State of New South Wales v TL

Supreme Court of NSW|2022-07-18|Before: Lonergan J, Mr J, Fullerton J, Bellew J

Solicitors: NSW Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/00084735

Judgment

By Amended Summons filed in Court on 18 July 2022, the State of New South Wales seeks final orders under the Terrorism High Risk Offenders Act 2017 (NSW) (the "Act") for the continued supervision of the defendant, TL. An application for interim orders was filed in 2019 and for the reasons set out in State of NSW v TL [2019] NSWSC 1101, Fullerton J made an interim detention order. That order was superseded by other events which caused the making of final orders to be delayed until now. One event was the serving of sentences of imprisonment for other offending. Another was the significant spinal injury suffered by the defendant in custody on 27 November 2021.
On 3 May 2022 Bellew J revoked the interim detention order, substituted an interim supervision order (ISO), and made other facilitative orders including that the defendant be assessed by relevant experts under s 24(5) of the Act: State of NSW v TL (Preliminary) [2022] NSWSC 946. The ISO was renewed on 31 May, 24 June and 18 July 2022. The current ISO expires on 4 August 2022.
For clarity, the plaintiff filed in Court a fresh Summons for final orders on 18 July 2022 seeking a 3-year extended supervision order (ESO) on specified conditions. The defendant does not oppose the Court making orders for his supervision for the 3-year period proposed, but submitted that a number of the conditions should be modified. Because of respectful debate and professional cooperation between counsel for the parties, the areas for dispute became more confined and so only the wording of conditions 5, 14, 23 and 37 require determination by the Court. The resolution of those competing positions is set out in [24] to [47] of this judgment.

The Evidence

The State relied upon the following evidence: (i) Report of Dr Andrew Ellis, Forensic Psychiatrist, 28 June 2022; (ii) Report of Dr Kate Seidler, Clinical and Forensic Psychologist, 24 June 2022; (iii) Supplementary Risk Assessment reports of Filipa Abreu, Psychologist dated 16 February and 21 March 2022; (iv) Risk Management Report of Daniel Pumphrey of Community Corrections, 28 February 2022; (v) Report of SC Wang, 28 February 2022. (vi) Report of Dr Sachin Shetty, Consultant Physician, Rehab Spinal Medicine 7 February 2022 and evidence given by him on 28 March 2022 (vii) Evidence of Lynn Blecher, Physiotherapist, given by her on 28 March 2022; (viii) Section 50 Evidence Act 1995 (NSW) summary of evidence and other summary extracted from affidavit material directed to the index offence and offending history, Corrections intelligence group reports, historical psychological and psychiatric reports, OIMS case notes, police records, State Parole Authority material, surveillance device product and phone message extracts said or authored by the defendant.
No evidence was led at the hearing and no cross-examination was required.

The Factual Background

The index offences, previous application for the interim detention order, the defendant's further offences and the injuries he sustained in November 2021 have all been cogently and succinctly summarised by Bellew J at [5] to [35] of his judgment. Those parts of his Honour's judgment are reproduced here for ease of reference: "The Index Offences [5] On 31 July 2017 the defendant, in the company of others, attended premises where another person (the victim) resided with his wife and daughter. The victim and his family were at home at the time and many of the events which occurred, which are summarised below, were captured on CCTV footage. [6] The victim heard his front doorbell ring. The CCTV footage depicted a male wearing a "hoodie" partially covering his face at the front door (that person being one of the defendant's co-offenders). In those circumstances, the victim did not answer the door but continued to view the CCTV monitor. [7] When the front doorbell rang again, the victim looked at other CCTV monitors. He saw the defendant standing on the path leading to the front door of the premises, holding an item which appeared to be a baseball bat. The victim did not open the door of the premises and remained silent inside with this family so as not to alert the defendant and his co-offenders to their presence. [8] A few minutes later, the victim received a call from an unknown number which he did not answer. Approximately 1 minute later, received a further call from a number which was displayed. Once again, he did not answer. A short time later the victim called the second number back. The defendant answered and demanded the sum of $60,000.00 referable to "the gold you guys took". The defendant made it known to the victim that he knew his personal circumstances (including the number of members of his family) and threatened to surround the victim's premises with more people if his demand for money was not met. He also demanded to be given the victim's car and truck if the victim did not have sufficient money to pay him. [9] The defendant was charged with offences of being armed with intent to steal in company, and being armed with intent to commit and indictable offence. He was sentenced to imprisonment for 1 year and 6 months commencing on 22 February 2018 and expiring on 21 August 2019. The previous application for an Interim Detention Order [10] On 14 June 2019, the plaintiff filed a summons seeking (inter alia) orders: Pursuant to ss 41 and 42(1) of the Act. That application was heard by Fullerton J on 19 August 2019. In a judgment delivered on 21 August 2019 her Honour made orders (inter alia) that the defendant be subject to an Interim Detention Order. Her Honour's orders were stayed pending the determination of a constitutional issue which was ultimately resolved in the plaintiff's favour. An appeal against that determination was dismissed by the Court of Appeal. [11] The judgment of Fullerton J includes a number of matters relevant to the present application. [12] First, in addressing the likelihood of the defendant committing a serious terrorism offence, her Honour made reference to a psychological risk assessment report which included the following: TL is a 22 year old male who identifies as Muslim. ... Between the period of 2014 to 2017 TL made statements and/or engaged in behaviours which have contained elements of an extremist religious ideology and/or espoused support for violent extremist activities. TL is also reported to have engaged in online activity including viewing violent extremist propaganda, posting, commenting and/or sharing material online within an Islamic extremist context and communicating with persons of interest to counter terrorism authorities. TL has a longstanding criminal history which commenced early in his teenage years. He has continued to engage in non-compliant, anti-social and violent offending behaviour, with a demonstrated escalation over time in regards to his violent offending. TL is currently assessed within the High risk category of violent offending relative to other male violent offenders and within the Moderate/High risk of general offending. Furthermore, the current assessment placed TL within the High range of engaging in extremist violence. His presentation suggest the presence of an ideology that justifies the use of violence, a high degree of capacity and access, a number of relevant underlying motivations and a verbalised intention to use violence. The combination of these factors suggests a degree of imminence of risk for religiously motivated violence, violent extremism or terrorist activity. In addition to this, consideration of his likelihood of engaging in lone actor style targeted violence remains of concern, as assessed by the TRAP-18. TL is noted to have a number of proximal warning behaviours and distal characteristics which indicates that his behaviour warrants both monitoring and relevant intervention to manage this risk. It is also of noted significance that TL appears to have minimal protective factors and a number of additional indicators which may exacerbate his risk of violent extremism. In the event that TL is subject to a Continuing Detention Order (CDO) he may benefit from a referral to the Proactive Integrated Support Model (PRISM) service, a custody based disengagement support service. It would also be recommended that he be referred to intensive programming including the Violent Offenders Therapeutic Program (VOTP) to address his specific violence treatment needs. In the event that TL is subject of an Extended Supervision Order (ESO) he is likely to require high levels of monitoring, scheduling and restrictions of his online activities and associations. He may also benefit from comprehensive case management and an intervention plan. [13] Secondly, her Honour noted the following additional observations in the risk assessment report: Overall, TL's rigid beliefs related to monotheism, the rejection of Western democratic norms and other non-Islamic models of governance, coupled with a critical view of Western influences and an indifference to being re-incarcerated due to his religious beliefs, may serve to intensify a "nothing to lose" mentality which may in turn serve to increase his susceptibility to engaging in violent extremism. [14] Thirdly, her Honour noted that during his period of custody, the defendant had incurred a number of institutional misconduct charges for both violent behaviour and general misconduct. [15] Fourthly, her Honour noted that the defendant had also incurred an institutional misconduct charge for intimidation which arose from a threat to assault correctional staff. [16] Fifthly, in addressing the defendant's response to community supervision, her Honour noted that the risk assessment report included the following: TL's history demonstrates a consistently poor response to supervision commencing as a young person. He has also demonstrated a history of missing appointments, providing conflicting information, not complying with directions to reside in approved locations and absconding. As a young person, his community supervision was often aided by intensive case management from community organisations alongside Juvenile Justice/CSNSW. Case workers have attended CSNSW community supervision appointments with TL. Presently at the time of interviews, he demonstrated improved insight into his high risk situations for general violence and offending and had some strategies to manage potential high risk situations. However, they appeared largely avoidance based. Given this, he would require ongoing support to maintain adherence with these management strategies, structure to his activities and continued compliance. Prior releases into the community resulted in him returning to high risk areas, remaining in contact with negative peers and failing to attend appointments following a short period of compliance. This demonstrates TL's tendency to engage superficially with service providers and his attempts to achieve the minimum required to avoid serious penalty such as a breach of parole. During his most recent period of community supervision, he repeatedly avoided engaging with a Psychologist in the community as organised by his CCO. Of note, he was directed to engage in the CSNSW EQUIPS Aggression program whilst under supervision and file information notes he completed this in December 2018. TL was issued with a warrant for the revocation of his parole by the NSW State Parole Authority on 17 March 2019. At the time of his arrest by the NSWPF at his home, he reportedly stated 'Shoot me dead. I just don't care just shoot me' (Investigators note, 18/04/19). He was able to be calmed and submitted willingly to his arrest. Of note however, when he transferred to Granville Police Station and informed he would be re-entering the custody of Corrective Services NSW, he was noted to become aggressive in his presentation style and threatened the police stating '(IND) your whole house', 'one phone call and I will have all your details in a second'. [17] Sixthly, her Honour noted that the defendant had exhibited an established pattern of non-compliance with a number of community-based orders which were referred to in a risk intervention report in the following terms: Since December 2013, TL has been subject to a number of community based orders. Breach reports demonstrate TL's non-compliance with supervision by way of drug use, failure to engage in intervention, failure to reside at an approved address and further offending. Concerns regarding TL's association with criminal networks and extremist ideology became apparent from 2015. He was engaging with persons holding extremist views, expressed his desire to join terrorist organisations, and made statements supporting extremist ideologies. [18] Seventhly, having noted the defendant's history of non-compliance with bail conditions, her Honour addressed the defendant's criminal history, describing it as "extensive", and one that demonstrated "an escalation over time in both the violence and frequency of [his] offending." Her Honour then set out the following summary of that history: Charge Date Convictions 27/12/11 Destroy or Damage Property $5000 & <=$15000 Breach of Bail - Application to Re-determine Resist 17/07/12 Officer in Execution of Duty (DV) Destroy or Damage Property (DV) 27/07/12 Warrant Executed 01/08/12 Drive Recklessly/Furiously or Speed Manner Dangerous Take & Drive Conveyance W/0 Consent of Owner

