By an amended summons filed on 4 May 2018 the State of New South Wales has sought orders against Ahmed Elomar ("the defendant") pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act"), including an order pursuant to ss 20 and 25 of the Act that the defendant be subject to an extended supervision order for a period of three years. The proceedings have previously been before Rothman J who has made a number of preliminary orders.
Last week, the representatives of the parties appeared before me and indicated that agreement had been reached as to orders which they considered appropriate. As I pointed out at the time, the making of orders under the Act necessarily requires the Court to have specific regard to a number of factors. I expressed the view that in those circumstances, it would not be appropriate for the Court to simply make the orders that the parties themselves had regarded as appropriate without considering the evidence. Both counsel acknowledged that it would be necessary for me to give consideration to the relevant provisions of the Act, and the evidence, before making any orders in the matter, and that this was so irrespective of whether any orders had been agreed upon.
I was subsequently provided with two large folders of material containing the evidence upon which the parties relied in support of the making of the orders sought. I do not propose to detail the entirety of that material. However, it is relevant to note that it contained, amongst other things, reports of a number of Court appointed experts, as well as associated risk management reports relating to the defendant.
The background to the matter is helpfully set out in the judgment of Rothman J in State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 commencing at [15]. The following summary is taken from his Honour's judgment.
The defendant is 34 years of age. He is a former professional boxer. He has a criminal history involving offences of violence and at the time of the present application he was serving a sentence of imprisonment for the reckless wounding of a police officer acting in the execution of his duty during a public disorder, contrary to s 60(3A) of the Crimes Act 1900 (NSW) ("the index offence"). There are a number of other matters within the defendant's history upon which the plaintiff relies, and to which I should refer.
The first of those matters concerns the involvement of the defendant in a violent incident in Bankstown in June 2012 in which he and a number of other men who were associated with an Islamic book store confronted and attacked various individuals associated with the conduct of a neighbouring business. That incident occurred in circumstances where the owner of the book store had been accusing individuals associated with that other business of being supporters of the President of Syria, and had demanded that the owner of that business donate money, through the book store, to prove that he was not such a supporter. The owner refused to do so. At about 5pm on 28 June 2012 an unknown male was observed by the owner of the other business to walk out of the book store brandishing a firearm which he pointed in the direction of the owner, motioning a firing action three times. At about 8pm on the same day a group which included the defendant exited the book store and walked towards the other business. As persons inside the business premises started to walk out, those who had come from the book store started to throw punches at them. The defendant kicked and punched a man as he lay on the ground. He then approached the owner of the business, grabbed him by the throat, and threatened to burn down his shop. An unknown male in the defendant's company was observed to have a black pistol tucked into his pants and said at the time of the attack:
We are going to slaughter your necks, all of you, one at a time.
Following that incident the defendant pleaded guilty to offences of affray and common assault and was sentenced to 12 months' imprisonment, with a non‑parole period of 8 months.
On 11 July 2014 the defendant was convicted of two counts of common assault which had occurred approximately two years earlier when, along with his brother and another person, Khaled Sharrouf, he was involved in a violent incident directed at members of a particular family to whom the defendant had previously issued threats. During the incident the defendant punched and struck members of the family (one of whom had cerebral palsy) to the head and body. On conviction he was sentenced to 7 months imprisonment.
The index offence arose from an unlawful assembly held in the Sydney CBD in 2012 for the purposes of protesting against a video of the Prophet Muhammad which was said to be insulting to both the Prophet, and to followers of the Muslim faith. During the course of the assembly, the defendant struck a police officer in the head with a wooden pole. In sentencing the defendant, Woodburne DCJ described the defendant's attack as unprovoked, and concluded that there had been no provocative conduct on the part of the police. Her Honour specifically concluded that the use of capsicum spray by the police was not provocative, partly because the offender had exhibited aggression prior to the spray being deployed. Her Honour also found that the defendant was not "casually caught up in the violence" but was at the forefront of what had occurred, and that he had acted deliberately. Her Honour sentenced the defendant to 4 years and 8 months imprisonment, with a non‑parole period of 2 years and 6 months.
