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[2026] NSWSC 587
Supreme Court of NSW
2026-05-27
Muston J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Wheatley (Preliminary) [2026] NSWSC 587
Hearing dates: 19 May 2026
Date of orders: 27 May 2026
Decision date: 27 May 2026
Jurisdiction: Common Law
Before: Muston J
Decision: (1) An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”):
(a) appointing a qualified psychiatrist and registered psychologist to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
(b) directing the defendant to attend those examinations.
(2) An order pursuant to ss 27 and 28(1) of the THRO Act that the defendant be subject to an Interim Supervision Order (“ISO”) commencing on 2 June 2026 (being the date of the expiry of his current sentence of imprisonment) for a period of 28 days thereafter.
(3) An order pursuant to s 29(1) of the THRO Act directing that the defendant comply with the conditions set out in the schedule attached to this judgment (Schedule A) for the duration of the ISO.
(4) An order restricting access to the Court’s file in the proceedings such that access will be permitted to a non-party to the proceedings only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
Catchwords: HIGH RISK OFFENDERS — preliminary hearing — application for Interim Supervision Order — whether defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a supervision order
Legislation Cited: Crimes Act 1900 (NSW), s 93IB
Crimes (Administration of Sentences) Act 1999 (NSW), s 130
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing and Procedure) Act 1999 (NSW), s 8
Criminal Procedure Act 1986 (NSW), s 5
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4, 7, 10, 20, 21, 23, 24, 25, 27, 28, 29
Criminal Code (Cth), pt 5.3, ss 5.2, 100, 101, 192
Cases Cited: Attorney General (NSW) v Winters [2007] NSWSC 611
New South Wales v BP (Preliminary) [2019] NSWSC 699
New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191
New South Wales v Sturgeon [2019] NSWSC 559
State of New South Wales v Galvin [2022] NSWSC 84
State of New South Wales v Mohommed Farhat [2026] NSWSC 19
State of New South Wales v Naaman (No 2) [2018] NSWCA 328
State of New South Wales v Richardson (Preliminary) (No 2) [2023] NSWSC 794
State of NSW v Elmir (Final) [2019] NSWSC 1867
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Category: Procedural rulings
Parties: State of New South Wales (plaintiff)
Dylan Wheatley (defendant)
Representation: Counsel:
M England SC / R McEwen (Plaintiff)
C O’Donnell SC / J Wilcox (Defendant)
Solicitors:
Crown Solicitors’ Office (Plaintiff)
Legal Aid Commission (Defendant)
File Number(s): 2026/119879
By summons filed 24 March 2026, the State of New South Wales seeks orders that the defendant, Dylan Wheatley, be subject to an Extended Supervision Order (“ESO”) for a period of three years and be subject to certain conditions whilst subject to that ESO. These orders are sought pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the “THRO Act”).
At this stage, the State seeks the following interim relief:
An order pursuant to s 24(5) of the THRO Act:
(a) appointing a qualified psychiatrist and registered psychologist to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the defendant to attend those examinations.
An order pursuant to ss 27 and 28(1) of the THRO Act that the defendant be subject to an Interim Supervision Order (“ISO”) commencing on 2 June 2026 (being the date of the expiry of his current sentence of imprisonment) for a period of 28 days thereafter.
An order pursuant to s 29(1) of the THRO Act directing that the defendant comply with the conditions set out in the schedule to the Summons for the duration of the ISO.
An order restricting access to the Court’s file in the proceedings such that access will be permitted to a non-party to the proceedings only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
My consideration of the issues raised by the State’s preliminary application has been greatly assisted by the parties’ submissions and a statement of facts, which the defendant agreed (for the purposes of this preliminary hearing) is an accurate summary of the State’s supporting documentation.
(1) The primary object of this 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.
(2) Another object of this Act is to encourage these offenders to undertake rehabilitation.
As is made clear in s 3(1), the THRO Act seeks to further those objects through the imposition of continuing detention orders and ESOs. I return below to the circumstances in which the Court can make an ESO as they are also central to the determination of the current application.
Before hearing the State’s substantive application for an ESO, the Court must conduct a preliminary hearing: s 24(4) of the THRO Act. These reasons address the relief sought by the State against the defendant at that preliminary hearing.
