They demonstrate that the defendant suffers from a serious mental illness and is vulnerable to indoctrination.
In addition, in the RAR, Katrina Czerkies assessed the defendant using the Violent Extremist Risk Assessment - Version 2 Revised (VERA-2R) assessment protocol. Ms Czerkies did not interview the defendant for the purposes of the report. She assessed the defendant as being a medium risk of violent offending and recidivism and a moderate-high risk of violent extremism, politically motivated violence and terrorism.

Risk Management Reports

Two risk management reports have been prepared in relation to the defendant.
The first was prepared by the High Risk Terrorist Offenders Unit of the New South Wales Police Force (HRTOU RMR). [28] The HRTOU RMR identified the risk scenarios derived from the RAR. The HRTOU RMR identifies recommended conditions to support the defendant's Risk Management Plan, including a requirement to obey direction from an enforcement officer, electronic monitoring, a power reposed in the enforcement officer to direct the defendant not to communicate or associate with persons specified by the enforcement officer, and a requirement for disclosure and approval of electronic devices. The HRTOU RMR explains how the proposed conditions respond to particular aspects of the defendant's risk.
The second was prepared by Community Corrections (CommCorr RMR). [29] The CommCorr RMR identifies that the defendant, during an AVL interview, demonstrated willingness to partake in intervention in the community addressing his mental health (albeit that his response to interventions other than depot injections was "somewhat superficial"). The CommCorr RMR identifies that if the defendant was made the subject of an ESO, he would be managed at the "Tier Three High" level of Service Delivery Standards, which would involve at least weekly face to face contact with an enforcement officer. Modules form the "Practice Guide for Intervention" would be implemented; these promote positive change and encourage discussion around the identification and management of risk factors. The CommCorr RMR goes on to address the proposed conditions and their relevance to aspects of the defendant's risk.
The defendant has a history of non-compliance with obligations, including the breaches of his FPO that comprised the index offending, and breaches of his RRO, which included failing to attend mental health related appointments, including appointments to receive a depot injection, and failing to make an appointment with an Islamic psychological service.
The imposition of an ESO would facilitate holistic supervision of the defendant targeted to managing the risk that he will commit a serious terrorism offence. An ESO has been assessed as appropriate by both court-appointed experts, notwithstanding the defendant's history of non-compliance. The concerns about the defendant's historical non-compliance are known, and consequently his supervision can respond to these concerns. In these circumstances, this factor should not be treated as weighing against the imposition of an ESO.
Having regard to the reports of the court-appointed experts, the risk scenarios identified in the RAR, and the characteristics of the index offending, I am satisfied that an ESO should be imposed, and the appropriate length is one of two years.

Appropriate Conditions

Section 29 of the Act provides that the Court may direct an offender to comply with conditions considered "appropriate". Subsection (1A) outlines a list of prescribed conditions that should attach to an ESO "unless the Supreme Court orders differently".
In the imposition of conditions, assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1), is to provide for the extended supervision and detention of such offenders: "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage these offenders to undertake rehabilitation".
Within the Crimes (High Risk Offenders) Act 2006 (NSW), Hoeben CJ at CL in State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 set out the following principles to be considered in the imposition of conditions: 1. "Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 280 at [58] and [83]. 2. In imposing conditions, the Court needs to strike a balance between competing considerations: State of New South Wales v Tillman [2008] NSWSC 1293 at [68]. 3. A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36] 4. Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. 5. Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] - [38]. 6. Conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. 7. Conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Baker (No 2) [2015] NSWSC 483 at [36]. 8. To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales(2016) 91 NSWLR 636 at [129]-[131]."
The areas of dispute are most conveniently set out in tabular form below. In some instances, the defendant opposes the standard condition and proposes an amendment. In other instances, the defendant does not oppose the standard condition, but proposes additional detail to better explain and contextualise the standard condition. The italicised portions appearing in the tables are the proposed amendments, or conditions suggested on behalf of the defendant.

Condition 1 - Supervision, Movements and Reporting Condition Sought by Plaintiff Defendant's Proposal 1. The defendant must submit to the supervision of any Enforcement Officer responsible for the supervision of the offender for the time being and obey all reasonable directions of any Enforcement Officer (including in respect of providing a schedule of movements*).

The defendant must submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the offender for the time being and obey all reasonable directions of any Enforcement Officer (including in respect of providing a schedule of movements). * If directed by his EO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his EO). An EO must not withhold approval of the defendant's attendance at any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order. If the defendant departs from any schedule provided to his EO, the defendant must notify his EO of his change of plans before doing so, or if that is not possible, as soon as reasonably practicable afterwards.

