Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Church (Preliminary) [2021] NSWSC 246 Hearing dates: 5 March 2021 Date of orders: 18 March 2021 Decision date: 18 March 2021 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with Short Minutes of Order Catchwords: HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 – preliminary hearing – application for interim supervision order – application for court-appointed psychiatrists and/or psychologists – Whether defendant is a convicted NSW terrorism activity offender – Whether evidence would, if proved, justify the grant of an extended supervision order at final hearing – disputed conditions Legislation Cited: Terrorism (High Risk Offenders) Act 2017 (NSW) ss 4, 7, 10, 20, 23, 24, 25 27, 29, 29(1A) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code 1995 (Cth) Divs 101-103 Crimes Act 1900 (NSW) 51B Cases Cited: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 State of New South Wales v Naaman (No 2) [2018] NSWSC 1329 The Queen v Abdirahman-Khalif [2020] HCA 36; 94 ALJR 981 R v Dakkak [2020] NSWSC 1806 The Minister for Home Affairs v Benbrika [2021] HCA 4 State of New South Wales v Ceissman [2018] NSWSC 508 State of New South Wales v Bugmy [2017] NSWSC 855 Texts Cited: N/A Category: Principal judgment Parties: State of New South Wales (Plaintiff) Cody Nigel William Church (Defendant) Representation: Counsel: Ms K Richardson SC with Mr M Varley for the Plaintiff Mr J Stratton SC with Ms K Stares for the Defendant Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2021/00036956 Judgment 1. By summons filed on 9 February 2021, the State of New South Wales ("the State") applies for an Extended Supervision Order (ESO) for a period of 3 years against the defendant ("Mr Church") under the provisions of s 25 of the Terrorism (High Risk Offenders) Act 2017 (NSW). By way of interim relief, the State seeks an Interim Supervision Order (ISO) commencing on 19 March 2021 under s 27 of the Act and orders under s 24(5) of the Act appointing relevantly qualified experts to conduct separate psychiatric or psychological examinations and an order directing the defendant to attend those examinations. 2. The defendant strenuously opposes not only the final relief sought but also the interim relief. 3. The matter came before me on 5 March 2021 for a preliminary hearing under s 24(4) of the Act. Ms K Richardson SC with Mr M Varley of counsel appeared for the plaintiff. Mr J Stratton SC with Ms K Stares of counsel appeared for the defendant. The conditions for making an ISO are set out in s 27 of the Act. They are engaged if it appears: (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. 1. There is no question that paragraph (a) of s 27 is satisfied; Mr Church's current parole expires on 19 March 2021. 2. The conditions that must be satisfied before the Court may make an ESO are found in s 20 of the Act. It is unnecessary to set that provision out for present purposes. There is no issue between counsel that before an ESO may be made, the State must satisfy the Court of the following matters that: 1. Mr Church is an "eligible offender" within the meaning of the Act; 2. he was in custody or under supervision when the application was filed while serving a sentence of imprisonment for a New South Wales indictable offence; 3. the application was filed in accordance with the requirements of s 23 of the Act; 4. Mr Church, relevantly, is a convicted New South Wales terrorism activity offender; and 5. The Supreme Court is satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO: s 20(d) of the Act. 1. Concerning the condition imposed by s 20(d), it is worth bearing in mind that in the State of New South Wales v Naaman (No 2) [2018] NSWCA 328 the Court said (at [17]): 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. 1. As I have said, Mr Church strongly contests the State's entitlement to an order, and contests the salient facts alleged in the State's supporting documentation. However, there is a limit to my power to resolve that contest at this preliminary hearing. Speaking of the cognate provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) RA Hulme J said in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 (at [17]–[18]): A final matter to note from the caselaw concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J). The test in s 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". 1. In State of New South Wales v Naaman (No 2) [2018] NSWSC 1329, I summarised these considerations by saying at [48]: I think it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff's case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case. Issues 1. It is not in dispute between the parties that Mr Church is an eligible offender s 7 of the Act because he is serving a sentence of imprisonment, albeit currently on parole, for a New South Wales indictable offence. Nor is it in dispute that Mr Church was in custody when the summons was filed, albeit on parole. And nor is it in dispute that the procedural or formal requirements of s 23 of the Act have been complied with. 2. The issues for determination are: 1. Would it be open on the material before me to find that Mr Church is a convicted New South Wales terrorism activity offender under s 10(1)(c) of the Act; 2. If proved, would the facts alleged in the supporting documentation justify the making of an ESO; 3. Are there discretionary reasons to refuse to make an ISO; and 4. If an order is made what conditions should be imposed by reference to s 29 of the Act. Convicted New South Wales Terrorism Activity Offender? 1. The State relies upon s 10(1)(c). That paragraph is in the following terms: 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. 1. The State also invokes the extended meaning given to paragraph (c) by s 10(1A). In particular the State relies upon the extension of the meaning of the phrase advocating support for a terrorist act or violent extremism to include using or displaying images or symbols associated with a person, group or persons or organisation, or an ideology, that supports terrorists acts or violent extremism. In essence, the State's main argument for the purpose of the preliminary hearing is that the allegations in the material relied upon, if proved at the final hearing, would justify a finding that Mr Church was a convicted NSW terrorism activity offender because he has previously made "any statement" advocating support for violent extremism by using or displaying images or symbols associated with an ideology that supports violent extremism. These statements included seven social media posts on three separate social media accounts controlled by him, at various times between 7 March 2013 and 23 February 2018. As I will appear I will focus on posts on two of the accounts. 