If, following the preliminary hearing, the Court is satisfied that the matters alleged in the State’s supporting documentation would, if proved, justify the making of an ESO, it must make orders to the effect of those sought by the State for the examination of the defendant by a psychiatrist and a psychologist: s 24(5) of the THRO Act.
Pursuant to s 27 of the THRO Act, the Court may also make an ISO in relation to the defendant if, following this preliminary hearing, it reaches the view that:
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Unlike the requirement that the Court make orders for the examination of the defendant by a psychiatrist and a psychologist arising under s 24(5) of the THRO Act, the power to make an ISO is discretionary: State of New South Wales v Richardson (Preliminary) (No 2) [2023] NSWSC 794 at [9]. In the exercise of that discretion, it is appropriate to have regard to the objects of the legislation and to give weight to risk avoidance: Attorney General (NSW) v Winters [2007] NSWSC 611 at [7]; New South Wales v BP (Preliminary) [2019] NSWSC 699 at [64]; New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191 at [25].
The custodial sentence currently being served by the defendant for the index offence will expire on 2 June 2026. There is more than a mere possibility that the State’s substantive application for an ESO will not be determined before that date. Accordingly, I am satisfied that the defendant’s current custody will expire before the proceedings are determined in the sense discussed by Hamill J in State of New South Wales v Mohommed Farhat [2026] NSWSC 19 at [48]-[55].
The real issue to be determined at this stage is whether the matters alleged in the State’s supporting documentation justify the making of an ESO; there otherwise being no discretionary factors telling against the making of an ISO in the present case.
In so far as it is presently relevant, s 20 of the THRO Act provides that the Court has power to make an ESO where:
the defendant is an “eligible offender”;
the defendant is in custody serving a sentence of imprisonment for a NSW indictable offence;
an application is made in accordance with Pt 2 of the THRO Act;
it is satisfied that the defendant is “a convicted NSW terrorism activity offender”; and
it “is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order”.
I address each of these requirements below. Before doing so, I note that in considering whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO for the purposes of both ss 24(5) and 27 of the THRO Act, the Court applies a “lower standard” than that which is to be applied when ultimately determining whether to make an ESO under s 20. In State of New South Wales v Naaman (No 2) [2018] NSWCA 328, the Court of Appeal observed, at [17], that:
“Broadly speaking, the [THRO] Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order…” (Emphasis added).
“The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or [an] ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by [a] defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [98].”
The defendant accepted that he is an “eligible offender” for the purposes of the THRO Act. Having reviewed the supporting documentation, I am satisfied that this concession was properly made.
The term “eligible offender” is defined by s 7 of the THRO Act as a person who is:
(a) 18 years of age or older, and
(b) serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence.
In the early hours of 3 August 2025, the defendant was socialising at the Big Hostel in Surry Hills, where he was staying. He got into a disagreement with another patron at the hostel. The defendant subsequently informed police that the disagreement began because the patron described Australia as a "shit country". The defendant began yelling and behaving aggressively. The hostel manager asked him to leave and contacted the police.
Upon arrival at the hostel, police introduced themselves to the defendant. They observed that he was behaving erratically towards members of the public and "screaming in an aggressive manner". The attending officers asked the defendant whether he had any weapons. He volunteered to them that he had a knife in his jacket pocket and "multiple knives" in his suitcase.
The attending officers conducted a search and located the following knives:
a small folding knife with a black handle and a 10cm blade inside the left jacket pocket;
a large hunting knife in a sheath with a 29cm blade in the suitcase;
a "gut knife" in a sheath with a 19cm blade in the suitcase;
a large hunting knife in a sheath with a 29cm blade in the suitcase;
a small hunting knife in a sheath with a 12cm blade; and
a medium sized hunting knife in a sheath with a 19cm blade.
The defendant said that the knives in the suitcase had sentimental value and that he carried them everywhere he goes. All the knives were seized. The defendant was arrested and transported to Surry Hills Police Station where he participated in a recorded interview.
During his interview, the defendant said that all of the knives had been in his suitcase as he travelled by bus and train to Sydney but that, on arrival, he had removed the small folding knife and placed it in his pocket for self-defence; indicating that he did this due to what he understood to be the crime rates in Sydney.