The plaintiff opposes two of the three proposed additional paragraphs. The plaintiff submits that the standard condition allows the Enforcement Officer (EO) flexibility. The plaintiff further submits that the Court should not impose a condition on an EO by prescribing that an "EO must not withhold approval of the defendants tended that any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order".
The plaintiff submitted that the defendant does not suffer from such a debilitating mental illness such as to render him incapable of complying with a schedule of movements. The issue arises between the parties because the proposed amendment includes exclusion of certain details such as the provision of travel routes and timetables. The Plaintiff points to the report of Mr Sheehan at [98]: "Mr Taleb has never committed a serious terrorism offence as per the Act. There is no evidence that he has ever conspired or shown interest in committing a terror inspired act against the Australian community. However, in my view from consideration of all the material, I would estimate Mr Taleb's risk of serious terrorist offence to be in the medium or mid-range of the risk spectrum. His primary risk of harm to others is through general violence. He is ready access to a firearm in 2021 reveals the link between his risk of extremist violence and his antisocial traits/associations. Although the evidence suggests that Mr Taleb's firearm acquisition was driven by persecutory delusions, his motivation could shift quickly, particularly in circumstances where he has accumulated extremist associations and influences. His interests and activities placed him at risk of establishing such contacts in the absence of close management…" [30]
The defendant submitted that, essentially, the plaintiff's proposal gives reference to a schedule of movement, but does not outline what that schedule of movement will actually entail. The defendant's proposal attempts to fill this void and create certainty for the defendant as he embarks on what will no doubt be a difficult two years under this order.
During the course of oral argument, the plaintiff raised the question of whether the Court has the power to impose a condition that was essentially prohibiting or restricting an EO's capacity to withhold approval of the defendant's attendance at a particular location. I am not of the view that the defendant's proposal amounts to imposing a condition on an EO. Rather, the proposal ensures certainty for the defendant that approval will not be withheld unless attendance at a particular location would give rise to a risk of committing a serious offence, or risk of breach of another condition. That certainty is important in this case where the medical evidence emphasises the defendant's persecutory beliefs. In these circumstances, the proposed amendment would serve to reassure the defendant that any disapproval of the defendant's attendance at a particular location is not arbitrary and, at the same time, retaining an EO's power to withhold approval where attendance at a particular location would give rise to a risk of committing a serious offence, or a risk of breach of another condition.
In State of New South Wales v Davis (Final) [2021] NSWSC 837, Rothman J considered a similar issue where the Departmental Supervising Officer (DSO) would have the capacity to disapprove the change in plans for reason associated with the risk. His Honour determined that it was appropriate to add to a condition the words: "the DSO, or delegated officer, shall not dis-approve of any such change except where reasonably necessary to address a risk of the commission of a serious offence or compliance with another condition in this ESO" at [132].
I am also satisfied that the first additional paragraph to condition 1 is appropriate, namely, that if directed by his EO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable.
I am not persuaded that exclusion of travel routes and timetables would be contrary to the objective of controlling or mitigating the risk factors which have been identified, including the risk of the defendant dealing with people who may have extremist views.
The efficacy of a particular condition must be viewed in the context of all the conditions that will be imposed upon the defendant. For example, condition 3 provides that the defendant must truthfully answer questions from any EO about where he is, or has been; where he is going, or was going; who he is with, or was with; and what he is doing, or was doing. Condition 10 imposes a condition that the defendant must wear electronic monitoring equipment as directed, and not tamper with, or remove, the equipment. In circumstances where the defendant's movements are heavily monitored, amending condition 1 to exclude travel routes and timetables will reduce the risk of the defendant breaching the order inadvertently while maintaining an appropriate degree of monitoring to protect against the risk that the defendant has contact with associates who hold extremist views.
I am satisfied that the proposed additions to condition 1 are appropriate and serve to maintain a balance between the competing considerations, namely, to mitigate the risk of a serious offending on the one hand, and ensure that the conditions are not unjustifiably onerous or punitive, on the other.

Condition 10 - Electronic Monitoring Condition Sought by Plaintiff Defendant's Proposal 10. The defendant must wear electronic monitoring equipment as directed for up to 12 months during the currency of the ESO. Without a further order of this Court, only one direction of that kind may be made during the currency of the ESO. 10. The defendant must wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment. 10A. Any breach of any condition of the ESO shall cause the 12-month period to restart. 10B. The defendant must not tamper with, or remove, the equipment.