Although the defendant was released on parole in respect of that matter, his parole was later revoked because of an alleged breach of the condition that he be of good behaviour. That breach was said to have occurred on 3 May 2017, when the offender was alleged to have committed an offence of intimidation. Following a hearing, he was convicted and sentenced in the Local Court to imprisonment for 10 months, to be served wholly concurrently with the sentence imposed in respect of the index offence. A subsequent appeal to the District Court against his conviction was successful, and the charge was dismissed.
Against this background, I turn to consider the relevant provisions of the Act.
Division 2.3 of the Act governs applications for extended supervision orders. Section 22 allows the State to make such an application to this Court, and s 23 imposes various requirements with respect to such an application. There is no issue raised in the present case as to compliance with the various procedural requirements.
The determination of the present application is governed by Div 2.4 of the Act. The power to determine the application is conferred by s 25(1). Importantly, s 25(2) provides that in making that determination, the safety of the community must be the Court's paramount consideration. Moreover, s 25(3) provides that I must have regard to a number of specific matters, in addition to any other matters that I consider to be relevant. The considerations listed in subparas (a) - (m) of s 25(3) are mandatory. In reading the material provided to me for the purposes of determining this application, I have had regard to each and every one of those considerations to the extent that they apply in the present case.
Whilst I do not propose to summarise the entirety of the evidence which has been placed before me in support of the making of the orders, I do wish to refer to three specific reports.
The first is a report dated 17 July 2018 under the joint hands of Christopher Linton, a Senior Psychologist with Corrective Services NSW, and Cherice Cieplucha, the Acting Chief Psychologist. In that report the following observations are made (at [125]):
The overall totality of evidence suggests that Mr Elomar's risk profile for extremist violence, politically motivated violence and/or terrorism offences is moderate. Mr Elomar's risk of general offending was assessed in the high‑risk range with his risk of violent reoffending assessed in the moderate - risk range. Whilst his immediate presentation does not indicate imminence of risk, a number of specific risks need to be considered. These appear to be primarily associated with his social network and peer groups, and possible exposure to extremist networks, as well as his susceptibility to influence and his observed motivation by a desire for group belonging.
The second is a report of Stephen Woods, clinical, forensic and consultant psychologist of 18 July 2018, who observed the following (at p 33):
Risk assessment of Mr Elomar has revealed a heavy loading on historical factors associated with violent behaviour. Dynamic Risk analysis however suggests the risk of future reoffending may not be as high as would otherwise be indicated by his historical risk factors. Clinical forensic assessment of Mr Elomar, and having regard for the Risk‑Need‑Responsivity principles, suggests that an overly or unreasonably heavily restrictive management plan will potentially be risk management counterproductive.
The 'starting point' for risk assessment generally involves assuming the worst and then working back in order to determine why the individual should not be viewed as high risk. The basis of this rationale being the overriding need to protect the community. Obviously this approach, (i.e. to assume the worst) may be at odds with the difficult burden of a presiding judge when considering the available evidence in order to balance the rights of the individual whilst also protecting the community. In Mr Elomar's specific case, it is noted that he has served a non‑parole period imposed in response to the index offence, as well as a non‑parole period imposed in the Local Court in response to a conviction that was ultimately overturned in the District Court. This particular offence, overturned in the District Court, appears to have been a, if not the, determining factor triggering the application for seeking an extended supervision order.