The defendant was charged with two counts of having custody of a knife in a public place contrary to s 93IB(1) of the Crimes Act 1900 (NSW). The first charge related to the small folding knife that the defendant had in his pocket on 3 August 2025. The second charge related to the five larger knives that he had in his suitcase on that occasion.
On 6 August 2025, he entered pleas of guilty to both charges and was convicted in the Local Court. On the first charge, he was sentenced to a Community Correction Order pursuant to s 8 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) for a term of 12 months commencing on 6 August 2025. In relation to the second charge, he was sentenced to 10 months imprisonment, commencing on 3 August 2025 and expiring on 2 June 2026 (with a non-parole period of 4 months expiring on 2 December 2025).
A severity appeal brought by the defendant was dismissed by the District Court on 20 September 2025.
On 28 November 2025, the State Parole Authority made an order revoking the defendant’s statutory parole order on the basis that he “poses a serious identifiable risk to the safety of the community” pursuant to s 130(1) of the Crimes (Administration of Sentences) Act 1999 (NSW).
The term “NSW indictable offence” is defined by s 4 of the THRO Act as:
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).
While the defendant’s charges were dealt with summarily in the Local Court, proceedings for the offence created by s 93IB(1) of the Crimes Act may be taken on indictment: s 5 of the Criminal Procedure Act 1986 (NSW). The defendant is currently in custody serving the sentence imposed upon him following his conviction for this offence.
In these circumstances, the supporting documentation establishes that the defendant is currently “serving a sentence of imprisonment for a NSW indictable offence”.
(1) An application for an extended supervision order may be made only in respect of an eligible offender who is in custody or under supervision—
(a) while serving a sentence of imprisonment for a NSW indictable offence, or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(2) An application for an extended supervision order in respect of an eligible offender may not be made until the last 12 months of the offender’s current custody or supervision.
(3) An application must be supported by documentation—
(a) that addresses each of the matters referred to in section 25 (3), and
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert) that assesses the likelihood of the eligible offender committing a serious terrorism offence.
(4) An application may indicate the kinds of conditions (in addition to or instead of the conditions referred to in section 29 (1A)) that are considered to be appropriate for inclusion under section 29 in the event that an extended supervision order is made.
The requirements set out in s 23(1) of the THRO Act merely repeat the anterior jurisdictional matters addressed above. For the reasons I have already given, I am satisfied that the State’s application satisfies these requirements.
As the defendant’s sentence for the index offence was less than 12 months, I am satisfied that the State’s application also meets the requirements of s 23(2) of the THRO Act.
Finally, the supporting documentation relied upon by the State satisfies the requirements of s 23(3) of the THRO Act.
Accordingly, I am satisfied that the State’s application was made in accordance with Pt 2 of the THRO Act.
10 Convicted NSW terrorism activity offender
(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if 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–
…
(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.
(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.
(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). (Emphasis in the original).
The State submitted that the requirements of both s 10(1)(c)(i) and (ii) are satisfied in this case because the supporting documentation establishes that the defendant:
has made statements advocating support for terrorism or violent extremism, including by endorsing or promoting neo-Nazi ideology and displaying Nazi symbols and iconography; and
has had a personal association with the National Socialist Network (NSN), which is a neo-Nazi organisation.
In so far as the defendant’s personal association with the NSN is concerned, the supporting documentation clearly establishes that in early 2025 the defendant submitted an online membership inquiry via the NSN’s website. This inquiry was the catalyst for a lengthy exchange of mobile telephone messages between “Ted” (a representative of the NSN) and “John Lebowski” (an alias frequently used by the defendant). They exchanged messages over a period of approximately four months.
Early in this exchange, the defendant stated that he would “like to join the NSN” and that he was “a proud national socialist” and would “like to be apart (sic) of the community”.
At that time, the defendant informed “Ted” that he was only 17 years old, and that he lived in a suburb of Queensland’s Gold Coast. He said that he loved Australia and wanted “to keep it a white country”. He shared a photograph of himself with a shaved head, standing in front of a prominently displayed Nazi flag. “Ted’s” message in response to this information read:
“Excellent mate. We have some decent men on the Gold Coast. First step is a vetting phone call.”