The defendant's proposal essentially introduces a "sunset clause" to the electronic monitoring condition. The proposed amendment is said to ensure that the defendant has the best opportunity; that at the end of two years, he does not require a further order. It is to ensure a gradual decline in the severity of the conditions and creates motivation for the defendant to continue in his rehabilitation. In considering this proposal, I am urged to bear in mind the variation power that exists within the Act. That is, should the plaintiff at the end of 12 months, entertain concerns about the removal of electronic monitoring, they have the power to bring a variation to this condition specifically.
In support of this proposal, the defendant relies upon the opinions of both the court-appointed experts. Forensic psychiatrist, Mr Sheehan notes in his report at [95]: "Electronic monitoring is an effective but intrusive way of having visibility of movements. This can assist with understanding Mr Taleb's association which is a key feature of his risk of a serious terrorism offence. I would prefer if there was the capacity to remove electronic monitoring contingent on ongoing stability. That is, the intensity of supervision should have the capacity to relax and tighten in conjunction with fluctuations in risk". [31]
Similarly, Mr Dayalan notes: "If he were to be subjected to an ESO, it is anticipated that the restrictive conditions are gradually eased over a period of time provided Mr Taleb make sufficient progress. Ideally, Mr Taleb should be subjected to minimal conditions towards the end of his ESO. This would allow for the relevant authorities to have confidence that Mr Taleb will not pose a significant risk of committing a serious terrorism offence even after the expiry of the ESO". [32]
The plaintiff submitted that given the defendant's prior history of initially complying with various conditions, but eventually engaging in "quite egregious non-compliance", the standard condition in respect of electronic monitoring should be imposed without amendment.
The reasoning underpinning the defendant's proposal is not without merit. The experts are clearly of the opinion that the defendant should be subjected to minimal conditions towards the end of his ESO, subject to ongoing stability. The difficulty in this case relates to the defendant's previous history. On 14 June 2019, the defendant was released from custody subject to supervision under the RRO. He reported to Community Corrections. He was spending his spare time working at his aunt's business, which was a cheese factory in Padstow. He commenced a TAFE course in project management on 12 July 2019. On 29 July 2019, the defendant's aunt reported that he was progressing well.
On 23 September 2019, the defendant's mother died. Prior to her death, he had been visiting his mother every day at a nursing home. [33] On 10 October 2019, the defendant's aunt reported the following his mother's death, she was concerned that he was spending a considerable amount of time and social media, which was impacting his work and study. On 24 and 31 October 2019, the defendant failed to report to Community Corrections. [34]
On 12 November 2020, the defendant failed to make himself available for a home visit in breach of the RRO. [35] On 26 November 2020, he failed to accept an antipsychotic depot injection as directed by Bankstown Mental Health Service, in breach of the RRO. [36] On 26 November 2020, when the defendant was subjected to a search for the purpose of monitoring ongoing compliance with the conditions of his FPO and WPO, he was found to be in possession of a book titled "Fortress of the Muslim". Pages of the book which had been "dog-eared" contained references to "killing infidels" and "killing non-believers". [37]
On 4 December 2020, the defendant failed to accept an antipsychotic depot injection as directed by Bankstown Mental Health Service, again in breach of the RRO. Between 24 December 2020 and 12 April 2021, the defendant failed to book an appointment with an Islamic psychologist, as part of the de-radicalisation program, in breach of the RRO. [38]
On 1 February 2021, the defendant was charged for the offence of possessing a prohibited drug, contrary to 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), namely, 7.7g of cannabis, an offence for which he was fined $750. While on the face of it not a serious offence, it raises concern about the defendant using prohibited drugs to self-medicate.
In February and March 2021, the defendant failed to attend an appointment with a private psychiatrist as arranged by Bankstown Community Health, failed to report to Community Corrections as directed, reported ongoing visual and auditory hallucinations, and blamed his deterioration on his medication.
On 16 April 2021, police attended the defendant's home and conducted a search of the premises in relation to the enforcement of the FPO. Police located a loaded black sawn off double barrel shot gun with a modified grip in the wardrobe of the defendant's bedroom. Police also located three shotgun shells at the premises. He was arrested and conveyed to Bankstown Police Station where he was charged with five offences pursuant to the Firearms Act. The defendant was remanded in custody. On 17 July 2021, he was entered into the MRRC Mental Health Screening Unit after exhibiting features deemed consistent with decompensation of schizophrenia. [39] By 20 July 2021, Community Corrections considered the defendant's response to supervision to be unsatisfactory. On 24 July 2021, an application for a FCTO was made in relation to the defendant. The Mental Health Review Tribunal (the Tribunal) made a further FCTO on 20 August 2021. The Tribunal noted that the defendant was considered a strong risk of relapse without an order, and a risk of violent behaviour when unwell. [40] The defendant's conduct in custody from March to April 2022 discloses that the defendant continued to experience auditory hallucinations and exhibited abusive conduct.
On 22 April 2022, the defendant was sentenced at Bankstown Local Court in relation to the Firearms charges to an aggregate term of imprisonment of 24 months, with a non-parole period of 13 months' imprisonment. That sentence was appealed successfully. The defendant was re-sentenced to a fixed term of 18 months' imprisonment. On 7 June 2022, the defendant was convicted and sentenced for the breaches of his RRO. Justice Hamill revoked the RRO and imposed a CCO for three years.
I have endeavoured to summarise the defendant's history of non-compliance that, in many instances, is inextricably related to his debilitating mental health issues. This is a brief summary, but it demonstrates a pattern of initial compliance, with a decline in compliance over time. In these circumstances, I am not persuaded that the standard electronic monitoring condition should be amended. In light of the history of non-compliance, the defendant must be closely monitored to reduce the risk of commission of a serious terrorism offence, or otherwise failing to comply with other conditions.
The standard condition allows for a degree of flexibility on the part of the EO in that the defendant must wear electronic monitoring equipment as directed. Although left to the discretion of the EO, the standard condition allows for a reduction in electronic monitoring or suspension of it all together where the defendant is stable and complying with other conditions.

