In December 2018 Adams J made final orders for Mr White's extended supervision under the Terrorism (High Risk Offenders) Act 2017 (NSW), having concluded that "unless the defendant is supervised, he poses an unacceptable risk of committing a serious terrorism offence, namely, an offence consistent with his previously held white supremacist views": State of New South Wales v White (Final) [2018] NSWSC 1943 at [163]. There, her Honour also concluded:
"162 The defendant has clearly had a most unfortunate childhood of a highly dysfunctional nature. It is his search for belonging that led him to become associated with these white supremacist groups in the first place. The expert evidence before me is that, without supervision, the defendant could again become associated with such groups within which (especially if alcohol is involved) his risk levels significantly increase.
163 I have had regard to all of the material put before me on this application and I am satisfied that unless the defendant is supervised, he poses an unacceptable risk of committing a serious terrorism offence, namely, an offence consistent with his previously held white supremacist views. To some extent, it is not necessary for me to make any finding as to whether he currently holds those views because the fact remains that he previously firmly held them for some time and, as the Court appointed experts have opined, if certain risk factors were present he could easily re-associate himself with those persons and adhere to those beliefs once again.
164 On that basis, I am satisfied it is appropriate to make an ESO in this matter for a period of two years. This course was not objected to by the defendant."
Those conclusions were reached against a history of offending which included phone calls Mr White made to the Sydney Jewish Museum in 2014 involving anti-Semitic threats of extreme violence and sexual assault, and the arson of a church in Taree in 2016.
The conditions of supervision Adams J imposed included electronic monitoring for a period not exceeding 6 months, in circumstances where such monitoring had been part of the conditions of the interim supervision order I had imposed on Mr White in 2018: State of New South Wales v White (No 1) [2018] NSWSC 1064.
At the time Adams J made her orders, Mr White was in custody again for the breach of some of those conditions, and likely to remain there until at least January 2019: at [197]. But no provision was made for electronic monitoring to be reintroduced after it ceased if Mr White again breached his conditions of supervision.
The State now seeks a variation of the electronic monitoring condition under s31 of the Act, that being a condition permitted by s29(1)(h), following Mr White's breaches of other conditions which Adams J imposed. That application is opposed. The condition sought provides:
"4 The defendant must wear electronic monitoring equipment as directed from time to time by his EO and must not tamper with such equipment, or remove it, without the EO's prior approval."
The motion was supported by affidavits sworn by Mr Bagley, a Terrorism High Risk Offender Applications and Operational Governance Officer within the Terrorism High Risk Offender Unit; affidavits sworn by Ms Southwood, the State's solicitor; a supplementary risk report provided by Ms Sweller, the psychologist who interviewed Mr White in custody in June 2020; and an expert's report from Dr Droogan, a Senior Lecturer with the Department of Security Studies and Criminology of Macquarie University.
Mr White relied on a report of Dr Ellis, a psychiatrist who has been treating him since Adams J made her orders, apart from periods when he has been in custody.
During the hearing it emerged that there had been a change in the system of "service delivery standards for supervised offenders" described in the Risk Management Report which the State relied on before Adams J and which was in evidence on this application. There, explained under the heading "THR offenders monitoring stages", were the four stages of monitoring applicable where electronic monitoring and activity scheduling applied as part of the conditions imposed by the Court. These stages included electronic monitoring for stages 1, 2 and 3 and none at stage 4. This system of monitoring was explained to operate as follows:
"In general, THR offenders commence on THR monitoring Stage 1 and remain on that stage until a decrease in monitoring intensity is considered appropriate. The appropriateness of an offenders' monitoring stage is reviewed every two months when their case plan is reviewed, but may be increased at any time if deemed necessary to manage risk."
Contrary to this evidence, Mr Bagley's affidavit evidence was that now:
"29 In respect of terrorism offenders. EM equipment is only ever temporarily removed for medical assessment or treatment if required. Such decisions are at the discretion of an offender's enforcement officer".
When I asked for clarification, Mr Bagley was recalled and it emerged that the monitoring system described in the Risk Management Report had ceased not long after Adams J made her orders. The result was that now, if an electronic monitoring condition was re-imposed by the Court, it would not be reviewed during the life of the order.