In response, the defendant said that “[t]his is a really big deal to me, I really want to be apart (sic) of the Australian national socialists”.
Subsequent messages between “Ted” and the defendant make clear that the proposed “vetting phone call” took place in March 2025. The defendant was subsequently invited to attend NSN “training” in a suburban park in the Queensland suburb of Loganlea. The supporting documentation does not make clear what this “training” involved, but “Ted” suggested that the defendant:
“Wear normal clothes and running shoes. Bring a water bottle. If you have a mouthguard, Boxing gloves and shin pads, bring those as well. But all good if you don’t. We have gear that you can borrow.”
The defendant attended the NSN “training”. Contemporaneous messages suggest that, while there, he put on a balaclava and took a number of photographs.
Of the decision to wear a balaclava, the defendant said:
“I put the balaclava on because I wanted to avoid being seen as much as possible, people have been telling me that the government could start to consider national socialists to be terrorists
…
But I won’t wear one next time, I am proud to be a national socialists (sic) & I don’t care if I’m prosecuted for it”.
“For memories, pretty hectic, training with national socialists for the first time, wanted to capture the moment
Should I delete it?”
“Yeah bro we control photography so that people’s faces don’t get leaked. Some of us have sensitive jobs.
Also, balaclavas are not required at training. We only use them for black bloc demonstrations and when we are being overt. Or other forms of activism when concealing your face is required. They’re unnecessary at training at a park when there’s families and kids around. In fact a balaclava in that situation is only going to get the cops called on you. In five years we have never had the cops hassle us at training. Training is (sic) a park is completely legal.”
In May 2025, “Ted” asked the defendant why he had not been at training recently. The defendant told “Ted” that he needed to get a car before he could start attending training more frequently. He went on to indicate that the police had taken his phone and laptop in 2024 “for all the things I’ve been posting about national socialism”. He indicated that he would not tell anyone about the police taking his devices or labelling him as a potential terrorist because he did not “want to insite (sic) fear into our fellow National Socialist brothers”.
“Ted” asked why the police had confiscated the defendant’s devices. The defendant responded:
“Stuff I had been posting about national socialism on my Instagram… Anti Jewish, national socialist & pro Hitler stuff… I thought we had feee(sic) speech but I check out constitution & we don’t have a right to say whatever we want… Pretty fucked up…”
Ted:
“We don’t have total free speech. High court has ruled that we have freedom of political expression. Of course, the cops don’t give a fuck, and persecute us anyway. That’s why we are taking a challenge to the high court.”
The defendant:
…
“Hopefully we get some of our rights back, I wish I could salute my fellow brothers in public”
…
“Yeah they just took my shit for Instagram posts, I felt violated, like my rights had just been stripped from me
There (sic) laws & specific procedures for everything unless you criticise the Jews & are pro Hitler
I also posted a lot of christian things so the combination of all my beliefs & that fact I was preaching them all the time probably made their blood boil
They’re probably watching us all the time, they probably add any National Socialist to a watchlist, the police called me a potential terrorist
They’ll probably in act (sic) a law without us knowing saying that we should all be put in jail for safety the Jewish community”
Ted:
“You’re overthinking it. Be smart, but not paranoid. Yes the anarchy-tyranny system sucks but we have to be stoic and learn to live in it, whilst we work to take power.
You need to be extremely careful about what you are posting online. Anything that could even be interpreted as a threat, or incitement to violence is a no go. The new hate speech laws are insane.”
…
Ted:
“We’re going to win. We will have a registered community organisation and political party within a year. And the high court challenge will win us legal protections and free speech. The police will find it harder to fuck with us once we’re a party.”
The defendant:
“Fuck yeah
But nearly everyone is demoralised & refuses to believe the truth even if you gave them hours of reasonable & logic statements
Do you reckon we’ll be able to get enough our fellow whites to take power, or do you reckon we’ll have to build strong enough legion & take over with force
Just something I have been wondering lately”
Ted:
“Average Australians aren’t NatSocs, but they are racist. They can see that their suburbs are turning into India and they don’t like it. The response we received from our Adelaide Australia Day rally shows that the public is hungry for change. They (sic) organisation that we are building will harness them, and turned them into Hitler soldiers.”