2. Very detailed submissions were directed to demonstrating that each of these accounts was associated with Mr Church. Whatever issue may be contested at any final hearing, I am satisfied that, at the fairly low level necessary for a preliminary hearing, the State's material is capable of establishing that matter on the balance of probabilities. The standard of a high degree of probability applying only to the question of unacceptable risk at the final hearing. Essentially the State relies upon the seven social media posts, Mr Church's association with certain individuals, his support for persons convicted of terrorism offences, Islamist literature found in his possession while he was in custody and certain writings of his own including letters to family members. 3. To make good its case, the State relies upon the analysis of Johnson J in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [160]-[162] to the effect that "like a circumstantial case in a criminal trial" it is necessary to consider the totality of the evidence relied upon by the State as a whole rather than "in a piecemeal fashion". 4. Mr Church argued that even at the preliminary hearing the material relied upon by the State did not support a prima facie case. Much of it was entitled to little, if any, weight and the State's argument confused expressions of sincere adherence to the Islamic faith based upon, even if, a literal understanding of the Qur'an with the profession of an ideology involving violent extremism. Salafi-Jihadi violent extremism 1. As Professor Greg Barton writes at [1.1.4] of his first report of 26 July 2020 (Vol. 2; tab 61; page 1852-1881): Fundamentalism, by definition, refers to religious movements, and other movements of ideas, that are anti-intellectual and reject long histories of scholarly effort and accumulated wisdom in interpreting texts. Fundamentalist movements tend to rely instead on charismatic lay people, dilettantes, and self-proclaimed experts whose relevant credentials are modest, who claim to be simply returning to literal and "straightforward" interpretation of scripture, which catch-cries of "back to the Qur'an" (or "back to the bible"). At the same time, they also claim to be returning their community of faith to an earlier golden age, which is generally at the time of the first generation of believers. In modern Islamic fundamentalism the claim is made that they are returning to the example of the Salaf al-salah – the righteous (salah) companions (salaf) of the Prophet Muhammad (in Protestant Christian fundamentalism the parallel would be returning to the time of the Apostles and the first century church). Professor Barton is not for a moment suggesting that Islamic fundamentalism itself is an ideology which supports violent extremism. On the other hand, he writes at [1.5.4]: The Arabic word "jihad" means to struggle or strive for something. It is often used to refer to struggling/striving by fighting in a just war, that is to say a war of self-defence. Salafi-jihadi violent extremists, however, see jihad as representing an obligation for all true Muslims, to be supported either through direct participation or through sponsoring. Moreover, they see jihad as necessary, and just, war that is not limited to responding reactively to acts of aggression but rather requires initiated acts of aggression against enemies of Islam. In Salafi-jihadi thinking the entire world has become a "domain of war" (darul harb). This is in sharp contrast with classical Islamic scholarship which sees the domain of war – darul harb – is limited to actual conflict zones. The Salafi-jihadi understanding of darul harb is used to justify pre-emptive violence against all who do not support their cause. Obviously if this opinion is accepted at the final hearing "any statement advocating support for… violent extremism" including "displaying images or symbols associated with… an ideology, that supports… violent extremism" on the part of Mr Church proved in evidence to the satisfaction of the judge would support a finding that he is a convicted NSW terrorism activity offender within the meaning of s 10 of the Act. 1. In the somewhat different, but analogous context of terrorist offences created by the Criminal Code (Cth) the plurality of the High Court of Australia in The Queen v Abdirahman-Khalif [2020] HCA 36; 94 ALJR 981 at [47] wrote of the Islamic State as an organisation which existed, inter alia, to "remain (sic) and expand through the acquisition of territory by violent jihad". It sought to recruit members "to subscribe to the Salafist ideology, to accept that it was their religious obligation to use violence against non-believers": at [47]. However, I would not regard it as necessary that the evidence at this preliminary hearing should be capable of justifying a finding adherence to the Islamic State. But the question is whether it would justify a finding at the final hearing that Mr Church had made statements advocating support for Salafi-jihadi violent extremism. Statements advocating support for violent extremism. 1. As Ms Richardson submitted, the expression "any statement" would be satisfied by a single statement covered by the statutory definition. Seven are relied upon. These are set out at paragraphs [113]-[142] of the State's written submissions in chief. I do not propose to analyse each of them in the detail with which they have been discussed in argument by counsel. I acknowledge the force of Mr Stratton's submission that the text on a number of the posts does no more than recite a Qur'anic verse. However, it is the total image posted that one must have regard to when considering the probative capacity of the post in question. 2. In any event, particular emphasis was placed by the State on a video posted on 31 July 2017. The video was drawn from YouTube and the text (omitting Arabic script which I cannot reproduce) is in the following terms: Jihad Nasheed come on immerse haya inghamiss Come on immerse in the dark disbeliever troops thrust your weapon in the heart of the criminal … 1. I should also say that at this time Mr Church was using the name Shahid al Mujaahid. The expert Dr R.D. Shanahan, in his first report of 6 January 2021 translated the name as Jihadist Martyr, potentially not insignificant evidence. Other like names to similar effect are used. I interpolate that Mr Church told corrections officers that he understood the name Shahid translated as Witness. Even so, one is still left with evidence capable of proving that he adopted the online persona of Jihadist Witness. 2. The post appears at Tender Bundle Volume 3, tab 73, page 2456–2457. According to Dr Shanahan, a nasheed is a chant or musical form of Arabic poetry that have been used by Islamist groups since the late 1970s. They reflect a strict Salafist interpretation of Islam that prohibits instrumental music. Jihadist nasheed is to appeal to the mujahideen. 3. In his second report of 14 February 2021, Dr Shanahan (Volume 3; table 81; page 2707) said: The combination of the moderator's chosen name, his post entry saying that 'Islam will never be defeated' and his sharing of a jihadi nasheed indicates support for violent extremism. 