The reason for that change in the system is not apparent. Nor does it seem to be consistent with the approach adopted in the authorities discussed below.
I asked the parties to confer about the terms of an electronic monitoring condition which could provide for ongoing review, and if it was brought to an end, reimposition if circumstances relevantly changed. For example, as the result of breaches of other conditions of supervision.
The parties were unable to agree and advised that the State's primary submission remained that the condition sought in the motion should be imposed. But two reformulations were proposed in the alternative:
"1. The defendant must wear electronic monitoring equipment as directed by his EO and must not tamper with or remove such equipment. The wearing of electronic monitoring is to be subject to review by the defendant's EO after a period of no longer than 6 months.
2. The defendant must wear electronic monitoring equipment as directed by his EO and must not tamper with or remove such equipment. The wearing of electronic monitoring equipment is to be subject to ongoing review by the defendant's EO at intervals of no longer than three months and, if no longer required, may be reintroduced by the EO if it is deemed necessary to address the defendant's risk of committing a serious terrorism offence, or in the event of a breach of one of the conditions of this Order."
The reformulation proposed by Mr White was:
"a. The Defendant must wear electronic monitoring equipment as directed by the EO or any other person supervising him.
b. If the Defendant is not charged with any offence of breaching the ESO, or with any other criminal offence, for a period of 6 continuous months from the date of the commencement of the ESO, the Defendant will no longer be required to wear the electronic monitoring equipment and condition 4(a) will cease to apply, unless beforehand those supervising the Defendant have determined that he should no longer be required to wear electronic monitoring equipment.
c. If electronic monitoring equipment is removed because of condition 2 and the defendant is then charged with any offence of breaching his ESO, or with any other criminal offence, the EO or any other person supervising the defendant may reapply condition 4(a)."
[3]
Conclusion
For reasons which follow I am satisfied that the electronic monitoring condition should be varied to provide:
"4 The defendant must wear electronic monitoring equipment as directed from time to time by his EO and must not tamper with such equipment, or remove it without the EO's prior approval, with the need to continue wearing the equipment being reviewed by the EO:
a. at least once every 3 months; or
b. if the requirement to wear the monitoring equipment has been suspended, upon the EO becoming aware that the defendant may have breached another condition of his supervision or if the EO considers it is again necessary to address the defendant's risk of committing a serious terrorism offence, in which event the defendant will be provided with a short written statement as to the basis upon which that conclusion has been arrived at."
[4]
The circumstances in which the State's application was made
There is no issue that Mr White did comply with the electronic monitoring condition which applied to him between 6 April and 4 October 2019, when the condition ceased, albeit with certain compliance issues over that time.
There is also no issue that Mr White had sought and been refused approval to vary his schedule of movements in order to travel on 25 October 2019 to a barbecue with a friend by private car, rather than by public transport, as had earlier been approved. That day he was observed arriving at the barbecue in a private vehicle carrying a case of alcohol. When later breath tested, Mr White returned a reading of 0.172 grams of alcohol per 210 litres of breath, with the result that he was arrested and charged.
Mr White later pleaded guilty to two charges of contravening a direction not to travel by private car and of contravening the prohibition on possession and consumption of alcohol. On 10 March 2020, he was sentenced to 13 months imprisonment from 25 October 2019, with a non-parole period of 8 months expiring on 24 June 2020. The sentence expires on 24 November 2020.
This application followed Mr White's conviction of those breaches of the conditions of his supervision.
Between June 2020 and 9 July 2020, Mr White was in the community without any condition relating to electronic monitoring. On 9 July he was arrested and charged with a breach of the condition not to significantly change his appearance without prior notification, following a message sent to a Corrections Officer on 8 July that he had shaved off his beard.
Mr White presently remains in custody and has a severity appeal due to be heard in the District Court on 6 November.
Currently Mr White's extended supervision order still has some 17 months remaining.
[5]
The parties' cases
The State's case was that there had been a relevant material change in Mr White's circumstances since the final orders were made, which permitted the variation sought: New South Wales v Mills [2019] NSWSC 298 at [30].
It accepted that the conditions imposed after Mr White's breaches of his conditions should still be "the least intrusive conditions available to ensure that the risk posed to the community by the defendant is adequately managed, such that the community is properly protected": State of New South Wales v Graham James Kay [2018] NSWSC 1235 at [68] and see Lynn v State of New South Wales [2016] NSWCA 57 at [120].