Condition 12 - Accommodation Condition Sought by Plaintiff Defendant's Proposal 12. The defendant must comply with rules all bylaws (or both) of any approved accommodation for the defendant. 12. The defendant must not do anything to cause his eviction from any approved accommodation.

The plaintiff opposes the proposed amendment, submitting that the standard condition provides a protective aspect for the defendant because it ensures that he is familiar with the by-laws and rules of the nominated accommodation provider. The management of the conditions by EO is said to be undertaken in a "common-sense fashion" and it is highly unlikely that the defendant would be breached if he failed to comply with by-laws such as "not putting the bins out or not turning the lights out".
The defendant submitted that the proposed amendment is intended to prevent the over-criminalisation of the defendant. He is currently residing in supported accommodation and will likely do so for the entirety of the two-year order. These facilities come with a set of house rules, some of which are relatively benign. The standard condition gives rise to a risk that the defendant's failure to comply with any of the by-rules would lead to breach proceedings.
On the one hand, the standard condition is too restrictive and does give rise to the risk of potential breach proceedings for non-compliance with relatively benign rules. I accept that EOs endeavour to enforce the conditions in a "common-sense fashion", however, the issue is not whether an EO will enforce the conditions in an arbitrary or punitive way, but rather the importance of crafting a condition that will strike a balance between ensuring that the defendant does not do anything to cause his eviction on the one hand, and reduce the risk of over-criminalising conduct that may amount to no more than non-compliance with relatively benign rules, on the other hand.
That said, I am not persuaded that the proposed condition provides the certainty required for the defendant. This is particularly so having regard to the medical evidence. I intend to strike the appropriate balance by adding condition 12A, which will read: "it will not be a breach of condition 12 if the non-compliance with the rule or bylaw is trivial and not continuing". I appreciate that the word "trivial" may lend itself to different interpretations. However, the defendant's interests are protected because in order to constitute a breach, any non-compliance with a by-law must not only be something more than "trivial", but it must also be continuing.

Condition 17 - Place and Travel Restrictions Condition Sought by Plaintiff Defendant's Proposal 17. The defendant must not frequent or visit any place or district specified by any enforcement officer. 17. The defendant must not frequent or visit any place or district specified by any enforcement officer, if his EO believes on reasonable grounds that the place will increase the defendant's risk of committing a serious terrorism offence or of otherwise failing to comply with another condition of this order.