[19] Eighthly, her Honour found that the defendant's (then) current and continuing affiliation with fundamentalist belief structures was demonstrated by his support for violent extremist activities, along with behaviour which exhibited elements of an extremist religious ideology. [20] Ninthly, her Honour noted the reference in the risk intervention report that the defendant had first commenced to make statements in support of terrorism whilst in juvenile detention in 2014, and that his religious views and statements in support of violent extremism had increased since that time. [21] Finally, her Honour made reference to the defendant's associations with organised crime and crime groups, the escalation of his extremist religious views, his associations with religious extremists, the use of weapons, and associated violence. [22] Having undertaken the evaluative exercise required under ss 25 and 39 of the Act, her Honour concluded (inter alia) that the defendant was at a high risk of engaging in extremist violence and that he had a violent ideation, including a willingness to die as a martyr for a religious cause. In respect of such matters, her Honour found that the defendant had engaged in: (1) viewing extremist material in his cell in the form of videos depicting, amongst other things, beheadings, which he appears to revel in describing the acts as 'beautiful'; (2) preparing and training to fight the kuffar (i.e. unbelievers); (3) viewing the "Terrorist's Handbook"; (4) referencing the Christchurch shootings as a war on Islam; (5) planning to start an Islamic community or "Islamic state" or "Islamic Brotherhood" in which the laws of Allah would apply, including appointed punishments such as death and lashes; and (6) accessing extremist material online, including lectures by radical Salafists, in a way which her Honour regarded as prolific, and which intensified from about December 2018 until his parole was revoked in March 2019. The defendant's further offences [23] Since the index offences, the defendant has committed the following further offences: (i) 30 July 2019 - stalking/intimidation, for which he was sentenced to imprisonment for 18 months; (ii) August 2019/September 2019 - four offences of contravening an Apprehended Domestic Violence Order, of each of which he was convicted without penalty; (iii) 1 October 2019 - intimidating a police officer, for which he was sentenced to imprisonment for 18 months; (iv) 31 March 2020 -four offences of contravening an Apprehended Domestic Violence Order of each of which he was convicted without penalty. [24] On 18 February 2021 the defendant was charged with two counts of doing acts in preparation for a terrorist act, contrary to the provisions of the Criminal Code 1995 (Cth). Those matters remain before the Local Court. The defendant has since been released on bail in respect of those matters by orders of Ierace J. [25] There is also some evidence that whilst in custody, the defendant has communicated with others who are known by the authorities to support violent extremism. The defendant's injuries sustained in November 2021 [26] On 27 November 2021 the defendant was involved in an incident in custody and was transferred to Prince of Wales Hospital where he was diagnosed with a C5 burst fracture with spinal canal stenosis and a complete deficit below C6. He underwent surgery in the form of a C5 corpectomy with anterior fusion and iliac crest bone graft. He remained in the intensive care unit at the Prince of Wales Hospital until 9 December 2021 at which time he was transferred to the Spinal Injuries Unit under the care of Dr Sachin Shetty. [27] Dr Shetty's report confirms that the defendant is a diagnosed tetraplegic as a consequence of his spinal cord injury. As a consequence, he: (i) has lost control in all four limbs; (ii) has no control of bowel function; (iii) has no sensational control of his bladder and is currently managed with an indwelling catheter. (iv) has little or no sensation below his chest level; (v) is likely to have permanent deficits in functioning of both his upper and lower limbs; (vi) is unlikely to attain enough movement in the lower limbs to allow independent ambulation; (vii) will require full assistance in showering and dressing; and (viii) is very likely to require a significant degree of assistance to perform all activities of daily living. [28] Dr Shetty expressed the view that the best case prognosis for a person with the defendant's injuries and disabilities would be the achievement of some functional recovery in his lower limbs that may allow him to stand up and take a few steps with a walker. [29] Dr Shetty gave evidence on the present application. He confirmed the nature and extent of the defendant's injuries, and described the defendant's progress as "minor". [30] Lynn Blecher, a Physiotherapist at the Prince of Wales Hospital, also gave evidence before me, having prepared a report in relation to the defendant of 21 March 2022. Ms Blecher is the defendant's primary treating physiotherapist. In summary, her evidence was that the defendant's presentation was characterised by: (i) full paralysis of the finger and thumb muscles; (ii) tenodesis; and (iii) no voluntary movement in any direction of his fingers or thumbs. [31] Ms Blecher's evidence was that the defendant is capable of using a mobile telephone by "knocking" the buttons with his knuckle, and that he is capable of using a keyboard in a way which was "slow and effortful". She also said that the defendant's rehabilitation from his injuries could extend to a period of up to five years, and may include further surgery in an attempt to increase the functionality of his hands which, if it were carried out, would extend his period of rehabilitation. Ms Blecher also gave evidence that the defendant's injuries have resulted in a reduced respiratory capacity and that whilst he is able to breathe by himself, he has been recommended to have ventilatory support overnight."