The State contended that the evidence established that alcohol use increased the risk of Mr White's further offending and that his extremist thinking continues. It was relevant that his October 2019 breaches of the alcohol use and travel conditions of his supervision had occurred so soon after electronic monitoring had ceased, as was Mr White telling a Community Corrections Officer (CCO) earlier that day that he had perceived a reduced police presence since the electronic monitoring had ceased.
The evidence established that Mr White may also benefit from increased structure and monitoring. While reimposition of electronic monitoring was intrusive, it was an integral part of the least intrusive conditions required to address the risk that he continued to pose of the commission of a serious terrorism offence
While it was accepted that the travel breach did not speak to an increased risk of a terrorism offence, it was submitted that his alcohol consumption did. That had to be considered together with concerning images found in Mr White's cell in March 2020 and his identification with another form of extremism, anarchism, which was also relevant to his assessed vulnerabilities and risks, and their continuation.
The defence case was that the application should be dismissed; the order sought not being directed to Mr White's risk of committing a serious terrorism offence, or offending of the type which formed the basis of the orders made by Adams J. Nor did the proposed condition encourage Mr White's rehabilitation. The current conditions readily achieved the objects of the Act, the safety and protection of the community and Mr White's rehabilitation.
It was accepted that there was an interplay between the conditions imposed, but submitted that the Court would hesitate to conclude that electronic monitoring was necessary. Had it been in place in October 2019, it would not have regulated Mr White's alcohol consumption or the detection of those with whom he associated, although it was accepted that it might have detected his deviation from the route taken. But that deviation was detected in any event, leading to his arrest.
It was also argued that while the evidence established some ambiguity in Mr White's thinking, it did not establish the lack of progress for which the State contended. Further, account should be taken of his right to personal liberty discussed in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[3].
It should be noted, however, that there McCallum J also concluded at [56] that "Whether an extended supervision order will provide adequate supervision is an evaluative judgement to be undertaken by the Court according to the circumstances of the individual case and having regard to the objects stated in s3 of the Act, giving primacy to the object stated in s3(1)."
[6]
The statutory requirements
Section 3 provides:
"(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."
The Court's discretion to make an order under s30 is not unfettered. Section 25(2) requires that in determining an application for an extended supervision order, "the safety of the community must be the paramount consideration of the Supreme Court". The other matters which must be taken into account are those specified in s29(3).
They include the likelihood that the offender will comply with the obligations of an extended supervision order; the level of the offender's compliance with the obligations of any earlier supervision order; any beliefs or commitments that support engaging or participating in terrorism activities; and any other information that is available as to the likelihood that the offender will commit a serious terrorism offence: s29(3)(h), (j) (l) and (m).
It is also relevant that s29 provides that unless the Court orders differently, an extended supervision order must include conditions requiring the offender to wear electronic monitoring equipment as directed, and not tamper with, or remove the equipment: s29(1A)(b).
While not specified in s31, it is inherent in the statutory scheme that such considerations will also have to be taken into account on consideration of any application for variation of a current supervision order.
So too will the objects of the Act: State of New South Wales v Wilde [2015] NSWCA 28 at [53]-[54] and State of New South Wales v Graham James Kay [2018] NSWSC 1235 at [66].
Any conditions imposed must be appropriate, as s29 requires, having regard to the nature and scope of the risk posed by the offender: Baldwin v State of New South Wales [2020] NSWCA 112 at [51]-[52].
The conditions must also be directed to the mitigation of the risk which the offender poses: State of New South Wales v Burns [2014] NSWSC 1014 at [59]. They cannot be unjustifiably onerous or simply punitive: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37]. They may also not be imposed simply because they are a convenient or a resource efficient means of supervision, but must be capable of reducing or minimising the risk of other offending: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].
[7]
Why the condition should be imposed
I am satisfied that the evidence establishes that, consistently with the Court's obligation to give paramount consideration to the safety and protection of the community, the electronic monitoring condition should be varied, but with the possibility of it being relaxed over time.
The reimposition of such monitoring until it is considered no longer necessary, because of the progress Mr White makes, is undoubtedly capable of reducing or minimising his risk of further serious terrorism offending. That is part of the reason why both Adams J and I imposed such a condition.