1. A second image was posted on 20 December 2017 under the same nom de plume. There is text partly in English and partly in Islamic script. According to Dr Shanahan in his second report, the meaning of the whole text is that entry to paradise requires belief in the oneness of God, a central tenant of Islam. In Dr Shanahan's opinion the Arabic script employed is the same as that found on the flag of Islamic State and used by Al-Shabaab in Somalia and Al-Qaeda on the Arabian Peninsula. In the opinion of the expert the use of the script may be understood as conveying support for Islamic state and, I infer, the other terrorist organisations mentioned. I record that Mr Stratton objected to the expert drawing conclusions about what was in the mind of Mr Church when he posted this material. I acknowledge the force of that objection. At the same time, his opinion will be relevant to facts in issue at the final hearing and, in conjunction with other evidence, may support an inference about the author's state of mind. 2. The third image is an image of a green bird with the quote, "in the hearts of green birds… we shall roam in Paradise". The quote is drawn not from the Qur'an, but from the hadith literature which are, according to Professor Barton, "anecdotal accounts of the Prophet Muhammad's life". Professor Barton is of the opinion that the "imagery… has become popular with Salafi-jihadi militants (mujahideen) in recent decades, especially during the ISIS/IS fighting in Syria/Iraq" (first report at [1.2.3]). Contemporary use of the images apparently dates to the Bosnian conflict between 1992 and 1995. There was a second green bird image dated 3 August 2017 (Vol. 2; tab 70; page 2262). The opinion of Dr Shanahan is to the same effect. 3. I acknowledge the force of Mr Stratton's submission that there is nothing overtly violent about these images. There is nothing overt or obvious to a viewer that would relate the images to violent extremism. However, that the availability of the inference contended for by the State may be contestable, at this preliminary stage, is not to the point. The expert evidence demonstrates that the inference contended for by the State is open. 4. The next post is dated 17 April 2017 and appears to depict the image of a militant over which the text reads: A man who lowers his gaze is a real man because he is strong enough to fight his desires. The male in the image is covering his face and head with a keffiyah, he appears to be firing a gun, and his chest is emblazoned with the text of the Shahada – "there is no God but Allah and Muhammad is His messenger". An explosion is erupting in the background of the photograph. Professor Barton accepts that the words are "innoxious" but the combination with other elements, in his opinion, presents a clear association between the figure depicted and Salafi-jihadi violent extremist subculture. There is a second image dated 6 December 2017 of a kneeling uniformed mujahideen, his rifle is cradled across his lap and his hands are raised as in prayer. The Arabic script translates, according to Professor Barton, as "Oh God grant victory to the mujahideen brothers everywhere". Professor Barton acknowledges that the text of the prayer is somewhat cropped. In Professor Barton's opinion the image explicitly refers to Salafi-jihadi mujahideen. 1. Other posts referred to Anwar al-Awlaki whom Professor Barton describes as the most influential of all western popularisers of Salafi extremism. He was killed in a drone strike by American forces. Yet other posts refer to Ahmad Musa Jibril, described by Professor Barton as a person who played a vital role in popularising Salafi extremism. The post dated 31 December 2017 contains an extract from a tract by Jibril warning against celebrating the holidays of infidels. Professor Barton regards the text as reflecting an extremely reactionary fundamentalist approach to interpreting Islamic belief and practice. It does not promote violent extremism but "sits comfortably with the fundamentalist Salafi sub-culture from which Salafi-jihadi violent extremism arises" (first report at [1.1.3]). Conclusion 1. While I accept that it's by no means inevitable that at the final hearing the Court will find that Mr Church is a convicted New South Wales terrorism activity offender, I have formed the view that the material to which I have referred is capable of supporting that inference. At the preliminary hearing, that these conclusions are or may be contestable is with respect not to the point. That contest will occur at the final hearing. Would the matters alleged in the supporting documentation justify the Court being satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO? 1. A serious terrorism offence is defined in s 4 of the Act to mean an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment. 2. It is necessary to set out the definition of a terrorist act found in s 100.1 of the Criminal Code (Cth): Terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. 1. Sections (2) and (3) of s 100.1 are in the following terms: (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. 1. The necessary dual intentions defined in paragraphs (b) and (c) of the definition of terrorist act need to be borne firmly in mind. 2. A cascading body of offending is covered by Divisions 101 to Division 103 of the Criminal Code. Other than the offence created by s 102.8 of associating with a terrorist organisation which carries a maximum penalty of imprisonment of 3 years, the various offences from s 101.1 to s 102.7 carry maximum penalties ranging between imprisonment for life and imprisonment for 10 years. Examples of the offences are: engaging in a terrorist act; providing or receiving training connected with a terrorist act; possessing a thing connected with preparation for a terrorist act; collecting or making documents connected with the preparation for a terrorist act; and any act done in preparation for or planning a terrorist act. There are a wide range of offences connected with the activities of terrorist organisations and financing terrorism. 3. It is obviously necessary to narrow the focus of consideration to matters fairly raised by the material. Although not mandatory for this purpose the considerations set out in s 25(3) of the Act are of some importance. Section 25(3)(b) refers to the results of assessments prepared by, inter alia, a registered psychologist as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in the assessment, and the level of the offender's participation in such an assessment. 4. The State relies upon the report dated 28 January 2021 of Dr Tamara Sweller, a registered psychologist. Dr Sweller is a senior psychologist with the Terrorism, High Risk Offenders Psychology Team involved in the countering violent extremism programs. Mr Church chose not to participate in Dr Sweller's assessment notwithstanding that he was given the opportunity. From the contents of her report, Mr Church's non-participation made it difficult for her to determine whether the assessments she made on the basis of the extensive material she was asked to consider had been ameliorated by changes in his attitude and behaviour since his release into custody or by reference to his explanation for attitudes he seemed to hold having regard to the extensive material. 