The current state of the evidence regarding the defendant's physical abilities and prospect of recovery of functional limb use

Prince of Wales Hospital notes from June 2022 indicated that TL has had nerve transplant surgery to his left arm.
TL's Senior Counsel indicated that this was his second surgery, and the other arm had been done prior. There are no notes about this. There is no evidence as to what improvement in function will follow the surgery other than it will take 6 to 9 months for effects to be seen.

The June 2022 assessment report of Dr Ellis, Psychiatrist

The State has extracted the key aspects of Dr Ellis's opinion at [155] to [167] of its written submissions: • Dr Ellis interviewed TL for three hours on 3 June 2022. He did not ask TL about the unresolved terrorism charges. TL told Dr Ellis that he was violent towards officers whilst in custody, and said that he was violent '"not to be a hard cunt" but to "orchestrate events in custody". TL told Dr Ellis that he had "organised a riot by yelling out to other inmates", and that "he was prepared to die at this time". TL described his present conditions of supervision as "easy" and said he was "content" with the conditions. TL told Dr Ellis that he was in contact with his sister on a daily basis. • TL told Dr Ellis that he had been the national president for the "Mongrel Mob" outlaw motorcycle gang in Australia, starting at age 17, and that family on his mother's side ran the "headquarter gang" from New Zealand. He said he had stepped down due to having children, and that he does not want his children to follow him into this part of his life. He said he still received letters from gang related people in prison, but says he "does not want to live that life any more" and does not read them. • Dr Ellis makes the following observations about TL's beliefs (emphasis added): He says that he likes the Islamic way of life. He likes the structure. He said he has spoken to a number of sheiks and preachers. He says he always goes back to the original texts and does not listen to the words of preachers without considering them in their context. He said that all texts lead back to the Koran. He says that religion tells him who you can and cannot kill. He said that he "100% believes in Jihad". He said that fundamentalists and orthodox Muslims twist the words of the Koran to make Jihad seem nonviolent. He said that most Muslims are not truly faithful. He could not consider a single Islamic government active in the world today to be true to the Muslim faith that he identified with. He said that even the Taliban in Afghanistan was not truly a Muslim government and had made too many compromises. The failed ISIS state was the closest. He said that any Muslim who joined a Western government or voted in a democracy would be an unbeliever. He places Australia in the category of "fitnah" and considers Australia to be an oppressive country towards Muslims. He believed that most Islamic countries were "sellouts". He believed it was the duty of any true Muslim to use violence towards the government and citizens of a state that was considered "fitnah", until a true Muslim society could be established. He said that his aim was to live with support from the National Disability Insurance Scheme. He would like to study and to provide a good life for his children. He said that although he acknowledged that he held extreme views, including views that justified violence against Australia, its officials and citizenry he had no intent to act upon this. He said that because of his disability he had a dispensation with regards to jihad and would not be obliged to participate in any way, despite his statements that true Muslims were obliged to act upon their faith with violence. He said that some aspects of democracy were good, particularly welfare that he could collect. He said that any previous statements he had made about terrorism were "bluster" and in order to shock others. He denied intent to aid violence or act violently. He denied any intent to associate with persons interested in violent extremism or terrorism. • Dr Ellis considers that TL would meet the criteria for a substance use disorder (in remission) and that he would also meet the criteria for personality disorder with antisocial features. Dr Ellis also observes that TL displays characteristics of psychopathy. He observes that "[i]n terms of interpersonal facets of psychopathy he does display deficits in remorse, accepting personality responsibility and reduced affective response in empathic situations". • Dr Ellis considered that TL did not show any obvious cognitive impairment on bedside examination. Like Dr Seidler, Dr Ellis notes that "[h]is use of language and expressive interview performance are at odds with a diagnosis of intellectual disability or autism suggested in previous reviews". Dr Ellis goes on to say (emphasis added): There is a history of problems with physical violence across his life by self report and criminal record. Most of these relied on his physicality, and thus this factor is now less relevant. This is a history of other antisocial behaviour across his life by self report and criminal record, again much of which relied on physicality and is less relevant. There is a history of problems in relationships with no stable intimate, family or acquaintance relationships. There is a history of problems with employment, with no regular work and supporting himself by criminal activity. He has a diagnosis of personality disorder, including a diagnosis of antisocial personality which has a greater association with violence. He has consistent attitudes supportive of violence across his lifespan (evidenced by threatening violence in his criminal charges, weapon use in offences and multiple other records of threat). He has re-offended on previous conditional supervised release and attracted custodial charges. There is evidence of exposure to traumatic events in childhood. This indicates a high loading of historical risk factors associated with violence in the longer term, greater than the general prison population of violent offenders or psychiatric patients. This high loading needs to be considered in light of his physical limitations, and would be considered less relevant overall. • Dr Ellis observes that TL currently displays "limited understanding of his past violence", but "no overt evidence of current instability of his mental state in the forms usually associated with imminent violence". However, his lack of engagement with rehabilitation to address violence and his attitudes supportive of violence lead Dr Ellis to conclude that TL displays "a high loading of modifiable risk factors, which indicate ongoing concern for specific types of violence, despite his physical limitations". • Dr Ellis considers that, in the absence of treatment or supervision: TL would fall into a group of persons with a risk for [violent offending] that is low in frequency with potential for serious consequence in his specific case owing to his past preparedness to use weapons and associate with other violent persons if allowed access to means. Even basic levels of supervision would likely reduce this risk. Owing to the specificity of this risk, he would be considered at overall significantly less risk of committing a terrorist violent offence than other persons convicted of terror related offences released from custody. • Dr Ellis notes that TL does not currently express a personal intention to act upon his grievances, which Dr Ellis attributes to his "self appointed dispensation from jihad." Dr Ellis goes on to say that "[i]t is not likely he applies this to others, and he sees it as a duty for true Muslims to use violence in the cause". TL told Dr Ellis that he would not seek out others. Dr Ellis considers that TL's "unstable personality is conversely influencing of others, and easily influenced." Dr Ellis considered it likely that TL would remain interested in material espousing violent or Islamic extremist beliefs. Dr Ellis says that TL "has not previously been proven to engage in group activity for terrorism, but has engaged in other group criminal activity. He has not been proven to express any formed plans for extremist action, but shows evidence of planning other criminal acts. He indicated he was prepared to die for prayers being instated in the supermax, and his actions are consistent with this". • In relation to protective factors, Dr Ellis considers that "many are absent". Dr Ellis concludes: TL displays a clinically significant number of the characteristics associated with terrorist related violence in groups and offences. His personality style is one that focusses on grievance and threat, making it difficult to trust others implicitly, and renders impulsive violence in response to stress more likely. He holds rigid and bombastic ideas about his role in the world, and also uses targeted and planned violence as a response. The use of religion to justify his angry response to a world that abused him when he was young likely covers his violent retributive urges with some acceptability. He has significant grievance to the state for his injury. He would most likely be at risk of extremist violence, starting with threats or use of internet posts if he gains access to others. He may inspire others to act, and can use his injury to gain sympathy to his cause. The risk factors that are present relate to his personality disorder, background of disadvantage and the attendant chaotic lifestyle that has accompanied this profile. • Dr Ellis considers that the risks presented by TL can be managed by an ESO and treatment interventions (should TL accept them). In relation to management in the community, Dr Ellis makes the following observations: i. Services will need to be "comprehensive and coordinated", and TL has many medical and disability needs that can provide a framework around interventions. ii. Management of TL in the community will pose challenges, particularly in relation to authenticity with supervising and treating staff. TL may interact superficially rather than engaging. Monitoring of compliance will be required to assist so interventions can occur to target specific risk behaviours. iii. Formal assessment of cognitive function would be useful if TL was willing to co-operate. iv. TL is more likely to respond to individual psychotherapy targeted as personality disorder than group psychological programs, but such treatment would rely on TL's participation. Its initial phases would focus on engagement and basic insight into the rationale for treatment. v. Interventions that can assist TL to achieve stable employment and stable accommodation are likely to have a greater impact on violence reduction and extremist association than cognitive behavioural programs aimed at violence and extremist thought reduction. • In relation to TL's conditions of supervision, Dr Ellis notes that who TL communicates and associates with is crucial to managing his risk. Dr Ellis considers that financial oversight is also of utility in risk management, as are conditions concerning accommodation. He says that search and seizure conditions will be required to monitor for internet use and possession or any literature related to terror activity. He notes that TL would not be able to personally hire vehicles, but if he did so knowing this would be of use (as they may be used in offending), and that place and travel restrictions are "less crucial unless he is transported by others". He considers that employment, volunteering and education ought to be encouraged, but that notice will assist with issues concerning association. He considers that communication and association, identity and extremism restrictions are "the key measures in managing the risk in this case…[i]t is the communication type offences that are the most concern". • In relation to health interventions, Dr Ellis observes: Health interventions are most important in terms of medication. He will require medication to manage his care of spinal injury, and some of these could be abused. Knowing about them will assist supervisors in assessing his progress. He will need disability assessment [to] obtain supports for appropriate accommodation. Psychiatric and psychological care in this case will only be able to be effectively achieved with consent. To provide viable therapy in this case, there must be ability to communicate with supervising officers to maintain objectivity and manage risk. This must be consented to by TL if treatment is to be provided. If this is not present, enforcing therapy is likely to be futile. • Dr Ellis considers that a three-year ESO would be appropriate in TL's case.