The third is a report of Dr Kerri Eagle, forensic psychiatrist, dated 6 June 2018 in which Dr Eagle addressed (at para 193.5) whether the defendant posed a risk of committing a serious terrorism offence:
I am of the view that if Mr Elomar were to continue to associate with convicted terrorists and those known to harbour violent Islamic extremist beliefs, his risk of committing a serious terrorism offence would be significantly elevated, when compared to the rest of the population. The level of risk is otherwise difficult to assess on the basis of the available research. The primary or most important factors contributing to that risk are those said to be associated with an imminent risk of violent extremism such as continuing to seek information on a violent extremist ideology; immersing himself with violent extremist peers; joining or staying in a violent extremist organisation and making public statements about violent extremist beliefs. He has also displayed a few possible proximal warning behaviours of a loan actor attack, including fixation warning behaviour; (increased preoccupation with extremist Islamic believes and deterioration of function); identification warning behaviour (warrior mentality), and potential identification of aggression in the name of Islamic State; and prior to his arrest in 2012 an energy burst warning behaviour (acts of instrumental aggression and the Index Offence).
In addition, Mr Elomar has a number of the baseline characteristics shared by those who engage in terrorist acts (discussed above), including but not limited to the nature of his ideological beliefs (extremist Islamic beliefs); a personal grievance directed at the Australian Government and associated with moral outrage; his association with family and peers that have been engaged in terrorist acts; his apparent identification with a group of 'brothers' who have engaged in violent extremist acts.
When asked to comment as to whether any identified risk depended upon the nature and location of the defendant's accommodation in the community, Dr Eagle said (at para 193.6):
"Mr Elomar's primary risk factor is his association with violent Islamic extremist peers and his increased population with extreme Islamic beliefs. Many of these peers appear to reside or be located in close proximity to his previous residential location or have contact with his family at that location. It would be important, in managing his risk, that Mr Elomar reside and work in an area physically distant from potential violent extremist peers and areas that these groups might congregate, such as in Bankstown where the Al Risalah Bookstore is located).
Finally, when asked whether the proposed supervision conditions were appropriate, Dr Eagle said (at para 193.7):
"On the basis of the above assessment I am of the view that the primary goal of supervision should be to monitor and restrict access to peers or family members who have been associated with acts of terrorism or violent radicalisation. These restrictions would need to incorporate a mechanism to effectively manage access to social media in addition to other forms of potential contact."
I do not propose to specifically refer to the other material with which I have been provided. However, I record again that I have read it and have had regard to it in assessing the various matters that I am required to take into account under s 25(3). It would be fair to say that those reports to which I have specifically referred, as well as other reports contained in the material before me, identify a number of risks associated with the defendant. Bearing in mind that the paramount consideration in determining whether or not to make an extended supervision order is the safety of the community, I have necessarily had regard to the nature of those risks, and to the conditions upon which the parties agree and which are directed towards the management of such risks. I do not propose to set out the entirety of those proposed conditions but it is appropriate that I make the following observations in relation to them.
On any view the conditions are stringent. They number 54 in total. They are directed to addressing the risks which have been identified in the evidence generally, and specifically in the reports to which I have referred. They require the defendant, amongst other things, to accept supervision until the end of the order. They also require him to follow all reasonable directions of the enforcement officer who is assigned to monitor the order. They require him to provide a list of places that he proposes to regularly frequent or visit. They mandate that he live at an address which has been approved. They restrict his travel movements, to the extent that he is required to surrender his passport and is not permitted to leave the State of New South Wales without approval. They govern issues of employment, finance and education. They also mandate that the defendant is not to commence any employment, volunteer work or educational course without approval.
Importantly, in light of some of the risks which have been identified, the conditions require that the defendant not associate with, contact, or communicate with, persons specified by the enforcement officer. The conditions also prohibit the defendant's use or possession of firearms. They also place restrictions and conditions upon his access to the Internet, and to other forms of electronic communication. Perhaps even more importantly, the conditions prevent the defendant from purchasing, possessing, accessing, obtaining, viewing, participating in, or listening to, material which could be properly described as violent and/or extremist.
Bearing all of the evidence in mind, I am satisfied that an extended supervision order ought be made, and that the lengthy and stringent conditions which have been proposed by the parties are not only appropriate, but are necessary so as to properly address the issue of the safety of the community.
Accordingly, and for those reasons, I make orders in accordance with paras 1, 2, 3 and 4 of the form of consent orders, signed by me and dated today.
[2]
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Decision last updated: 17 August 2018