5. In particular, Mr Church's non-participation limited Dr Sweller's ability to identify and assess any risk mitigating indicators. Obviously, as Dr Sweller pointed out, it is not possible to predict a person's future conduct. "[T]he best that can be provided is an estimate that is anchored to empirical literature, specifying features associated with risk, and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment" (Report at [69]; Vol. 2 tab 64; page 2111). 6. Applying the Level of Service Inventory – Revised (LSI-R) in relation to general offending, Dr Sweller assessed the risk as medium-high. Focusing on the Violent Risk Scale (VRS), Dr Sweller found that the overall results indicated that Mr Church's risk of violence fell within the high category. 7. Applying the Violent Extremist Risk Assessment – 2R (VERA-2R), in relation to this aspect of the assessment, Dr Sweller assessed Mr Church as falling into the moderate-high range. She checked her assessment against the results obtained by two senior colleagues trained in the use of the tool by a process of blind scoring, which verified her result. In regard to this result, Dr Sweller said (at page 2114): As [Mr Church] did not consent to participate in the current assessment, the VERA-2R was completed based solely on the file materials made available to the author. There may be information relevant to the assessment that is not currently available. It is also noted that the most recent information available to the author is primarily related to the period between 2016 and 2018. Mr Stratton emphasised these matters. However, in my view as Mr Church chose not to participate, it is difficult to me to do other than take Dr Sweller's assessment at face value. 1. Dr Sweller identified a myriad of risk promoting indicators, risk describing indicators and risk mitigating indicators to formulate conclusions about risk scenarios. 2. With no disrespect, formulating the relevant risk of Mr Church committing a serious terrorism offence if not kept under supervision, from Dr Sweller's report is no easy task. The matters are fully discussed by the expert at [117]-[124] of her report. In summary, the matters contributing are: his apparent adherence to a Salafi-jihadi ideology; his association with like-minded individuals; his use of social media to express views of the type identified in his posts between 2016 and 2018; and his need for acceptance, especially if his relationship with Ms XXXXXX and her children breaks down. In this event, his online activity may encourage others to engage in violent extremism or terrorism activity "whether this be intentional or not". Approbation of his expression of views online within his minority religious community may operate as positive reinforcement encouraging him to act on his perceived religious and moral obligations arising from his Salafi-jihadi beliefs. 3. While Dr Sweller seems to accept that Ms XXXXXX's involvement in Mr Church's life is a positive matter, she raises questions about the former's own beliefs and records that Mr Church has described Ms XXXXXX, on previous occasions, as controlling. 4. A further factor is Mr Church's history of suicidal ideation. He currently states he accepts that suicide is contrary to God's law. On the other hand, martyrdom provides a direct pathway to Paradise. Dr Sweller stated (at [121]): If Mr Church distinguishes between the view that suicide is forbidden in Islam and the view that jihad is acceptable, or desirable, he may be at risk of engaging in acts of violent extremism as an acceptable means by which to end his life, in addition to a means through which he can gain status and positive rewards in the afterlife. Specifically, through his knowledge about violent jihad, his sense of grievance towards those he holds responsible for the death of civilians in the Middle East, and his contact with individuals such as Mr XXXXXX and Mr XXXXXX, Mr Church may seek to travel overseas to engage in foreign incursions. Mr XXXXXX and Mr XXXXXX will be referred to again below. 1. Dr Sweller also referred to Mr Church's criminal record demonstrating a willingness to engage in violence to "manage his emotions, solve problems and fit in with his peers". This, coupled with his susceptibility to peer influence, may leave him vulnerable to others who may wish to encourage him to act on their behalf in the performance of a terrorist act. ​​​Risk management report - s 25(d) 1. I have had regard to the risk management report prepared by [the government officer] dated 5 February 2021 as approved by her superior, XXXXXX XXXXXX. It is the officer's opinion that Mr Church can be reasonably and practically managed in the community if subject to the supervision plan and conditions recommended. The suite of recommendations includes electronic monitoring. I observe that the conditions sought in the State's summons extend significantly beyond those proposed by [the government officer]. Treatment and rehabilitation programs - s 25 (e) 1. According to Dr Sweller there is some confusion about the various courses undertaken by Mr Church while in custody: at [113]-[115]. He has undertaken various adult educational and vocational training courses and certain offender programs in custody and in the community including various drug and alcohol programs. He claims to be free of substance abuse, at least largely due to his religious beliefs. Dr Sweller says some of his attendance at such programs was "sporadic". Mr Church says he has completed EQUIPS Aggression and EQUIPS Foundation. He undertook the Traffic Offender Intervention Program in August 2020, having regard to the serious traffic offences which in this case constitute the index offence. He has undertaken psychological intervention sessions at "Psych Central". 2. Of particular concern for present purposes is his involvement with the Countering Violent Extremism (CVE) Programs Psychology. He commenced participation in CVE in June 2020 while in custody and prior to his parole. However, he withdrew from the course on 7 December 2020 denying that he was an extremist. There is some suggestion that his wife, Ms XXXXXX, played some part in his withdrawal. Other available options - s 25(g) 1. Mr Church's current parole expires on 19 March 2021 and there is no evidence of other options in the community to manage the posited risk. The State does not suggest or seek a Continuing Detention Order. The likelihood of compliance - s 25(3)(h) 1. In contradistinction to his record in the past, Mr Church has been fully compliant with the conditions of his current parole. No complaint in that regard is raised against him. It is implicit in the opinion of [the government officer] that Mr Church will comply with an order, if one is made. Compliance with past parole - s 25(3)(i) 1. As I have said, Mr Church is currently compliant which is extremely positive on a number of levels. He was first released to parole on 30 January 2007. He was breached for drug and alcohol use and other non-compliance. His parole was revoked on 31 January 2008 after his arrest for robbery in company and assault occasioning actual bodily harm. 2. His next release to parole was on 5 March 2010. He was returned to custody on 25 January 2011 and had his parole revoked on 14 July 2011 due to further serious offending involving assault occasioning actual bodily harm in company, aggravated break and enter with intent whilst armed, and destroy and damage property. 