The defendant's proposal in respect of condition 17 is based upon similar reasoning to that advanced in support of the proposed amendment to condition 1, namely, that it provides certainty to the defendant and limits the breadth of the power vested in the EO.
The plaintiff is concerned that the proposed amendment is too restrictive and that there may be circumstances during the supervision of the defendant where it is necessary for an EO to direct that he not attend the particular premises until a risk assessment is undertaken. An EO will require flexibility in determining, or directing, that a particular place should not be visited by the defendant.
I am not persuaded that the defendant's proposal is restrictive. Clearly, an EO would not exercise his/her discretion to prohibit the defendant from frequenting, or visiting, any place, or district, on arbitrary grounds. The proposed amendment is couched in terms of the belief on reasonable grounds of the EO, which provides flexibility for the EO. Equally, such an amendment provides certainty to the defendant and goes some way to addressing his persecutory beliefs by ensuring that he understands that the strict restrictions on his movements are imposed on reasonable grounds.
I am, therefore, satisfied that the proposed amendment to condition 17 is appropriate.

Condition 33 - Psychological/Psychiatric Assessment Condition Sought by Plaintiff Defendant's Proposal 33. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 33. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. Non-compliance shall not be considered a breach until after the defendant has been directed to, and attended, the health care professional responsible for prescribing the medication and he given an opportunity to recommence the medication if it remains prescribed.

The defendant's proposal is opposed. The plaintiff relies upon the defendant's history of refusing to take medication and self-medicating with cannabis in support of the submission that to give the defendant latitude is not conducive to ensuring compliance with his treatment regime and integration back into society.
The plaintiff seeks the proposed amendment to prevent a situation where simply missing medication on one day, or ceasing medication due to adverse side-effects, would lead to criminal consequences. In support of that contention, the defendant relies upon his complex set of medical conditions, including the treatment resistant nature of his schizophrenia, as requiring "extra breadth" to reduce the risk of breach proceedings.
The defendant does not take issue with a condition that he must take medications that are prescribed to him by his healthcare practitioners. The concern is reducing the potential for breach proceedings and the serious consequences that flow in circumstances where he has either forgotten to take his medication, or is suffering adverse side-effects.
It is precisely because of the defendant's serious and complex mental health issues and history of non-compliance with his medication that he must be subject to a condition that requires him to take his medication. As far as possible, the condition must be directed at ensuring that the defendant understands the importance of taking his medication as required. I am persuaded, however, that the condition should more nuanced, so as to adequately address circumstances where the defendant is suffering from adverse side-effects. To achieve that end, I intend to add condition 33A which will read: "in the event that the defendant suffers adverse side-effects from his medication, he is to notify his EO immediately and in those circumstances non-compliance with condition 33 will not be considered a breach until after the defendant has been directed to, and attended, the healthcare professional responsible for prescribing the medication and be given an opportunity to recommence the medication if it remains prescribed".
Accordingly, I make the following orders: 1. An order pursuant to ss 20, 25(1)(a), 26(6) and 39(1)(a) of the Terrorism (High Risk Offenders) Act 2017 (NSW) that the defendant be subject to an Extended Supervision Order for a period of two years from today, 16 December 2022. 2. An order pursuant to s 29 (1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) directing the defendant to comply with the conditions set out in Schedule A to the Amended Summons, filed on 8 December 2022, as further amended by these reasons for the period of the Extended Supervision Order.