Adams J placed a time limit on electronic monitoring in circumstances where Mr White had complied with the conditions earlier imposed upon him. But soon after that condition ceased to apply, Mr White breached the alcohol and travel conditions imposed upon him. That followed a number of requests from him for permission to consume alcohol, which were refused.
Adams J's judgment reveals that the condition concerning alcohol abstinence was an important measure in Mr White's case, given the conclusions her Honour reached that he could again become associated with white supremacist groups, especially if alcohol was involved, in which event his risk levels significantly increased.
On the evidence I am not satisfied that any different conclusion is now open given that there have been some other concerning developments which establish that Mr White continues to pose a considerable risk which the conditions of his supervision must manage, both in the interests of the community and his own.
In summary, the evidence establishes that:
Mr White continues to pose an unacceptable risk of committing a serious terrorism offence;
despite his denials, he may continue to hold white supremacist and other extremist views;
the risk he poses is exacerbated by his consumption of alcohol;
in October 2019 he breached the alcohol abstinence condition soon after the electronic monitoring condition ceased, at a time when he perceived that he was subject to reduced police surveillance; and
resumption of electronic monitoring is likely to encourage Mr White's compliance with his other conditions of supervision, including alcohol abstinence, which is important to the protection of the community and his own rehabilitation.
These conclusions rest on the evidence of Mr White's behaviour and the opinions and reports of Ms Sweller, Dr Droogan and Dr Ellis.
In his report Dr Droogan explains the significance of Mr White's continuing use of badges, tattoos and drawings of images connected with far right extremist culture, including:
laurel wreaths and rings which have a history of use as insignia by white supremacist skinhead groups;
a rose tattooed over a tattoo of the number 14, which has a connection with far right extremist culture and Odinism;
a drawing of a helmeted and braided figure with runes on the shoulder, associated with white and far right extremist groups and Nazism;
symbols associated with anarchy, adopted by the punk movement; and
Fred Perry clothing bearing the laurel leaf symbol associated with an extreme hate group with ties to known far right extremists.
In her report Ms Sweller acknowledged Mr White's repeated statements about having changed his beliefs and behaviour, but she considered that he had limited insight into the role his alcohol consumption had played in his offending and his risk of further offending. On his account, Mr White's decision to drink alcohol in 2019 was connected with not wanting to lose friends. Without telling his CCO of the changed circumstance of the party he had been given permission to attend, he also decided "to take a risk" by attending in breach of the approved mode of travel, because he did not want to be told to leave.
Other evidence establishes that while there he became intoxicated to the point of still being visibly affected, when he was later breath tested.
Ms Sweller considered that this reflected that with the removal of electronic monitoring, Mr White's compliance with his conditions had decreased, reflecting his poor insight into his risk indicators and vulnerability. His behaviour indicated poor motivation to work towards goals and poor management of his risks. He had also acknowledged being purposively deceitful in order to present himself in a positive light with those supervising him and stating that "people see me like I want to be seen".
Mr White reported maintaining distance from unhelpful influences in custody and had no charges for misconduct or other negative reports. Still, his risk for violent extremism was assessed to be moderate in May 2020.
Ms Sweller noted that Mr White also claimed to have denounced white supremacist ideology and to currently identify with the SHARPIE movement, being skinheads against racial prejudice anarchist punk. That ideological shift was instigated, he said, by friends who identify as anarchists, who introduced him to the ideas of Che Guevara, the revolutionary guerrilla leader and military theorist, in whom he was interested. That was because the majority of punks were anarchists, which he thought was appropriate for him. He also agreed with the underlying ideology of having no government, no politics and a society that is not ruled by anyone.
Ms Sweller considered that Mr White's longstanding, unhelpful attitudes to authority had a direct impact on his compliance with his supervision, which had deteriorated. Mr White had expressed his frustrations with the intensity of that monitoring. She also considered that his hostility to those in authority may be reinforced by the conditions of his supervision, and that his sense of injustice may also be reinforced by his externalisation of responsibility for his behaviour and tendency to maintain a victim stance.
Mr White had acknowledged the drawings found during a cell search in March, which he had attempted to conceal in order to avoid being questioned or judged about what he had drawn. He was dismissive of attempts to develop his insight into the significance of these behaviours.