The defendant:
“Fuck yeah
1488, hiel (sic) Hitler & god be with us
Hopefully everything goes as planned”
Ted:
“We’re meeting at a gym this Sunday morning in Underwood. 9am.”
It is apparent from subsequent messages that the defendant attended a later NSN gathering at a public gym, wearing an item of clothing which displayed the “SS runes”.
The supporting documentation includes a report dated 4 March 2026 prepared by Dr Joshua Roose. Dr Roose is an Associate Professor of Politics at the Alfred Deakin Institute for Citizenship and Globalisation at Deakin University. In his report, Dr Roose describes the NSN as:
“An organised contemporary National Socialist group in Australia whose ideological foundations expressly endorse the creation of a “National Socialist Australia.” As detailed below, members of contemporary neo-Nazi and acceleration list organisations have been charged with or convicted of terrorism-related offences in Australia, and multiple such organisations have been formally designated as terrorist entities. The National Socialist Network operates within that broader extremist ecosystem. Accordingly, the group referenced in the material is connected to movements with established links to violent extremism.”
“National Socialism and Neo-Nazism
National Socialism emerged in early 20th-century Germany and was institutionalised under Adolf Hitler between 1933 and 1945. It combined racial pseudo-science, antisemitic conspiracy narratives, authoritarian leadership (Fuhrerprinzip), militarised nationalism and state-directed eugenics into a totalitarian political system. Central to the ideology was belief in a rigid racial hierarchy and the depiction of Jews as an existential enemy responsible for national decline. Other groups, including the LGBTIQ+ population and inter-racial couples were targeted for perceived sexual immorality. Violence was programmatic, functioning both as a mechanism of internal national purification and external expansion.
Following the defeat of Nazi Germany, neo-Nazism developed as a decentralised transnational movement seeking to revive or adapt core National Socialist principles. Contemporary neo-Nazi movements retain key elements of the original doctrine, including white racial supremacy, antisemitic conspiracy belief, demographic anxiety and hostility toward liberal democratic governance. In modern contexts, mobilisation frequently occurs through online subcultures and coated symbolism. For example “88” represents the eighth letter of the alphabet repeated twice (“HH” or “Heil Hitler”), and Sonnenrad (“Black Sun”), originally used by the SS, functions as a contemporary extremist identifier. These symbols operate as markers of ideological continuity with historical National Socialism.
National Socialist Network
The National Socialist Network’s (NSN) ideological foundations are articulated in its 2020 Activism Manual, which sets out an explicit commitment to the creation of a “National Socialist Australia”. The manual assigns activists responsibility for disseminating doctrine, staging public demonstrations and recruiting adherents, and affirms the aim of converting white Australians to National Socialism. It’s imagery and language draw directly from historical National Socialism and expressly reject alignment with broader nationalist formations in favour of ideological purity.
Public statements by NSN leaders… include open declarations of admiration for Adolf Hitler and denunciations of liberal democracy. These statements reflect affirmations of ideological continuity with classical National Socialism rather than symbolic provocation alone.
The group’s communications advance core elements of the historical doctrine: Aryan racial supremacy, conspiratorial antisemitism, rejection of parliamentary democracy and endorsement of authoritarian leadership structures consistent with Fuhrerprinzip. Leaders depict Jews as an existential threat and democracy as decadent or chaotic, while advocating strong, centralised authority. These themes are reinforced by rigid gender hierarchy centred on male dominance and racial reproduction, and by sustained use of Nazi-era symbols, including swastikas, runes and the Sonnenrad, as deliberate ideological signalling.”
In his report Dr Roose observed that National Socialism is historically inseparable from mass political violence and that, in the contemporary period, neo-Nazi and white supremacist ideologies have repeatedly inspired acts of terrorism. He said that the NSN represents the most active contemporary National Socialist organisation in Australia, combining digital propaganda, in-person recruitment and coordinated public actions. Further, beyond mere ideological advocacy, NSN members have engaged in conduct prosecuted as assault, intimidation and organised violence in furtherance of extremist beliefs.