The opinion of Dr Seidler, Psychologist June 2022

The State has extracted in its written submissions the key aspects of Dr Seidler's assessment and opinion: • Dr Seidler met with TL for three hours on 7 June 2022. She observes that TL was "pleasant and amicable throughout the lengthy process" and was "cooperative with the assessment, including being responsive to questioning and receptive to requests for elaboration and clarification". In addition, Dr Seidler reviewed the documentary material set out in index form at Annexure A of her report. • TL told Dr Seidler about the incident in the HRMC that led to his injuries. He said that he decided to "riot" after officers at the HRMC made a decision to prevent Muslim inmates praying together. TL told Dr Seidler that at that time he did not care if the officers "bashed" or "killed" him because he considered that for "something you believe in, you do it right". TL refused to return to his cell as directed by officers. There are subsequently an altercation with officers in which TL sustained his injuries. • Dr Seidler identifies that TL would presently meet the criteria for an Antisocial Personality Disorder (ASPD), with other mental health conditions noted in the materials presently in remission. She considers, however, that "the core of TL's functioning lies in complex and unresolved Posttraumatic Stress Disorder and in my opinion, this vulnerability remains but is balanced and protected against by TL's strong religious faith.". Although TL has previously been assessed as having a mild intellectual disability, Dr Seidler considers that "TL does not present as someone functioning at the level of an intellectual disability. Rather, he impressed as eloquent, insightful and reflective, as well as possessing significant knowledge in his areas of interest". • Dr Seidler noted that TL was exposed to and experienced significant violence as a child: [56]. Both of TL's parents have significant criminal histories. TL has negative experiences of the foster care system and was not able to develop a stable attachment to a caregiver before being moved into group homes. TL reported to Dr Seidler that he became involved in the Mongrel Mob at the age of eighteen and was involved for the following four years, including by becoming National President at one point. He also identified that he had friends in Brothers for Life and that family members had been involved in the Comancheros, but that he did not want to be involved in these groups at an organisational level. He said that he had ceased activity with gangs and outlaw motor cycle groups about five years ago. • TL described having been "highly violent" over much of the time since his adolescence, and said that "he is able to disconnect emotionally from violence, such that he is detached and does not experience any empathy or feelings for victims of violence or others affected by his actions". He reflected that "violence has become normalised for him and he does not care about violence or how it may impact on others". At [97], Dr Seidler identifies that: TL was reflective about the fact that he is no longer capable of engaging in violence himself but he has contacts with others who could engage in such behaviour on his behalf if he wished. Even so, TL stated that he does not want to do this kind of thing because his children are his priority and he does not want to jeopardise being actively involved in their lives. • TL said that he had witnessed a number of deaths in his life and other "gruesome things" and has "become sensitised to such violence and does not feel anything anymore associated with such events". • In relation to his beliefs, Dr Seidler records the following: 108. TL acknowledged being active online and through social media with respect to accessing, researching, engaging with and disseminating extremist content. TL denied ever receiving any formal training in such ideology via the Internet but he claimed to have 'spread the word' online for the purposes of inspiring others to jihad. TL described this as an obligation for him in Islam. TL denied being presently engaged in such activity online and although he claimed that he could do so if he wanted to, he has no interest in such activity at the present time. • TL expressed the view that it "'core aspects of Islam' are attacked or disrespected. Then it is appropriate to respond to this conduct with violence." Dr Seidler went on to describe TL's views and his attitude to violent extremism in this way: 110. TL discussed with me how 'millions (of Muslims) were killed and raped' by Western forces looking for weapons of mass destruction in Afghanistan during the War on Terror. TL reflected that this was used as a justification for the killing of 'innocent people' in the September 11 attacks in New York. TL also commented that some would say that the people who died in these attacks were not innocent and when I asked him for his view, TL stated that he disagrees with the killing of 'innocents' and 'non-combatants', in addition to noting that 'jihad is not just being barbaric'. 111. With respect to his personal religious ideology, TL identified as a 'Salafi-jihadi', which he claimed makes him 'the most extreme person'. TL added that he considers others who share a similar ideology with whom he has engaged to be friends and these people have allegedly provided him with the 'best support' he has ever had. TL described other inmates in the HRMCC who hold a similar ideology to be his 'best mates' and it is challenging for him to have no contact with these people. However, TL expressed a commitment not to have contact with these people and he believes they would also be supportive of this so that he could maintain his freedom. TL also told me that he is supportive of Sharia Law. 112. Attitude to Violent Extremism/Terrorism: TL described himself as someone who has a strong commitment to violent jihad and this is a part of his religious and personal ideology. However, he claimed to disagree with individuals or groups who kill 'innocent people'. TL spoke about groups like Islamic State or Boko Haram who kill people without reasonable justification, which he claimed 'gives Islam and jihad a bad name'. However, TL added that he is supportive of engaging in acts of violence directed towards 'specific targets', such as military installations or Government officials. To this end, TL suggested that he is more supportive of groups like Al-Qa'ida that seek to attack 'specific targets'. 113. I asked TL specifically about his position on Islamic State and he claimed to disagree with this group and their actions. TL attributed this to Islamic State attacking Muslims and others who do not agree with them. TL noted that even though those in Islamic State are his 'brothers', he believes they have 'gone astray with some aspects of the religion'. 114. In sum, TL stated that he is supportive of terrorist organisations that seek to attack specific locations or targets rather than large groups of people who represent, in his view, groups inconsistent with the tenets of Islam. Notwithstanding, TL commented that he does support the beliefs of terrorist organisations in trying to support Muslims and establish an Islamic Caliphate. TL also stated that the only way to achieve such a place is via jihad. • TL stated that he had never been a formal member of a terrorist organisation or pledged allegiance to any group. He said that he had never acted on behalf of an organisation (by raising money or trying to recruit people) and that, while he could have engaged in such activity, he does not consider himself to be "knowledgeable enough" to do such things, and that his belief has always been prioritised with his being involved "on the front line", which he can no longer do physically. TL said that he had no intention of killing people or engaging in an act of terrorism in support of his beliefs, and when asked why he identified "there are other forms of fighting" and therefore other ways in which he can commit to jihad, "including caring for his children". In respect of his past and present beliefs, Dr Seidler's report includes the following: 117. TL reported that he has had a strong belief in and commitment to jihad for some years and previously, this motivated him in that 'all (he) wanted to do was fight'. Hence, TL stated that he was 'ready to fight, ready to die (and) ready to go overseas'. Within this context, TL described having had a strong commitment to engaging in an act of violent extremism, as a result of which he 'shut off before' and 'pushed everyone away'. To this end, TL reflected that if he thought too much about his children, his emotions would be heightened and he would not be able to remain so committed to waging violent jihad. 