3. A further release to parole on 24 February 2013 also resulted in revocation on 31 October 2013 due to significant non-compliance with important conditions of his parole including in relation to abstinence, counselling and reporting. He served out the balance of his term. 4. An adverse balance of parole report noted that Mr Church had failed on each of his three releases to parole against a background of serious offending. His behaviour in custody had been such that he had been segregated twice during his most recent incarceration for offences of violence. Until then he had not completed any programs. 5. Mr Church's current performance, as Mr Stratton submitted, seems to represent a vast improvement. Criminal history - s 25(3)(j) 1. Mr Church has a criminal history both in New Zealand, where he was largely raised, and in New South Wales. He was sentenced to 5 months imprisonment in 2003 for common assault in New Zealand. His offending in New South Wales includes assault occasioning actual bodily harm on 29 April 2004; fighting while in custody on 12 January 2006; malicious wounding in company in 2006, this offending involved the use of a knife; common assault and larceny also in 2006; and robbery in company and assault occasioning actual bodily harm in 2008. Mr Church was dealt with for assaulting another inmate with intimidation in custody in 2009. He was convicted of assault occasioning actual bodily harm in company in 2012. While in custody in 2014 he was reported to have seriously assaulted a cell mate. In 2018 while in custody he was dealt with for misconduct for assault. In 2019 he was charged with intimidation while in custody. 2. Overall, Mr Church has a poor record for violence. As can be seen, many of his convictions are for crimes of serious violence in company which may support Dr Sweller's view that he is susceptible to bad influence. The index offence and views of the sentencing court - s 25(3)(k) 1. The index offending consists of a suite of serious traffic offences committed on 20 September 2018. There is also a resist arrest of a minor type. The more serious offences were contrary to s 51B(1) of the Crimes Act 1900 (NSW) of engaging in a police pursuit. There were two separate counts occurring on the same day. Related offending arising out of this same episode of offending included exceeding the speed limit by more than 45 km/h and 3 counts of driving in a manner dangerous. For the whole suite of offending an aggregate sentence of 2 years and 6 months with a non-parole period of 1 year and 10 months was imposed in the Penrith Local Court on 13 June 2019. He had been in custody on remand since his arrest on 20 September 2018. 2. The motive for this offending appears to be drug affectation, strongly suggesting his substance abuse has not been under control, and the desire not to be apprehended. He was then the holder of a provisional licence. In addition to the prison sentence, the magistrate imposed a period of disqualification of 5 years in total. 3. The circumstances of the pursuit occupied some 3 hours and 18 minutes. The operation involved police aircraft, 13 police vehicles and 23 police officers. During the episode of offending Mr Church was involved in 3 minor collisions and many incidents of dangerous driving including crossing to the wrong side of the road, mounting footpaths and disobeying stop signs in his effort to evade apprehension. 4. Police attention was first attracted at about 8 am in the Richmond area when Mr Church was observed to be travelling at 75 km/h in a 50 km/h zone. When he became aware that his offending had been detected he accelerated to a speed of about 100 km/h and at times was clocked at 140 km/h. 5. The offending ranged from, as I have said the Richmond area to Wentworth Falls in the Blue Mountains and he was finally arrested at Roselands. There can be no doubt that his offending and the necessary police operation involved a significant degree of risk of harm to the public. 6. As the learned magistrate remarked, adopting a prosecution submission, "it is astonishing that there was no serious crash or death or serious injury". 7. Having acknowledged what had been put forward by way of subjective circumstances, the learned magistrate concluded his remarks (his Honour Magistrate Van Zuylen) (Vol. 2; tab 66A; page 2170-1): ... given the extraordinarily serious driving behaviour in the more than 3 hours of various police pursuits, a police helicopter having to pursue you, the speed at which you were travelling in school areas on busy roads at a busy time of day, the enormous amount of resources that had to be deployed to follow you and in the end arrest you, the Court is of the view that there is no other alternative than a sentence of full time imprisonment and it will be an aggregate sentence. Results of psychiatric and psychological assessments - s 25(3)(b) 1. Mr Church was born in 1985 of Maori parents then living in Queensland. His parents separated when he was an infant and after a period of fostering, he returned to his father's native New Zealand to live with him. There can be no question on the various histories given and accepted by psychiatrists and psychologists who have examined him for the purposes of various prosecutions over the years that he had an extremely dysfunctional, deprived and violent upbringing. The violence was inflicted at the hands of his father including apparently an assault with a hammer which led to a fractured skull. His schooling was extremely dislocated. Although the histories are contradictory, he seems to have had a better relationship with his paternal grandparents who were adherents of Mormonism, but it seems they too were strict disciplinarians. 2. He was diagnosed with ADHD at about the age of eleven and was prescribed Ritalin, the use of which he desisted after two years because of the side effects. He has reported symptoms of depression and anxiety over the years and attempted suicide at the ages of 15, 18 and in his early twenties. Without discounting the seriousness of this history, it is not clear how determined the attempts were. He developed a substance abuse problem at an early age. 3. He returned to Australia in his mid to late teens to reside with his mother but had difficulty adjusting to her new family life and seems to have been more or less independently living as best he could from a time soon after his return. 4. At times he has reported psychotic type symptoms, including auditory hallucinations and feelings of heightened paranoia. He has also suffered from ideas of reference. However, in his report of 11 December 2019, Dr Gordon Elliot, Consultant Psychiatrist, while accepting the psychotic symptoms due to substance abuse, expressed the opinion that Mr Church was not suffering from schizophrenia. The only treatment suggested was a limited course of anti-psychotic medication and abstinence from illicit substances. 