Ms Sweller concluded that Mr White remained susceptible to influence from his peers and had poor insight into its potential to lead him into high risk situations. Although he acknowledged that he was susceptible to direction and influence of others, his desire to be around his peers was a greater priority than complying with his order.
[8]
Orders
For these reasons, I order that condition 4 of Mr White's conditions of supervision be varied to provide:
"4 The defendant must wear electronic monitoring equipment as directed from time to time by his EO and must not tamper with such equipment, or remove it without the EO's prior approval, with the need to continue wearing the equipment being reviewed by the EO:
a. at least once every 3 months; or
b. if the requirement to wear the monitoring equipment has been suspended, upon the EO becoming aware that the defendant may have breached another condition of his supervision or if the EO considers it is again necessary to address the defendant's risk of committing a serious terrorism offence, in which event the defendant will be provided with a short written statement as to the basis upon which that conclusion has been arrived at."
[9]
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: 06 November 2020
Ms Sweller concluded that despite his assertions that his ideological beliefs were not problematic, his various behaviours were consistent with continuing to seek a sense of identity and purpose through a range of extreme ideologies. He might also be engaging in positive impression management in order to avoid judgment, and he continued to avoid discussion of issues that elicited discomfort, including in relation to his ideology. His susceptibility to influence and the ease with which he connects with those who share his beliefs made him vulnerable to seeking connection with those who hold extremist beliefs. His peer associations thus required ongoing monitoring.
Ms Sweller finally concluded that Mr White's current risk rating was moderate for violent extremism, politically motivated violence or terrorism activity. His reported changed ideological beliefs were inconsistent with his behaviour and his worldviews bore a resemblance to extremist worldviews, including the anarchist ideology. She concluded that greater monitoring could assist his external risk management; mitigating his risk of seeking a sense of belonging from individuals who could expose him to extremist ideology.
Alcohol use increased Mr Whites higher risk behaviour. He acknowledged that his desire for alcohol was fuelled by built up stress from his supervision. Ms Sweller considered that while he may have had an intellectual understanding of some risk factors, he lacked the skills or motivation to manage his vulnerabilities. With removal of electronic monitoring Mr White had to use greater internal management, but had limited ability or willingness to implement these strategies, thus requiring external management until he developed greater insight.
Mr White had engaged in deceptive and risk related behaviour. He felt that he has been purposefully treated unfairly and victimised by the system as a whole. Ms Sweller considered that this might also lead to an increased risk of engaging in problematic behaviour once released again.
Ms Sweller concluded that electronic monitoring could not prevent or detect high risk behaviours during Mr White's approved activities, but it would help to make him less likely to act impulsively, including in relation to alcohol consumption and associating with unhelpful peers. It could also increase his motivation to manage his behaviour.
Dr Ellis provided a report in September 2020, having seen Mr White as a patient from May 2018 after referral under the NSW Police Countering Violent Extremists program. Dr Ellis saw Mr White repeatedly while he was not in custody in 2018 and 2019 and spoke to him in 2020 by phone. In cross examination Dr Ellis confirmed that since his report he had been provided with additional information, including Dr Droogan's report.
Dr Ellis outlined Mr White's extensive psychiatric history since childhood; his history of tobacco dependence; heavy alcohol use from age 13 to his mid-twenties and history of drug abuse up until 4 years ago; his enrolment in the Magistrates Early Referral Into Treatment (MERIT) substance use diversion program and completion of an in custody addiction program; his criminal record; his dysfunctional upbringing and family life; his involvement in neo-Nazi groups; and his current claimed disavowal of white supremacy.
In cross examination, Dr Ellis agreed that a better indicator of a person's belief was their actions, rather than their self-reports, because it was possible that a person may not be candid. He agreed that Mr White had struggled with the views which he would hold and that it was possible that he still had a residual interest in extremist ideology. He said it would not be unusual for a person to revert to such ideology, as they grappled with their beliefs and for a visual person like Mr White to reflect that struggle in his drawings. Dr Ellis also said that the intent of his tattoos was to wear a pictorial representation of his then-professed ideological beliefs.