SCHEDULE OF CONDITIONS OF SUPERVISION (P) indicates prescribed conditions, see s. 29(1A) of the Terrorism (High Risk Offenders) Act 2017 PART A: SUPERVISION, MOVEMENTS & REPORTING 1 (P) The defendant must submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the offender for the time being and obey all reasonable directions of any Enforcement Officer (including in respect of providing a schedule of movements). If directed by his EO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his EO). An EO must not withhold approval of the defendant's attendance at any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order. If the defendant departs from any schedule provided to his EO, the defendant must notify his EO of his change of plans before doing so, or if that is not possible, as soon as reasonably practicable afterwards. 2 (P) The defendant must be available for interview at such times and places as any Enforcement Officer (or the officer's nominee) may from time to time direct. 3 The defendant must truthfully answer questions from any Enforcement Officer for the purpose of administrating this order about: (a) where he is or has been; (b) where he is going or was going; (c) who he is with or was with; and (d) what he is doing or was doing. 4 The defendant must carry at all times a specified approved mobile phone and: (a) ensure that the defendant is available to answer any call from any Enforcement Officer or, as soon as reasonably practicable, return a call from any Enforcement Officer that the defendant was unable to answer; and (b) comply with any reasonable directions given by any Enforcement Officer in relation to the mobile phone. PART B: VEHICLES 5 The defendant must not purchase, hire or drive any vehicle, or cause any other person to purchase or hire any vehicle for his use, without the prior approval of any Enforcement Officer. 6 The defendant must tell any Enforcement Officer of the colour, make, model and registration of any vehicle registered to the defendant or that the defendant intends to hire or drive or otherwise use. PART C: FINANCIAL OVERSIGHT 7 The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by any Enforcement Officer. 8 The defendant must not enter into a transaction for more than $1000 including through an agent or a third party, without informing any Enforcement Officer. 9 (P) The defendant must not transfer any funds outside Australia, including through an agent or a third party, without informing any Enforcement Officer. PART D: ELECTRONIC MONITORING 10 (P) The defendant must wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment. PART E: ACCOMMODATION 11 (P) The defendant must live at an address approved by any enforcement officer and notify any enforcement officer of any intention to change the defendant's address or living arrangements. 12 (P) The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. (12A) It will not be a breach of condition 12 if the non-compliance with the rule of by-law is trivial and not continuing. 13 (P) The defendant must permit any enforcement officer to visit the defendant at the defendant's residential address at any time and, for that purpose, to enter the premises at that address. 14 The defendant must be at his approved address between 10.00pm to 6.00am unless other arrangements are approved by any Enforcement Officer. 15 The defendant must not permit any person to enter and remain or to stay overnight at his approved address without prior approval of any Enforcement Officer. 16 The defendant must not sign or otherwise enter into any lease, mortgage or hire agreement (e.g., storage facilities) without prior approval of any Enforcement Officer. PART F: PLACE & TRAVEL RESTRICTIONS 17 (P) The defendant must not frequent or visit any place or district specified by any enforcement officer. If his EO believes on reasonable grounds that the place will increase the defendant's risk of committing a serious terrorism offence or of otherwise failing to comply with another condition of this order. 18 (P) The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services. 19 The defendant must surrender any passports in his name to the Commissioner of Police, must not be in possession of any passports and must not apply for or attempt to apply for any passports. 20 The defendant must not go within 1km of any point of departure for an international destination (such as Sydney and Bankstown Airports and Sydney Cove Passenger Terminal) except in accordance with his approved schedule or as otherwise approved by any Enforcement Officer. PART G: SEARCH & SEIZURE 21 (P - modified) The defendant must submit to the search and seizure of any items in his possession or under his control including of his residence, his vehicle, any computer, electronic and communication devices, or any storage facility, garage, locker or commercial facility. 22 The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order. PART H: ADDICTIONS 23 (P) The defendant must not use prohibited drugs or obtain drugs unlawfully or abuse drugs lawfully obtained. 24 (P) The defendant must submit to drug and alcohol testing. 25 The defendant must not possess or consume alcohol without the approval of any Enforcement Officer. 26 The defendant must not enter any licensed premises without the approval of any Enforcement Officer, except licensed restaurants and cafes. 27 The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with people who the defendant knows, or reasonably ought to know or suspect are consuming or under the influence of illegal drugs or alcohol, unless any Enforcement Officer approves the defendant to do so. PART I: WEAPONS 28 (P) The defendant must not possess or use any of the following: (a) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996; (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998; (c) a spear gun; (d) an explosive substance intended, by the defendant, to be used in an explosive device; or (e) a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the defendant, to be used as a fuse or detonator for an explosive device (as the case may be). 29 The defendant must not possess or use any of the following, without any Enforcement Officer's prior approval: (a) any article or device, not being a firearm, that is designed or intended as defence or anti-personal spray and that is capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or (ii) any substance capable of causing bodily harm. (b) a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; (i) This does not apply to cutlery or cooking utensils/implements (including knives used for cooking) when those items are used for their ordinary purpose. (c) any other implement made or adapted for use for causing injury to a person; (d) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; (e) a laser pointer; or (f) a digital blueprint for the manufacture of a firearm or a prohibited weapon on a 3D printer or on an electronic milling machine. PART J: PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT, COUNSELLING & MEDICAL TREATMENT 30 (P) The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by any Enforcement Officer. 31 The defendant must notify any Enforcement Officer of the identity and address of any healthcare practitioner that he consults. 32 The defendant must attend, upon the direction of any Enforcement Officer, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 33 The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. (33A) In the event that the defendant suffers adverse side effects from his medication(s), he is to notify his enforcement officer immediately and in those circumstances, non-compliance with condition 33 shall not be considered a breach until after the defendant has been directed to, and attended, the health care professional responsible for prescribing the medication(s) and he be given an opportunity to re-commence the medication(s) if it (they) remain prescribed. 34 The defendant must notify any Enforcement Officer immediately if he ceases to take any medication referred to in the above condition. 