5. Dr Elliot also received a history of childhood sexual abuse. Against the unfortunate dysfunctional childhood developmental experience of Mr Church, Dr Elliot considered he had "significant anti-social personality traits". 6. Prior to his release on parole in July 2020, a psychological assessment was made on 18 June 2020. The psychologist, assessing his self-reports, stated that Mr Church appeared to be "a person who is exceedingly trusting and open in relationships". This suggested vulnerability to interpersonal exploitation. 7. This vulnerability and susceptibility to manipulation is a factor also identified by Dr Sweller as one of the risk factors. Mr Church's religious ideology - s 25(3)(l) 1. I have already dealt with the pertinent evidence as to Mr Church's religious ideology when dealing with the question of whether he is a convicted New South Wales terrorism activity offender. In my judgment, the facts alleged in the State's material are capable of justifying a finding at the final hearing that he is an adherent of Salafi-jihadi violent extremist beliefs or ideology. This too, is a poor prognosticator for a risk of serious terrorism offending. Other relevant information - s 25(3)(m) 1. Mr Church apparently converted to Islam while in custody in 2011 or 2012. Certainly by 2012 he made it known that he wished to be treated as a Muslim while in custody. 2. In addition to the Facebook posts referred to as s 10 criteria, the State relied upon posts expressing: Mr Church's concern about the plight of fellow Muslims in Ghouta, Syria at the hands of government forces; leonine imagery; a reference to the Egyptian Islamist Sayyid Qutb tried and executed by Egyptian authorities in 1966 for subversive conduct (second Shanahan report, paragraph 9(f)); the use of the Qur'anic verse, "Allah is the best of planners", which Dr Shanahan states is favoured by Salafi-jihadi extremists including in Australia; Mr Church's "love" of the Al Risalah book store; his propounding of the innocence of Sulayman Khalid convicted of terrorism offences; and various other posts asking for prayers for the mujahideen, invoking, invoking Sharia and proposing the religious way of the ways of society. 3. During a cell search on 6 May 2020 about 22 Islamic books were found in Mr Church's possession. Of these only one is apparently of concern, being The Reality of Shi'ism, which according to Professor Barton (second report at [1.17]) is a controversial and sectarian denunciation of Shia Muslims which is popular with adherents of Salafi-jihadi violent extremism. There are also handwritten notes of a sermon justifying the "Khalifah" of justice which in a modern liberal democracy is regarded as barbaric, but practiced by ISIS (Professor Barton's first report, Vol. 2, page 2104). 4. In addition, the State submits that Mr Church has a number of associates of concern. In his Facebook persona, Mr Church was "friends" with Radwan Dakkak. Their "conversations" have fundamentalist content, but more particularly on 18 December 2020, Dakkak was convicted of and sentenced for 2 counts of knowingly associating with a member of a terrorist organisation contrary to s 102.8(1) of the Criminal Code. He is also subject to an Interim Control Order under Division 104 of the Criminal Code imposed by Yates J on 31 December 2020 in the Federal Court of Australia. XXXXX XXXXX visited Mr Church in custody 13 times between July 2019 and February 2020. Mr Church denies an ongoing association. Police intelligence suggests he is a radicalised individual. 5. XXXXXX XXXXX appears to be a close associate of Mr Church. He too has visited Mr Church in custody. More significantly he provided a character reference at the proceedings on sentence for the index offending, vouching that Mr Church had performed volunteer work with the Islamic charity, Dar Al Quran Wa Sunnah. Interestingly, a search warrant executed by NSW Police on 28 November 2019 at Mr XXXXX's home located Mr Church's Australian passport there. Intelligence reports suggest he has extremist Islamic views and is a supporter of ISIS. It is suggested he has provided financial support to would-be "foreign fighters". Police intelligence recorded a report that he is attempting to recruit young men and women to the cause of Islamic State. I acknowledge that intelligence reports may be entitled to limited weight at the final hearing. 6. Isaac El Matari is a Facebook "friend". He apparently lived at the premises operated by Dar Al Quran Wa Sunnah. He was mentioned in the reasons for sentence in R v Dakkak [2020] NSWSC 1806 at [8], Hamill J, as having travelled to Lebanon in 2007 in an unsuccessful attempt to join Islamic State. On 2 October 2020, he pleaded guilty to two serious terrorism offences contrary to s 119.4 and 101.6 of the Criminal Code (Cth). On 27 August 2014 Mr Church provided the address of XXXXX XXXXX as an intended residence if released to parole. Mr XXXXX operated the Al Risalah bookstore said to be a haunt of adherents of violent extremism. A sometime associate, Blake Pender, was convicted of possessing a knife connected with a terrorist act, contrary to s 101.4(1) of the Criminal Code (Cth). Mr Church and Mr Pender were associating on 20 May 2016 when spoken to by police. 7. The State also seek to impugn Mr Church's association with his wife, XXXXX XXXXX. Her brother is said to have been a "foreign fighter" killed in Syria or Iraq. There are a number of transcripts of gaol telephone conversations between Mr Church and Ms XXXXX relied upon by the State. Apart from one not wholly decipherable reference to a Qur'anic verse about the release of hostages, having read each of them for myself carefully, I am not convinced that they would justify an inference at the final hearing that she, herself, is a person of Salafi-jihadi violent extremist views. 8. Ms XXXXX seems to be a mixed influence in Mr Church's life. Their relationship has at times been fractured. In one of the calls at least there is acrimony between them over charges by Mr Church that Ms XXXXX "dishonoured" him. He has also described her as controlling and there is a suggestion in the material that he discontinued the CVE psychology program at her behest. On the other hand, it is apparent from Dr Sweller's opinion that she and her children are a significantly stabilising influence in Mr Church's life, at least currently. It cannot be overlooked that they are married and there is a limit to the legitimate reach of the State into the personal life of the individual. Consideration 1. In considering whether the matters alleged in the State's supporting documentation would, if proved at the final hearing, justify the making of an ESO and in particular whether they are capable of supporting a finding to the requisite high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision, I have borne in mind the following matters: 1. the question is not whether the matters alleged, if proved, will justify the making of an ESO. It is not my task to attempt to predict the outcome of the final hearing; 2. I am required only to assess what the matters alleged are capable of proving if those matters are established