Dr Ellis explained that Mr White had limited formal education and an interest in politics and political philosophy and so an anarchy symbol might represent, destruction of society. However, from his discussions with Mr White about anarchy, those interests had been more in the political concept of anarchism, rather than terrorist associations. He agreed that Mr White was susceptible to influence from others, that being how he initially became involved in the right wing movement. Despite Mr Whites attraction to anarchism, Dr Ellis considered that he was coming to terms with how he would live in a multicultural democratic society that his previous lifestyle had rejected, given that he saw himself as an artistic person, rather than a destructive person.
But Dr Ellis agreed that Mr White's statement that he agrees with the underlying ideology of having no government and no politics and that he believes society should not be ruled by anyone, was inconsistent with claimed respect for democracy. On its face, such beliefs were consistent with an extreme anarchist view that there should be no government and that everybody should govern themselves, which is different from a democratic government. However, Dr Ellis would still want to know whether Mr White believed that violence should be used to achieve this goal or whether that should be achieved in some other way. Dr Ellis questioned whether it was more a philosophical standpoint, in the sense that Mr White believed that these ideologies would be perhaps a better way to run society, but that he was not necessarily going to do anything about it.
Dr Ellis also said that it was changes in behaviour which were most reliably reflective of changes in attitude. While it was possible that Mr White had engaged in impression management, Dr Ellis considered those efforts not to have been at a sophisticated or consistent level. Mr White also did not appear to have been living his life according to a particular ideology, but Dr Ellis agreed that the conditions of his supervision may have been having a deterrent effect.
Dr Ellis considered that Mr White met the criteria for personality disorder, post-traumatic stress disorder (PTSD), substance use disorder and obsessive-compulsive disorder. In cross examination Dr Ellis explained that he had been engaged in treating Mr White but not providing any deradicalisation therapy. Mr White's PTSD and personality issues were the primary areas Dr Ellis considered would be of benefit for him to focus on in his sessions, in order to treat his psychiatric conditions. His role was not to risk assess him or to be involved in interviews to establish the truth or otherwise of behaviours, but to look at improving Mr Whites mental function.
In his report Dr Ellis also observed that Mr White has a self-reported history of problems with violence which began in childhood and persisted into adult life, consistent with his criminal record. That had been accompanied by persistent antisocial behaviour and problems in relationships, a lack of significant stable intimate relationships and an involvement in violent crime committed in company with antisocial peers. He also had a poor record of employment and engagement in substance abuse associated with his pattern of violence; as well as likely persistent attitudes supportive of violence across his lifespan, evidenced by weapon carrying and threatening violence.
Dr Ellis considered that Mr White currently had improved insight into his propensity for violence and need for treatment and management. He had indicated an intention to accept treatment and had no currently expressed attitudes supportive of violence, and less serious current instability of mental state. In cross examination, Dr Ellis agreed that there was a possibility that the person being treated was not necessarily being as candid with him as he might expect or hope. He said that was for others to investigate, but he was aware that before his treatment began, at a time when Mr White had already disavowed substantial adherence to extremist views, there had been as recently as February 2018 some troubling revisiting on social media of some aspects of this ideology.
Dr Ellis said that Mr White had expressed some internal struggle about deciding what views he would hold and that his views were now less clear than they were earlier on.
In his report Dr Ellis also noted that Mr White did have a longstanding distrust of authority, variable adjustment to supervision and a high need for professional services and plans to contain his potential for violence. His history of carrying weapons gave rise to the chance that the violence he engaged in could escalate to a serious level, where physical injury is foreseeable.
Dr Ellis discussed the limitations of risk assessment techniques, but used the HCR-20 V3 judgment tool which aids in the identification of fluctuating risk factors, which moderate overall risk. He concluded Mr White fell into a group of persons with a moderate-high risk for violent offending, with treatment and supervision likely to reduce his risk.
Dr Ellis considered, however, that on Mr White's reported attitudes and behaviours, he did not currently share most of the characteristics associated with terrorist-related violence and that his risk factors related primarily to his past behaviours, when he was a part of right wing gang organisations. In cross examination Dr Ellis agreed that the training Mr White had had in military style combat and weapons training was relevant to his risk.
Dr Ellis said in his report that Mr White's personality and trauma symptoms likely predisposed him to identifying with violence and radical groups and ideas. Further treatment of his psychiatric conditions thus may decrease his propensity to extremist criminal behaviour.