118. TL offered that he still believes strongly in 'violent jihad' but he claimed to have no intention to be involved in such activity anymore. Realistically, TL commented that despite his spinal injury, which prohibits his being physically involved in committing an act of violence, he would still be able to 'propagate' terrorism, for example by sending money to others or encouraging people to engage in acts of terrorism. However, TL told me that he has no intention of engaging in such behaviour because he will not 'jeopardise losing (his) kids again'. • Dr Seidler conducted a Personality Assessment Inventory (PAI) on TL. She observes that "the profile suggests that TL is someone who is self-centred and focussed on his physical health concerns to the exclusion of concern for others". She observes that his personality style has "a range of antisocial features" and that his behaviour is likely to be "reckless, impulsive and aggressive". However, she noted that TL's profile was "suggestive of someone who is motivated for psychological treatment". • Dr Seidler notes, in her assessment, that "TL described having made a commitment to engaging in jihad through an act of violent extremism and in many ways, he claimed to have spent his recent years preparing for this by training, by studying, and by disconnecting from his family and loved ones". Dr Seidler applied the VERA-2R tool to TL. Dr Seidler observes in relation to TL's beliefs, attitudes and ideology that "many of the factors in this domain load heavily on TL's risk. He endorsed a strong commitment to an ideology that promotes violence and these views appear to be long held for TL … TL is strongly supportive of jihad, in addition to which he expressed support for violence directed at specific targets (individual and location) associated with the Government or the military or against those who insult Islam or oppress Muslims". • Dr Seidler also identifies that there are "significant risks" in the domain of social context and intention for TL. She notes that he was a "long history of engaging, promotion, encouraging and developing content that reflects his extremist and violent ideology" and that, further he has "a history, over many years now, of seeking out, of prioritising and supporting relationships with others who also hold a violent and extremist Islamic ideology". In relation to TL's history, action and capacity, Dr Seidler considers that TL "has the skills and capacity to organise practical and financial support for terrorist violence". Dr Seidler identified that "there is no evidence for any protective influences" in TL's case. In summary, Dr Seidler observes: 178. Summary - Overall, TL presents with a strong, relevant and significant risks in a variety of domains assessed by this instrument. Further to this, there is little evidence of protective factors being present for TL that may temper against the aforementioned risks. Succinctly, TL has a long commitment to a violent and extremist ideology that promotes the idea of jihad. This ideology was formed for TL at a young age and was supported by strong ideological influences that TL sought out and maintained from early adolescence and which supported TL's already well-established beliefs in violence that were role modelled by family and others early in life. TL has a significant criminal history and has demonstrated the capacity for and commitment to violence. 179. Over some years, TL has cemented his violent and extremist ideology through his ongoing personal research, his engagement with others who hold similar views, attendance at a Mosque known to espouse such an ideology and through his online activities. This is also supported by TL's training in extremist ideology and with respect to weapons and martial arts. TL's personal network is comprised of people who are known to hold extremist views, some of whom are of national security interest and who have committed offences related to terrorism. TL, himself, reported to have had a previous commitment to engaging in jihad and he reported to have been training for this, in addition to seemingly trying to establish an Islamic Brotherhood in this country, where he and others could live under Sharia Law. 180. TL identifies as a New-Zealand/Australian and he does consider there to be some positive aspects to life in this country, where he would like to remain. However, TL also outwardly rejects democracy and he does not support the Government of Australia. Further to this, TL has a lack of empathy for others and whilst he does not agree with targeting innocent people, he does support the use of violence against those who seek to "oppress" Muslims or who insult his religion. 181. Taken together, there are serious risks in this case and this is further reinforced by TL's outstanding charges for engaging in acts in preparation for terrorism. TL denied these offences and he also claimed to have revised his commitment to engaging in violent acts or violent jihad himself following a serious spinal injury last year that has rendered him a paraplegic. Even so, TL has the potential to support others, to incite violent extremism, to promote a violent ideology and to access funding, support or resources that could be used in an act of terrorism. TL denies any interest in such activity but it is suggested that this is the area in which his risk will be most salient. • Dr Seidler applied the Violence Risk Scale (VRS) and assessed that TL's range fell in the High range. Dr Seidler also assessed TL's risk for future, generalised antisocial conduct according to the Level of Services/Case Management Inventory (LS/CMI). This indicated that TL was rated at a High risk of future antisocial conduct. • In respect of TL's overall risk of committing a serious terrorism offence, Dr Seidler's opinion is that "TL is considered to present with a range of risks that raise concern about the potential for future acts of terrorism or engagement in violent extremism. The primary contributors to this risk are TL's religious and extremist ideology, which includes a commitment to violent jihad, in addition to the range of behaviours that support his ideology" (p 68). Dr Seidler expresses the following view about how this risk could manifest (at p 69-70): For all of these reasons, prior to sustaining a serious spinal injury last year, I would have suggested that TL was capable of serious acts of extreme violence that would constitute a serious terrorism offence under the Act and which would have likely resulted in serious injury to others, including possible lethal violence. Given his spinal injury, TL no longer has the physical capacity to engage in such acts independently. However, he does have the capacity to incite such acts, to promote a violent and extremist ideology, to support others engaged in such action and to provide weaponry, financial or other such support for violent extremism. This is the most likely area in which TL's risk will now manifest and this could still result in his being involved, at least indirectly, in a serious terrorism offence. That being said, I note that TL denies being interested in such action himself, as he wants to prioritise his children. It is also noted that TL expressed the belief that the only appropriate expression of violent jihad for him is on the "front line". Now that this is not possible, it may temper against the risks evident in this case. It is also noted that TL has a strong desire to have status and reputation within his chosen peer group, with whom he seeks belonging and acceptance. Promoting, supporting or resourcing a terrorist act might provide him with this. Even so, it is noted that TL expressed that sustaining the spinal injury last year whilst engaging in behaviour that he considers to have been supportive of his religious beliefs has also served this purpose to a degree. • Dr Seidler considers that TL "requires supervision, management and intervention in order to assist in managing his risk to the community with respect to violent extremism or an act of terrorist violence" (at p 72). Dr Seidler does consider that the effectiveness of an ESO may be limited because TL has a history of non-compliance with rules and orders (at p 73). However, she considers that the risks associated with TL as: "so significant that releasing him without any conditions or supervision would be unwise, especially as any offence committed may be a serious offence, as defined by the relevant Act, even if TL does not commit this act directly himself. I would not expect TL's risk to attenuate in the near future given his ideological commitment and long-standing patterns of behaviour and relationships that support this ideology. For this reason, I would propose a longer term ESO of three years duration".