at the final hearing. I am not concerned with the weight due to or the persuasiveness of the matters alleged; 3. as the Court of Appeal pointed out in State of New South Wales v Naaman (No 2) at [29] by its sixth proposition, the making of an ESO "may be counter-productive if the Court were satisfied that there would be the substantially the same risk, or indeed a greater risk, if the defendant were kept under supervision"; 4. the recent case of The Minister for Home Affairs v Benbrika [2021] HCA 4 concerned a Continuing Detention Order under Division 105A of the Criminal Code (Cth) which is legislation broadly cognate with the Act. A plurality of Kieffel CJ, Bell, Keane and Steward JJ said at [46]: It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious Pt 5.3 offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community.... It is important that the restriction upon individual liberty involved in the making of a continuing detention order is dependent upon the risk of an offence being "unacceptable" to the judge in light of the facts as they appear at the time he or she is asked to make the order. (Emphasis added); 1. the difficulty of identifying such a real risk of the commission of a serious terrorism offence having regard to the apparent complexity of the Commonwealth legislation and the breadth of matters covered by it. 1. Although the statement in Benbrika was made about a continuing detention order, the same considerations, it seems to me, inform the making of an ESO with perhaps some easing of emphasis given that an ESO is "less intrusive on personal liberty" than a continuing detention order: Benbrika at [46]. 2. These considerations perhaps go more to the residual discretion than whether the statutory conditions for making an order have been satisfied. However, the language of "a real threat of harm to the community" also gives some content to the idea of "unacceptable risk". 3. Bearing in mind these restraints in the exercise of the s 25 power after a final hearing, I am satisfied that the matters alleged in the material relied upon by the State, if proved, after a final hearing would, not must, justify the making of an ESO. That is to say, in particular in this context, I am satisfied to the extent necessary after a preliminary hearing that the matters alleged in the State's documentation, if proved at the final hearing, would, not must, justify the Court being satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO. 4. A number of matters have led me to this preliminary conclusion. Mr Church's bad record for the commission of serious crimes of personal violence in company brings to mind the psychological evidence I have referred to above that he is a person who is easily influenced and susceptible to manipulative exploitation by others. This makes him vulnerable to the encouragement of others to offend, a matter which seems particularly relevant to the risk of the commission of a serious terrorism offence. The evidence which led me to find that the matters alleged in the State's material would justify a finding that he is a NSW convicted terrorism offender are capable of supporting a finding that he is an adherent of a fundamentalist Salafi-jihadi ideology which promotes violent extremism as a means of propagating what its adherents conceive of as God's truth. 5. His childhood deprivation also may make Mr Church vulnerable to a need to belong, and to justify his belonging. In part, he may have found that in his adherence to the ideology I have referred to. This may be a factor motivating him to undertake a terrorist act. 6. His obvious admiration for the mujahideen and his acceptance of the "green bird" romanticism also contributes to a risk that he may seek to emulate them. 7. Mr Church's mental health issues, such as they are, involving a degree of suicidal ideation (at least in the past) and psychotic symptomatology, if he abuses illicit substances, are capable of enhancing the risk. In context, again given his susceptibility to suggestion, his association with persons with terrorist links and his belief in the innocence of convicted terrorists may be an important risk factor. 8. Naturally as the only expert to have addressed the question, Dr Sweller's views cannot be overlooked at this preliminary stage whatever weight they command after a contested final hearing. 9. I have not forgotten the complexity of the provisions of Part 5.3 of the Criminal Code (Cth), especially the consideration that the fault element of terrorist act involves an intention of advancing an ideological cause and the intention of intimidating a government or the public. 10. The index offending is also not without significance. It involved significant danger and disruption to the public over a lengthy period requiring the diversion of significant law enforcement resources to contain and suppress it. 11. In my opinion, the real risk that the matters alleged are capable of establishing after a final hearing, bearing in mind the higher standard of proof required, is the risk that Mr Church will commit a terrorist act, either of his own volition or with the encouragement of others, involving a random attack on innocent members of the public utilising a weapon of some kind with the intention of furthering his ideology and the intention of intimidating the public or a section of it. Of necessity the risk involves the potential for serious physical harm to a person or persons. If the matters alleged are proved, it may be that the likelihood of the risk materialising is not highly probable. But nor is it insignificant. And a not insignificant risk of the kind I have formulated would be, in my opinion, unacceptable. Residual discretion 1. The opening words of s 27 of the Act confer a real discretion on the Court whether or not to make an interim order, even if the statutory conditions in paragraphs (a) and (b) are satisfied, as they are in this case. Mr Stratton argued very strongly that given what he had submitted about what he would characterise as the inherent weaknesses in the State's case, I would exercise my discretion not to make the order sought. I agree with Rothman J in State of New South Wales v Ceissman [2018] NSWSC 508 at [38] that: Discretionary factors would need to be strong before the Court, at an interim proceeding, would refuse an order, after necessarily concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level. I acknowledge the force of the argument, but I am not of the view that it is so strong as to justify a refusal of an interim order in the exercise of my discretion. 