After referring to a range of incidents involving prominent NSN members, Dr Roose concluded that, taken together, those incidents demonstrate that adherence to contemporary National Socialist ideology in Australia has been associated with repeated acts of intimidation, violence and coordinated public disorder.
The aspects of the supporting documentation to which I have referred above establish:
that the defendant has previously had a personal association with the NSN; and
that the NSN was a group of persons or organisation that was advocating support for violent extremism.
I am also satisfied that certain of the statements made by the defendant in messages sent to “Ted” advocated support for violent extremism. He refers to his “fellow whites” taking power and the potential need to build a “strong enough legion & take over with force”. He enthusiastically embraces “Ted’s” suggestion that the NSN was aiming to “harness” average Australians and turn them into “Hitler’s soldiers”; responding with phrases described by Dr Roose as markers of ideological continuity with historical National Socialism and all that it involved. He also refers to having posted “National Socialist & pro Hitler stuff” on Instagram.
By describing himself as a proud national socialist and expressing a willingness to be prosecuted for those beliefs, the defendant may be taken to have pledged loyalty to an ideology that supports violent extremism in the sense contemplated by s 10(1A)(a)(i) of the THRO Act.
In both the photograph sent to “Ted” via the messaging application and on the clothes worn by the defendant to the NSN meeting at a public gym, he displayed symbols said by Dr Roose to be associated with an ideology – historical National Socialism – that supports violent extremism in the sense contemplated by s 10(1A)(a)(ii) of the THRO Act.
For the purposes of this preliminary hearing, the defendant accepted that the State’s supporting documentation is capable of satisfying the Court that he is a “convicted NSW terrorism activity offender”. For the reasons given above, I agree that the supporting documentation establishes that the defendant is a “convicted NSW terrorism activity offender” by operation of both s 10(1)(c)(i) and (ii) of the THRO Act.
I note that, in addition to the matters addressed above, the State relied on a substantial body of material found on the defendant’s computer and extensive handwritten notes located during searches of his cell as evidence of the defendant having made statements advocating support for violent extremism. This material might loosely be described as a manifesto prepared by the defendant in which he outlines his vision for Australia.
In this material, the defendant expressed a deep hatred of many groups and individuals; including Jewish people, Muslim people, First Nations Australians, certain named politicians and members of the LGBTQI+ community. He also advocated for the complete subjugation of women. These views have been aptly described by Dr Roose as being consistent with a structured National Socialist worldview characterised by, inter alia, eliminationism. The material is littered with ideological concepts, symbols and affiliations which Dr Roose describes as “historically and contemporaneously associated with terrorism and violent extremism.”
The views expressed by the defendant in this material are highly supportive of violent extremism. However, there is nothing in the supporting documentation which suggests that the defendant shared this material with any other person.
While the views I have reached above in relation to the messages sent by the defendant to “Ted” mean that it is unnecessary for me to finally resolve this issue at this preliminary stage, I think it is doubtful that thoughts about violent extremism which are reduced to writing but never actually communicated to any other person can, on the proper construction of s 10(1)(c)(i) of the THRO Act, be characterised as a “statement … advocating support for … violent extremism”.
For the purposes of the preliminary hearing, the defendant accepted that there is evidence on the supporting documentation which, if proved, is capable of satisfying the Court that the matters alleged therein would justify the making of an ESO. By this, I understood the defendant to have accepted that the supporting documentation – taken at its highest – establishes, to a high degree of probability, that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. For the reasons which follow, I have independently arrived at the same view.
In Naaman (No 2), the Court of Appeal (at [29]) said the following in relation to s 20(d) of the THRO Act:
“Paragraph (d) is a complicated provision, and in light of the State’s submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately.
(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 offender 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 offender 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 offender 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 offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.”
For the purposes of this Part, the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.
“The concept of a terrorist act for the purposes of these proceedings is not some vague, inchoate and ill-defined idea operating at large.”
The term “serious terrorism offence” is defined by s 4 of the THRO Act as an offence against Pt 5.3 of the Criminal Code (Cth) for which the maximum penalty is seven or more years of imprisonment.