The Risk Assessment Reports of Ms Abreu in February and March 2022 and the Risk Management Reports of Mr Pumphrey and S.C. Wang

Ms Abreu prepared a Supplementary Risk Assessment Report in March 2022. She is a psychologist and currently holds the role of Senior Psychologist, Proactive Assessment and Intervention Service as part of Countering Violent Extremism Programs within Corrective Services New South Wales. She was not able to review TL because he refused to be interviewed but read updating assessments and material including Dr Shetty's assessment in March 2022 as to the level of willed controlled movement TL has in his thumbs and fingers, in both hands and his capacity to manoeuvre independently indoors by powered wheelchair using a joystick. Without access to the defendant, she completed a VRS assessment based on file information. She stated that she considered this may be an overestimation of potential risk, concluding that his risk of violence remained within the high range, but that she must note given his tetraplegic status that his current capacity to perpetrate an act of physical violence is significantly limited.
Ms Abreu highlighted the dynamic risk factors most salient to TL are his criminal attitudes, criminal peers, interpersonal aggression and emotional control, instability in relationships, impulsivity, cognitive distortions, community supports, violent lifestyle, violence cycle, and issues with compliance and supervision. She also noted that he appeared to continue to espouse an ideology that justifies the use of violence. She noted in this regard his intra-jail letters to other offenders that appeared to further express his support of violent jihad, for example a letter in July 2021 where TL stated: "Anyone who claims that those fighting jihad are terrorist then we say yes we are. Allah says terrorise the enemies of Allah and lay in wait for them. Also Allah says and prepare as much as you can from steeds of (illegible word) tanks guns weapons et cetera to terrorise the enemies of Allah whom you know and whom you don't know but whom Allah knows. The prophet Mohammed says I was sent with the sword until the people worship Allah."
Around the same time TL sent a letter to a different offender containing a hand drawn picture of a gun with the words "Armed and ready Australia".
Ms Abreu also referred to TL's historical verbalisation of rejection of the democratic system and norms and laws of Australian society and that he demonstrates a high level of susceptibility to influence from others. He has historically accessed material identified as espousing a violent extremism narrative. Since returning to custody he has been found to be in possession of numerous materials deemed reflective of extremist ideological views of Islam and concepts promoted by radical Islamists and Salafists. Corrective Services Intel reports indicate that TL watched together with his cellmate, several videos on a USB which were deemed to have a connection to extremist terrorist groups and ideologies, including one video produced by Islamic State media that reportedly containing graphic imagery of beheadings and that TL was noted to be heard to be laughing during the scenes of the beheadings and directing his cellmate's attention to it.
Ms Abreu set out her review of various potential risk scenarios for TL including that given TL continues to exhibit relevant underlying extremist ideologies and motivations, whilst disabled physically, he still has a high capacity in other forms such as to connect with others to influence and be influenced by them, to incite others, and to access resources and funds. She also noted TL's associations and connections to others continues to be a relevant risk factor, despite his injury.
Based on Ms Abreru's assessment, TL continues to remain in the high range for risk of engaging in an act of violence, politically motivated violence and/or terrorism activity and this warrants both monitoring and active intervention to manage the risk.
Mr Pumphrey, described as Team Leader in the Terrorism High-Risk Offender Unit within Corrective Services carried out an analysis of OIMS (Offender Integrated Management System) records, police facts sheets, criminal history and the risk assessment report by Ms Abreu in February 2022 as well as the assessment report of Dr Shetty dated February 2022. Mr Pumphrey concluded that there will need to be high intensity multi-agency and multidisciplinary case management with a comprehensive case management plan including interventions to manage the risks presented by TL. He provided point by point analysis as to why the conditions proposed by the State were appropriate and necessary.
Senior Constable Wang, an officer attached to the High-Risk Terrorist Offenders Unit Counter - Terrorism Command within the New South Wales Police provided some generalities in terms of risk having reviewed the documentation created by others. He explained in a little more detail the need for supervision of association and location, noting that prior knowledge and understanding of the movements of the defendant are important to ensure his locations are known in advance and possible risks can be mitigated despite his current position as a tetraplegic and needing full-time care. Having conducted an analysis of the proposed conditions, Senior Constable Wang put forward the view that the conditions were necessary to prevent the defendant from "self -radicalising", and to reduce the risk of reoffending as well as the risk that he might disseminate such materials for the purpose of radicalising or influencing others.