35 The defendant must agree to his healthcare practitioners and service providers sharing information with each other and with any Enforcement Officer, that, in the opinion of any Enforcement Officer, relate to the defendant's risk of committing a serious terrorism offence. PART K: EMPLOYMENT, VOLUNTEERING & EDUCATION 36 (P) The defendant must notify any Enforcement Officer of any intention to change the offender's employment if practicable before the change occurs or otherwise at his next interview with any Enforcement Officer. 37 (P) The defendant must not start on the defendant's own initiative any job, volunteer work or educational course without the approval of any Enforcement Officer. PART L: COMMUNICATON, INTERNET USE & ELECTRONIC DEVICES 38 (P) The defendant must obey any reasonable direction by any Enforcement Officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information). 39 The defendant must not access or use, or cause another person to access or use on the defendant's behalf, any of the following items, unless disclosed and approved by any Enforcement Officer: (a) any mobile telephone device; (b) any fixed, landline, or satellite telephone service; (c) any public telephone except in the case of an emergency, provided the defendant contacts any Enforcement Officer as soon as possible after accessing or using such a public telephone; (d) any Voice Over Internet Protocol (VOIP) service including any software, mobile application or hardware that will facilitate a VOIP service (for example, but not limited to, 'FaceTime', 'WhatsApp', 'Viber', 'Telegram' and 'Skype'); (e) any computer or tablet device; (f) any internet service provider account; (g) any electronic mail (email) account; (h) any internet based messaging service, including any software, mobile application or hardware that will facilitate the internet based messaging service (for example, but not limited to, 'WhatsApp', 'Viber' and 'Telegram'); (i) social media accounts; and (j) any websites, applications or computer programs specified by any Enforcement Officer. 40 The defendant must advise any Enforcement Officer of any change to any of the items listed above as soon as possible. 41 The defendant must not delete, attempt to delete or data on any of the items listed above without the prior consent of any Enforcement Officer. (41A) The defendant must not use any encryption or anti-surveillance system, software or user setting which automatically deletes data, or enables anonymous communication or anonymous user activity. 42 The defendant must consent to any Enforcement Officer (or other person requested by any Enforcement Officer) remotely inspecting the items listed above in monitoring compliance with this Order. 43 The defendant must provide any details of the items listed above (including user names, passwords, pin codes and pass codes), as directed by any Enforcement Officer. 44 The defendant must provide consent for his telephone provider, internet service provider and any social media account provider to share information about his accounts with any Enforcement Officer. PART M: ASSOCIATIONS 45 (P - modified) The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate (including using third parties) with any person, persons or groups or organisations specified by any Enforcement Officer, whether face to face or by written correspondence or electronic means. 46 The defendant must inform any Enforcement Officer of the identity of any person with whom he does, or is likely to, regularly associate. 47 The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person, persons, groups or organisations he knows or reasonably ought to know or suspect are advocating support for engaging in any terrorist acts or violent extremism. 48 The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person held in custody or with any person he knows or reasonably ought to know or suspects is subject to a control order, on parole, or otherwise subject to a supervision order without prior approval of any Enforcement Officer. 49 The defendant must obtain written permission from any Enforcement Officer prior to joining or affiliating, whether face to face or by written correspondence or electronic means, with any group, club or organisation. PART N: IDENTITY & APPEARANCE 50 (P) The defendant must not change the defendant's name or use any other name without notifying any Enforcement Officer. 51 The defendant must not obtain or change any form of identification without prior approval from any Enforcement Officer. 52 The defendant must let any Enforcement Officer photograph him, dressed, and photograph any tattoos, within one week of the commencement of these conditions and at any time as reasonably required by the Enforcement Officer. 53 The defendant must not significantly change his appearance, including by the addition or alteration of tattoos, without the prior approval of any Enforcement Officer and at any time as reasonably required by the Enforcement Officer. PART O: EXTREMISM 54 The defendant must not engage in any act, or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence. 55 The defendant must not purchase, possess, access, obtain, view, create, participate in or listen to: (a) extremist material; or (b) other material as directed by any Enforcement Officer for reasons related to concerns regarding violence or for reasons related to his risk of committing a serious terrorism offence. In these conditions: "CSNSW" means Corrective Services NSW. "Defendant" means Moudasser Taleb, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Enforcement Officer" means a Corrective Services Officer or Police Officer. "Extremist material" means: (1) any material that a reasonable person would understand to be: (a) directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts or violent extremism; or (b) seeking support for, or justifying, the carrying out of terrorist acts or violent extremism; or (2) material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation. Examples of 'extremist material' include: (1) articles, images, speeches or videos that promote violent extremism; (2) statements or posts made on social media, chat rooms or blogs that encourage violent extremism; (3) content encouraging people to commit acts of terrorism; (4) websites created or hosted by terrorist organisations; (5) terrorist training materials; (6) videos or images of terrorist attacks or acts of violent extremism. "Material" includes: (1) any written or printed material; (2) any picture, painting or drawing; (3) any carving, sculpture, statue or figure; (4) any photograph, film, video recording or other object or thing from which an image may be reproduced; (5) any computer data or the computer record or system containing the data; and (6) any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes: (1) A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and (2) A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. "Seizure" includes: (1) the removal and taking of items of interest identified during searches from the defendant's residence, vehicle, garage, locker, storage facility, commercial facility or electronic device; and (2) examination and analysis of those items, including Cellebrite or other downloads of data from electronic devices. "Terrorist act" has the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where: (1) The action: (a) causes serious harm that is physical harm to a person; (b) causes serious damage to property; (c) causes a person's death; (d) endangers a person's life, other than the life of the person taking the action; (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; (ii) a telecommunications system; (iii) a financial system; (iv) a system used for the delivery of essential government services; (v) a system used for, or by, an essential public utility; and (vi) a system used for, or by, a transport system; and (2) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; (3) the action is done or the threat is made with the intention of: (a) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (b) intimidating the public or a section of the public; and (4) the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person's death, endanger the life of a person, or create a serious risk to the health and safety of the public. "Terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State / ISIS and Jabhat al Nusra.