Part 5.3 of the Code contains a range of terrorism offences, most of which attract a maximum penalty of more than seven years imprisonment. These offences relevantly include:
engaging in a terrorist act: s 101(1) of the Code;
possessing things connected with terrorist acts: s 101.4(1) and (2) of the Code;
doing acts in preparation for, or planning, a terrorist act: s 101.6(1) of the Code;
intentionally being a member of a terrorist organisation, knowing it to be such an organisation: s 102.3(1) of the Code; and
intentionally providing to a terrorist organisation support or resources that would help it engage in preparing, planning, assisting in or fostering the doing of a terrorist act: s 102.7(1) and (2) of the Code.
As was noted in State of NSW v Elmir (Final) [2019] NSWSC 1867 at [153], the range of offences captured by the term “serious terrorism offence” is wide and many do not actually require the commission of an act of violence.
Section 100.1(1) of the Code defines a “terrorist act” as:
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.
(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.
A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
It is now settled that s 100.1(2) and (3) of the Code must be construed as capturing both actual and threatened “actions”: Naaman (No 2) at [34]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44].
Section 25 of the THRO Act sets out mandatory considerations that the Court must have regard to, in addition to any other matters it considers relevant, when determining whether to make an ESO. The section makes clear that the safety of the public must be the paramount consideration: s 25(2) of the THRO Act.
In considering whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order, I have had regard to each of the matters identified in s 25(3) of the THRO Act.
As this matter is at the preliminary hearing stage, no one has yet been appointed to conduct an examination of the offender. Although invited to participate in an interview with the author of what was then the proposed risk assessment report, the defendant did not take up this invitation.
A risk assessment report was subsequently prepared by Ms Katrina Czerkies, a forensic psychologist. In that report, Ms Czerkies agreed with a provisional diagnosis of Autism Spectrum Disorder, with underlying personality pathology (antisocial and narcissistic traits), which had previously been proffered by some – but not all – of the defendant’s treating clinicians.
Ms Czerkies reviewed much of the supporting documentation and applied several clinical and offence specific assessment tools to the information contained within it. In summarising the conclusions reached, she said:
“[The defendant] presents as an individual who experienced a difficult and complex childhood and adolesce. Multiple adverse childhood experiences… were observed (e.g. parental separation, parental disconnection and poor attachment, victimisation). Efforts were made to support him and the challenges and difficulties he experienced; however, this appears to have been to no avail. [The defendant] struggled throughout his education and was unable to successfully transition into the workforce. He has had limited pro-social peer or romantic relationships; a history of excessive alcohol and illicit substance use from a young age and appears to have experienced multiple episodes of complex mental health difficulties.
…
[The defendant] has been assessed as being a Level III risk (or middle band of 5 risk categories) for violent offending, meriting moderate intensity treatment services and a Level IVa (or above average) risk of sexual recidivism. He is in the precontemplation stage of change. [The defendant] has also been assessed as being a high risk of violent extremism (including terrorism), requiring continuous monitoring and risk management.” (Emphasis in original).
Ms Czerkies said that it is currently likely the defendant will continue to demonstrate cognitive and behavioural radicalisation that may be perceived as him either attempting to become a member of a terrorist organisation or form his own group and doing acts in preparation for, or planning, a terrorist act.
I have addressed above the views expressed by Dr Roose in his report. He describes the defendant’s views as both consistent and durable. Having reviewed the documents prepared by the defendant, Dr Roose has drawn attention to the frequent references to elimination and the defendant’s express endorsement of violence. Both are consistent with the characteristics of those who adhere to National Socialism, which are addressed in aspects of his report to which I have referred above.
I note that a NSW Police ESO Management Report prepared by the High Risk Terrorist Offenders Unit and Reintegration Management Report prepared by Corrective Services NSW each endorse the imposition of an ESO incorporating conditions to the effect of those proposed by the State. In the case of the former, the High Risk Terrorist Offenders Unit concludes that, should the Court find that the defendant poses an unacceptable risk of committing a serious terrorism offence, the only way to mitigate the risk appropriately and ensure the safety and protection of the community is through the imposition of such an order.