Principles and the Operation of the Act

The principles and operation of the Act and relevant authorities have been helpfully and accurately summarised in the State's written submissions at [97] to [114]: • The primary object of the THRO Act is to "provide for the extended supervision and continuing detention of certain defendants posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community" (s. 3). "Serious terrorism offences" are defined to be offences against Part 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s. 4(1)). • "Serious terrorism offences" are defined to be offences against Part 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s. 4(1)). Those offences include engaging in a terrorist act (s. 101.1 of the Criminal Code); doing acts in preparation for, or planning, a terrorist act (s. 101.6); membership of a terrorist organisation (s. 102.3); recruiting for a terrorist organisation (s. 102.4); getting funds to, from or for a terrorist organisation (s. 102.6); and providing support to a terrorist organisation (s. 102.7). These offences cover a very broad range of conduct and do not require the commission of an act of violence. • It is important to note 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 THRO Act. However, similar or closely related conduct might readily amount to a threat of action that falls within the definition of "terrorist act", or establish one of the planning, preparation, recruiting or facilitation offences in Part 5.3. • The statutory pre-conditions to the making of an ESO are set out in s. 20 of the THRO Act. The plaintiff is relevantly required to satisfy the Court of the following conditions: a. That the defendant is an "eligible offender" (s. 20). b. That the defendant was in custody or under supervision at the time the original application for the order was filed while serving a sentence of imprisonment for a NSW indictable offence (s. 20(a)). c. That the ESO application is made in accordance with Part 2 of the THRO Act (s. 20(b)). Those requirements are set out in s. 23. d. That the defendant is (s. 20(c)): i. a "convicted NSW terrorist offender"; ii. "convicted NSW underlying terrorism offender"; or iii. a "convicted NSW terrorism activity offender." e. That the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a "serious terrorism offence" if not kept under supervision under an ESO (s. 20(d)). • In determining whether to make an ESO, the safety of the community must be the Court's paramount consideration (s. 25(2)). The Court is also required to consider a series of factors set out in s. 25(3). • Before making an ESO, the Court must be satisfied that the offender is: f. a "convicted NSW terrorist offender", g. a "convicted NSW underlying terrorism offender", or h. a "convicted NSW terrorism activity offender": s. 20(c). • Under s. 10(1) of the THRO Act, a person will be a convicted NSW terrorism activity offender where they are serving a sentence of imprisonment for a NSW indictable offence, or continuing to be supervised after serving such a sentence and the following relevantly apply: (1)(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, … • Section 10(1A) then relevantly provides: 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, … • The term "terrorist act", as it appears in s. 10(1)(c) takes the same meaning as given to the term in Part 5.3 of the Commonwealth Criminal Code. There, the term is defined as follows (see s. 100.1): "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. • Subsections (2) and (3) referred to in the above definition read as follows: (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 R v Lodhi [2006] NSWSC 584, Whealy J observed that the definition of "terrorist act" in the Criminal Code "postulates an action or threat of action of the widest possible kind" (at [75]). In State of New South Wales v Cheeema (Preliminary) [2020] NSWSC 876, Johnson J observed: "[84] In considering the breadth of terrorism offences in the Criminal Code (Cth), emphasis has been placed upon the legislative policy underlying the creation of a range of preparatory offences which serve to criminalise conduct which would not be caught by the general law of criminal attempt. In Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121, Spigelman CJ (McClellan CJ at CL and Sully J agreeing) said (at [66]): 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. [85] These principles have been emphasised and applied in later decisions. In Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, Barr J (at [211]) observed that ss 101.4, 101.5 and 101.6 Criminal Code (Cth) "make offensive acts of a preliminary nature falling short, some well short, of attempt". In the same case, Price J emphasised (at [229]) that offences under ss 101.4, 101.5 and 101.6 are not crimes of attempt but "anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it". Price J observed as well (at [242]) that acts done in preparation for, or planning, a terrorist act undoubtedly can embrace a wide range of conduct." • The term "violent extremism" is not defined in the THRO Act. It was added to s. 10 by the Community Protection Legislation Amendment Bill 2018 (the Bill). In New South Wales v Ibrahim (Final) [2021] NSWSC 793, Walton J said: "[81] The term "violent extremism" is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines "extremism" as "[t]he holding of extreme political or religious views; fanaticism". Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views: New South Wales v Elmir [2019] NSWSC 1867 at [34]. In my view, the inclusion of the term "violent extremism" was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, violent extremism does not necessarily require any intention to advance political, religious or ideological causes or influence government or the public by intimidation. [82] The juxtaposition of the concept "violent extremism" with the concept of "terrorist act" indicates that the concept of violent extremism concerned some acts which were separate and distinct from those which fall within the definition of a terrorist act, although plainly the two concepts are not mutually exclusive." • Section 11 of the THRO Act specifically lists a series of matters the Court may take into account in determining whether the defendant is a convicted NSW terrorism activity offender. • The Court is only able to make an ESO if satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order (s. 20(d)). The Court is not required to determine that the risk of committing a serious terrorism offence is "more likely than not" (s. 21). • The elements of s. 20(d) were considered by the NSW Court of Appeal in State of New South Wales v Naaman (No 2). There, the Court summarised the key aspects of the provision as follows (at [29]): "(1) First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. (2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". (4) Fourthly, that forward-looking evaluation turns upon the premise that the eligible defendant is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence". It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised defendant committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the defendant were kept under supervision, that might ground an exercise of discretion to decline to make an order." • In New South Wales v Collingwood [2021] NSWSC 1365 Hamill J made the following comments: "[44] There are always inherent risks involved in cases such as these, but the task for this Court is to determine when those risks rise to the level of being "unacceptable". The determination of whether a risk is "unacceptable" is an evaluative task having regard to the context and purpose of the Act: Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51]. The assessment of risk must be undertaken to ensure, but not necessarily guarantee, the safety and protection of the community against serious terrorism offences: Lynn v New South Wales at [61]. It requires a consideration of the likelihood that the offender will actually commit a serious terrorism offence, if not kept under supervision, as well as an assessment of the magnitude of the consequences if the risk manifests. Even a very small chance that a risk may manifest, will be unacceptable if it may have catastrophic or severe consequences." • Similarly, in New South Wales v Mustapha (Final) [2022] NSWSC 116, having made reference to Naaman (No 2), N Adams J observed: "[26] … The phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA). In New South Wales v Pacey (Final) [2015] NSWSC 1983 , Harrison J observed (at [43]): It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." • Subsequent authorities have eschewed a requirement to specify the precise "serious terrorism offence": State of NSW v Cheema [2020] NSWSC 876 at [189]; State of NSW v Alam [2020] NSWSC 295 at [129]; State of New South Wales v Gavin [2022] NSWSC 84 at [33]."

Decision and Evaluation of Mandatory Statutory considerations

I am satisfied that all the statutory preconditions have been met. The defendant is an eligible offender who was in custody at the time the original application for the order was filed, and at that time he was serving a sentence of imprisonment for a New South Wales indictable offence. The application was made in accordance with Part 2 of the Act.
I am satisfied to a high degree of probability that TL poses an unacceptable risk of committing a serious terrorism offense if not kept under supervision under an ESO.
In reaching that view I have carefully considered the factors set out in s 25(3) of the Act and the evidence tendered addressing those factors. I have also borne in mind that whilst the defendant is now the subject of significant physical limitations given his spinal cord injury, (and putting to one side the unproven potential for some limited further recovery of use of his arms), he still has a problematic belief system deeply ingrained and carries with him an unacceptable risk that he will commit a serious terrorism offence in the nature of Part 5.3 offences such as the planning, preparation, recruiting or facilitation offences described in that part of the Criminal Code Act 1995 (NSW).