In cross examination Dr Ellis deferred to the opinions expressed by Dr Droogan, but agreed that Mr White's use of the symbols that he dealt with in his report, were consistent with at least a residual interest in extremist groups. He said that in his opinion Mr White has had difficulty forming a stable sense of self-identity and that given his past; he wouldn't find it unusual that Mr White might from time to time revert to at the very least musing about those images and what they meant to him. In times of stress he might revert to previous ways of thinking.
Dr Ellis considered that electronic monitoring may reduce supervision infractions and increase participation in rehabilitation activities, which reduced recidivism risk. Stabilisation of Mr White's routine through regular employment or study would also reduce the need for monitoring. In cross examination he agreed this would be relevant not just to deterrence, but also to Mr White's rehabilitation.
In cross examination Dr Ellis also said that when people have unstable schedules, without a fixed routine in their life, that the scheduling condition can be particularly important and that monitoring can help ensure that that is occurring. Once a person has sustained stable employment and a sustained leisure and recreation routine, everyone becomes much sure as to where they are and the need for electronically monitoring can fade away.
On all of this evidence, I am satisfied that in Mr White's case, the least intrusive conditions which will adequately manage the risks which he clearly continues to pose, so that the community will be properly protected, is to order the variation of the electronic monitoring condition on the basis that it will be subject to ongoing review.
That conclusion has been driven by Mr White's initial adherence, albeit with some lapses, with the conditions of his supervision; his increasing desire to recommence consuming alcohol, which exacerbates the risks which he poses; and the changes in his behaviour, which resulted in his deliberate decision to risk the consequences of the breaches of his alcohol and travel conditions so soon after the cessation of electronic monitoring, at a time when he believed that police oversight of his activities had also reduced.
The conditions of his supervision formed a matrix of conditions designed to manage his risk and support his rehabilitation. The absence of a possibility that electronic monitoring could be reimposed if he was in breach of his other conditions, seems to have encouraged him to take the risk of breaching the important condition that he abstain from alcohol consumption.
On all of the evidence I have discussed, I am not satisfied that the electronic monitoring condition should be reimposed on the basis that there will be no ongoing review of the need for electronic monitoring, as the system in place at the time that Adams J and I made our earlier orders provided for. The possible relaxation or reimposition of that condition, as his situation changes, I consider to be an important part of a system of supervision which will encourage Mr White's adherence to the conditions imposed upon him, not only for the immediate safety and protection of the community, but in the long term, by encouraging his pursuit of rehabilitation.
I also consider it important for the positive aspects of the system of supervision to be made apparent to Mr White, by requiring the EO to give him a short written statement of the basis of the conclusion reached, if the condition is reimposed, after it is suspended. That will help Mr White understand how he needs to change his behaviour, if the electronic monitoring he desires to have removed, is to be again achieved.
The condition will thus be reimposed, but will be subject to regular review. If suspended by an EO, it may be reimposed if the EO concludes that to be necessary on becoming aware that Mr White may have further breached the other conditions of his supervision, or to address the defendant's risk of committing a serious terrorism offence. An EO may consider that to be necessary in the event, for example, of a further breach of the alcohol abstinence condition or identified involvement with an extremist group, but not necessary for some explained departure from his program of scheduled movements, as has occurred from time to time in the past.
It is simply neither practical, nor in the interests of the safety of the community or Mr White's rehabilitation for all of this to be left to be dealt with by judgment given by the Court after application for orders varying the conditions of Mr White's supervision.
Given the time and cost necessarily involved in applications to the Court and the disadvantage to Mr White's pursuit of the rehabilitation which he clearly needs in the meantime, which may result, I consider it to be preferable to have timely decisions made about the ongoing need for electronic monitoring by the EO's who have the ongoing responsibility for Mr White's supervision as was the case under the previous system of supervision.
There is every reason to think that such supervision is not only rational, but provided consistently with the objects of the statutory scheme.
Thus Mr White being promptly told as to what he did, which resulted in a decision upon review to reimpose such monitoring being made, can only encourage his understanding of the consequences of his actions and compliance with his other conditions of supervision, for the potential long term benefit of the community and his own rehabilitation.