Endnotes

Exhibit RI-1, Tab 13, p 177; R v Taleb (No 5) (Sentence) [2019] NSWSC 270 at [9].
Exhibit RI-1, Tab 33, p381.
Exhibit JC-1, Tab 15.
Exhibit RC-1, Tab 16.
R v Taleb (No 5) (Sentence) [2019] NSWSC 720 at [77].
Ibid at [8].
Expert Report of Dr Sathish Dayalan dated 20 November 2022, [159].
Ibid, [166].
Ibid, [188].
Ibid, [189].
Ibid, [198].
Ibid, [191]-[194].
Ibid, [119]-[123].
Ibid, [124].
Ibid, [151]-[152].
Expert Report of Patrick Sheehan dated 20 November 2022, [6].
Ibid, [98].
Ibid, [6].
Ibid, [6] and [114].
Ibid, [91]-[106].
Ibid, [107].
Ibid, [82].
Ibid, [85]-[86].
Ibid, [87]-[91].
Ibid, [92]-[93].
Ibid, [94].
Ibid, [95].
Exhibit RI-1, Tab 4, High risk Terrorist Offenders Unit ESO Management Report.
Exhibit RI-1, Tab 3, Corrective Services Risk Management Report.
Exhibit RI-1, Tab 10, [98].
Exhibit RI-1, Tab 10, [95].
Exhibit RI-1, Tab 9, [189].
OIMS Case Notes dated 29 November 2017 to 16 April 2022 (Exhibit JC-1, Tab F).
OIMS Case Notes dated 1 August 2018 to 28 September 2022 (Exhibit RI-1, Tab 66).
Information and Summons- Breach of Recognisance dated 15 October 2021 (Exhibit RI-1, Tab 19).
Information and Summons- Breach of Recognisance dated 15 October 2021 (Exhibit RI-1, Tab 19).
OIMS Case Notes dated 1 August 2018 to 28 September 2022 (Exhibit RI-1, Tab 66).
Information and Summons- Breach of Recognisance dated 15 October 2021 (Exhibit RI-1, Tab 19).
Application for FCTO dated 24 July 2021 (Exhibit RI-1, Tab 90).
Determination of Tribunal - Order dated 12 November 2021 (Exhibit RI-1, Tab 89). 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: 16 December 2022

Within the Crimes (High Risk Offenders) Act 2006(NSW)

(2020) 103 NSWLR 401

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (21)