Conditions in dispute - 5, 14, 31 and 37

Section 29 of the Act provides for conditions that may be imposed on extended or interim supervision orders. Subsection 1 provides that such an order "may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate, including but not limited to directions requiring the offender to do any one or more of the following". This is followed by a series of potential conditions (a) to (t).
Subsection 1A of s 29 provides that "Unless the Court orders differently" and "without limiting the conditions that the court may impose under ss 1", an ESO… "must include conditions requiring the eligible offender…" and this is followed by a series of conditions covering supervision, electronic monitoring, residence, a prohibition from leaving New South Wales except with approval, to submit to search of the offenders person and residence, not to use prohibited drugs, to comply with rules of approved accommodation, to submit to drug and alcohol testing, not to possess certain firearms, guns or explosive devices, to be available to interview as requested, to undergo ongoing psychological or psychiatric assessment or counselling as directed, not to start a new job without prior approval, to obey reasonable direction, to permit an enforcement officer ("EO") to visit and enter premises, to notify of any change in employment, not to associate, not to change name or appearance and not to frequent or visit any place or district specified by an EO.
The rationale behind this range of potential conditions is obvious however s 29(1A) does not preclude the Court from "ordering differently", and so, amongst other things, and consistently within the objects of the Act, it permits the Court to word a condition differently if it considers that to be appropriate.
Condition 5 provides for the need for the defendant to tell an EO the details of vehicles he intends to hire or use. Given the defendant's current state of disability, he is not able to operate a vehicle on his own and this means that he would need to provide details of vehicles that other people will be using to transport him.
The defendant requested that he not be required to notify an EO of the colour, make, model and registration of any vehicle he uses by way of non-emergency patient transport or with an employed carer or medical disability or support worker or taxi.
In response, the State argued that the proposed exceptions were too broad and encompassed transport vehicles not used for therapeutic purposes and that the absolution from notifying the EO should be limited to emergency vehicles.
I agree with the State's position. Vehicle use and deployment is a matter that entails some potential risk for use for, or in association with the planning of, or execution of, a terrorist purpose. It would be naïve to assume a person retained as a care worker or support worker or assistant - which requires no recognised ethical checks or boundaries - would be someone who could never be used or manipulated for other purposes, or a person who harbours problematic beliefs, be engaged in such a role. Further, those who supervise TL should be aware of vehicles he is in so he can be located if necessary in the community.
Accordingly, I confine the position to ambulances only as immune from the requirements of the condition. At a practical level, the condition just requires some forethought so that the EO is kept informed of what vehicles are being used. Obviously in the case of an emergency, ambulance transport would be both appropriate and necessary, and could be identified on brief inquiry by an EO if required.
In respect of condition 14 which deals with where the defendant can go, the area for dispute was that the defendant wanted a rider on the condition that the EO "must believe on reasonable grounds that the defendant visiting the place or district will increase the defendant's risk of committing a serious terrorism offence or otherwise failing to comply with another condition of this order".
The State argued that in some circumstances, it may be necessary to prevent TL from visiting a place before an enforcement officer has had the opportunity to form the belief regarding risk, for example because a risk assessment is in process. It also may not be appropriate for an EO to disclose to TL the reasons underlying a direction not to visit a place as to do so might reveal sensitive information.
I accept the State's position on this condition and consider it one that reduces risks presented by TL and accordingly I impose the condition in the form sought by the State.
Condition 23 deals with ongoing psychological or psychiatric assessment and counselling. The area for dispute is in relation to use of the word "undergo". The defendant submitted that this potentially requires a kind of unmeasurable mandatory participation or subjective evaluation of the extent of his participation in, for example, a psychological counselling process. It is apt to cause problems because it could be argued that if the defendant does not change his beliefs and views, that he is not "undergoing" the assessment and/or treatment appropriately. Given that failure to comply with conditions have criminal sanctions, this is an important matter to consider.
The State submitted that the language used - "undergo" - reflects the language in s 29(1A)(k) which provides for the mandatory conditions that should be included in an ESO. To respond to TL's risk profile, mere attendance is insufficient. For example, attendance, but a failure to undergo a psychiatric assessment would impede the ongoing management of TL's risk factors.
I do not agree that the effect of s 29(1A)(k) is to mandate the wordings in that subsection for the reasons I have set out at [25] to [26]. However this is a difficult debate to resolve because both competing submissions have some merit. I observe anecdotally on a review of like conditions imposed on other offenders under the Act, a number of those simply refer to the requirement to "attend".
In my view "attend" is too low a requirement but use of the word "undergo" entails a subjective and potentially argumentative interpretation of TL's response to counselling.
In my view the language that should be used is that the defendant must "attend and participate in" ongoing psychological or psychiatric assessment or counselling… etc as directed. This entails both physical attendance and involvement in the process sought to be pursued by the relevant healthcare practitioner.
Condition 31 deals with the defendant's use of telephone or electronic communication. This is obviously a significant condition given the defendant's physical limitations and his assertions to, in particular to Dr Seidler who reviewed him in June 2022, that whilst he could no longer physically be involved in committing an act of violence, he would still be able to propagate terrorism for example by sending money to others or encouraging people to engage in acts of terrorism, despite him then saying that he had no intention of engaging in such behaviour because he "will not jeopardise losing his kids again".
Dr Ellis in his June 2022 assessment noted the defendant's self-appointed dispensation from Jihad but that he maintains the belief that it is a duty for true Muslims to use violence in the cause and that despite TL telling Dr Ellis he would not seek out like-minded others, Dr Ellis considered it a risk because of TL's unstable personality and his ability to influence others and be easily influenced. Dr Ellis observed that whilst TL has not previously been proven to engage in group activity for terrorism, he has engaged in other group criminal activity he has not been proven to express any formed plans for extremist action, but shows evidence of planning other criminal acts. TL also indicated that he was prepared to die for prayers being instated in the Super-Max and his actions were consistent with this.
Given TL's physical limitations, the obvious practical risk he presents would be planning, communicating and enabling others to carry out serious terrorism offences. Depending on what line is crossed, that behaviour itself would be considered to be a serious terrorism offence if it reaches the level of planning, preparation recruiting or facilitation offences such as those set out in Part 5.3 of the Criminal Code Act.
The defendant did not object to the general limiting condition being imposed, but argued that use of the term "knowingly cause" another person to access or use on the defendant's behalf, was an arcane phrase that could cause confusion.
The State submitted that the term "knowingly cause" is able to be understood and clarifies the requisite intention while ensuring that the condition can operate appropriately to respond to TL's risk factors. Use of the word "ask" confines the condition in a way which may exclude behaviour that does amount to risk posed by TL.
I accept the State's submission. I do not consider the term "knowingly cause" to be too vague. I consider it a necessary addition to the wording of the condition to capture certain types of behaviour that would not be caught by use of the word "ask".
The defendant also sought a carve out to the condition to the effect that certain specified persons or staff performing care duties, medical, disability or support workers would be able to "order food, clothes, toiletries and household items for the defendant". The origin of this proposed addition seems to be queries raised by police over the defendant's sister ordering takeaway food for the defendant online.
I am of the view that any carveout should be limited to essential items only. A general carveout referring to "household items" is too wide and could entail items that have multiple uses including problematic uses. Accordingly, the addition I have ordered is as follows: "… other than employed or engaged professional care staff performing caring duties or medical, disability or support workers ordering food, clothes, toiletries or items required for the management of the defendant's disabilities and/or care needs."

Orders

I make the following orders: 1. Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) the defendant is subject to an extended supervision order for a period of 3 years from 4 August 2022. 2. Pursuant to s 29(1) of the Terrorism High Risk Offenders Act 2017 (NSW), the defendant for the period of the extended supervision order is to comply with the conditions set out in the Schedule of Conditions attached to this judgment.

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: 22 February 2024

Terrorism High Risk Offenders Act 2017(NSW)

Criminal Code Act 1995(NSW)

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (4)

Cases Cited (16)