The defendant has some criminal history in addition to that arising out of the index offence. To the extent it is presently relevant, it includes some violent offending and earlier offences involving possession of knives. The supporting documentation records that, whilst in custody, the defendant has reported a history of fighting in the community and displayed a sense of pride in that fact. Whilst the defendant does have some history of committing offences whilst on bail, he has generally been compliant with obligations imposed upon him in the custodial setting.
In sentencing the defendant for the index offence, the learned Magistrate made express reference to the defendant’s mental health issues and the need for him to rehabilitate himself and show insight into his offending.
Whilst there is no consistency in the various clinical opinions expressed regarding the defendant’s psychiatric presentation, Ms Czerkies considers the defendant’s provisional diagnoses of Autism Spectrum Disorder and Personality Disorder to bear significantly on his risk of engaging in violent extremism (including terrorism) and describes his mental health as both a vulnerability for his continued cognitive and behavioural radicalisation as well as a prominent risk factor of his offending pathways or offence trajectory.
In this respect, the supporting documentation suggests that the defendant has refused to undertake any voluntary treatment, support or intervention in relation to his mental health presentation. He declined contact with the Countering Violent Extremism service, and declined to discuss his offending with Community Corrections.
The documents found on the defendant’s computer and those confiscated from his cell are an important consideration when assessing the risk he would pose if not kept under an ESO of the type sought by the State. I have already referred, at a high level, to the content of these documents. The eliminationist views expressed by the defendant in those documents regarding a range of different groups is highly concerning. As was noted by Dr Roose, the defendant’s writings identify various groups as corrupt or demonic, frame them as existentialist threats, prescribe segregation or deportation, and escalate to execution.
The defendant has not only reduced his disturbing thoughts to writing but has also sought to act upon the ideology which they reflect by seeking to join the NSN.
The supporting documentation points to the defendant having displayed a fascination with knives and other weapons.
Finally, I note that on 3 December 2025 a mobile telephone belonging to the defendant was seized pursuant to a search warrant and digital access order. Videos depicting the following were discovered on subsequent examination of that device:
A compilation of Islamic State, Hezbollah and Hamas fighters committing atrocities.
The execution of two uniformed fighters by Islamic State fighters.
The execution of a woman by Boko Haram fighters.
These videos graphically depict acts of violent extremism. It is apparent from the supporting documentation that the defendant claims to have saved these videos to his phone so that he might use them to educate others about what he perceives to be the generalised moral threat posed by Islam.
Whatever reason the defendant may have had for downloading these videos, Dr Roose observed that they do not dilute the defendant’s core ideology but, rather, reinforce authoritarianism, purification narratives and the legitimisation of violence. He then said:
“Contemporary extremist actors frequently combine ideological strands while retaining a clear hierarchical core.”
“the material reflects a durable extremist ideological commitment. The presence of structured eliminationist doctrine, reinforced symbolically and programmatically, is consistent with an elevated risk profile when compared with individuals expressing diffuse or incoherent grievances without ideological consolidation.”
Drawing together all of the above, I am satisfied that – taken at its highest in the sense required on a preliminary application of this type – the supporting documentation establishes that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an order to the effect of that now sought by the State.
In the circumstances, I consider it appropriate to impose an ISO pending the determination of the State’s application for an ESO.
The defendant did not wish to be heard in relation to the ISO conditions which were proposed by the State. In determining what conditions to impose in connection with an ISO, the Court must balance the need to protect the public from an established and unacceptable risk against the impact that the intrusive nature of any condition of supervision will have on the individual who is subject to those conditions.
Having performed that balancing exercise in the present case, I consider the conditions proposed by the State to be necessary and appropriate as an interim measure, pending the final hearing of its application for an ESO.
Both the State and the defendant contended that it would be appropriate for an order to be made restricting access to the Court’s file in the proceedings such that access will be permitted to a non-party to the proceedings only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
Having regard to the nature and subject matter of the proceedings, I agree that such an order should be made.
For the reasons given above, I make the following orders:
An order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”):
(a) appointing a qualified psychiatrist and registered psychologist to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the defendant to attend those examinations.
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Schedule A - Conditions of Supervision (326 KB, pdf)
State of New South Wales
Wheatley (Preliminary)