1. It follows from my determination that I must make orders in accordance with s 24(5) appointing two relevantly qualified experts to furnish reports to the Court and directing Mr Church to attend those examinations. I will also make an Interim Supervision Order for a period of 28 days commencing after the expiration of Mr Church's current sentence on 19 March 2021. ​​​​​​​ 2. I turn then to the question of conditions. Conditions 1. Section 29 of the Act confers a broad power on the Court to impose appropriate conditions of a supervision order. It is important for me to record that s 29(1A) of the Act presumptively requires the imposition of a suite of 18 detailed conditions "unless the Supreme Court orders differently". It seems to me that I would only order differently for good reason given that Parliament has determined that the conditions identified should be imposed in the ordinary case. 2. There is a significant dispute between the parties about the appropriate conditions. I have had the benefit of oral and written submissions by learned junior counsel for each of the parties. Mr Varley, junior counsel for the State, has provided me with a table of proposed ISO conditions in landscape form running to some 23 pages and summarising the respective position of each party. I propose to make my decision by reference to Mr Varley's table, which I marked MFI 2 at the preliminary hearing. 3. Condition 1 is the condition prescribed by s 29(1A)(a). The real dispute between the parties is whether Mr Church should be required to obey a direction from the enforcement officer responsible for his case to provide a schedule of movements. Mr Church submits that that requirement is unduly onerous given that he is in regular employment as a scaffolder but that his hours of work may be variable due to weather conditions, the requirement to perform night work and other vagaries of such employment. 4. I understand the utility in most cases of a schedule of movements, but it would be unreasonable to require a minute breakdown of all movements which may occur during an ordinary week given the relative stability of Mr Church's current lifestyle. As this is a prescribed condition, I will allow it in the form appearing in the first column to MFI 2, but I will add after the phrase "schedule of movements", the words "consisting of a broad outline of the defendant's expected movements during the period intended to be covered." 5. Condition 2 is the condition prescribed by s 29(1A)(j). The State agrees to Mr Church's proposed amendment appearing in the second column of MFI 2 and I so order. 6. Condition 3 is agreed and will be imposed. 7. Condition 4 is disputed; it appears in the first column of MFI 2 and requires the defendant to carry a mobile phone so he may be contacted by the enforcement officer as required. Mr Church submits that he should only be required to ensure that he is available to answer a call "outside of his work hours". He is employed as a scaffolder and subject to workplace health and safety regulations and it may-well not be practicable for him to either have his phone on him at all times or answer it when called. 8. Doubtless telephone spot checks can be important as an aspect of supervision. For instance, it may be legitimate for an enforcement officer to call to check that Mr Church is at work in accordance with his schedule of movements. I accept the State's submission and I impose condition 4 as it appears in the first column of MFI 2. 9. Condition 5 prohibits Mr Church from purchasing, hiring or driving a vehicle without prior approval. It is opposed because of the period of disqualification imposed by Magistrate Van Zuylen. It is also said to be an unreasonable imposition. Given the disqualification, the proposed condition can but lightly burden Mr Church's liberty. Moreover, disqualified persons are often known to drive. The use of a vehicle increases mobility and therefore the opportunity for relevant offending. Condition 5 may be imposed in the form in which it appears in the first column of MFI 2. 10. Condition 6 relates to reporting the registration of any vehicle owned by the defendant or which he intends to drive. Mr Church seeks to amend the condition to allow a period of grace of 48 hours. The State presses it in the form proposed. Mr Church's disqualification would not stop him from owning a vehicle. It seems to me Condition 6 must be subject to the implication of reporting the details within a reasonable time in any event. I would not alter it and it may be imposed as it stands in the first column of MFI 2. 11. Conditions 7, 8 and 9 relate to "financial oversight". 7 and 9 are agreed and may be imposed in the form of which they appear in the first column to MFI 2. Condition 8 is opposed. It requires prior permission to spend more than $500 from the enforcement officer. I appreciate that financing terrorist acts is a serious terrorism offence under Part 5.3 of the Criminal Code (Cth) but it is outside the risk I have identified. Mr Church is an ordinary working person in regular employment as a scaffolder. I infer he is the breadwinner of his household and transactions of more than $500 would not be very unusual. Mr Varley informed me in the course of submissions that there were 12 such transactions in Mr Church's account which obviously law enforcement officers have accessed under statutory power. In my view Condition 8 is unnecessary for the management of the particular risk presented by Mr Church and I decline to impose it. 12. Condition 10 relates to electronic monitoring. It is a condition prescribed by s 29(1A)(b). It is opposed by Mr Church and pressed by the State. Mr Church argues that the condition is unnecessary, especially having regard to his full compliance with the conditions of his current parole, which did not involve electronic monitoring. It is also submitted, it is punitive in nature and unnecessary to control the risks identified. 13. Electronic monitoring very frequently has an important place in the regime imposed under supervision orders. I have given this matter serious thought. Electronic monitoring is extremely onerous and has the potential to stigmatise the wearer as an offender leading to social shunning, a factor which may itself create resentment which may in turn increase the risk of offending rather, than reduce it. 14. The measure is most appropriate when an offender is reintroduced into the community after serving a long sentence without any established pro-social contacts or supports. That is not Mr Church's situation. 15. I also bear in mind the statement of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89] as follows: The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending… The conditions must not be unjustifiably onerous or simply punitive... Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways. (Citations omitted.) I regard her Honour's statement as applicable in the present case. The risk I have identified as possibly arising from the matters alleged is capable of materialising even when Mr Church is conducting himself entirely with his schedule of expected movements. 1. For these reasons I decline to impose condition 10, that is to say, for the reasons I have given I am ordering differently. 2. Conditions 11, 12, 13, 14, 15 and 16 relate to Mr Church's accommodation. Conditions 11, 13 and 16 are not opposed and may be imposed in the form in which they appear in the first column of MFI 2. 3. Condition 12 is the condition prescribed by s 29(1A)(f). I accept the State's submission that compliance with rules or by-laws in shared or community accommodation may be an important compliance requirement. Failure to comply is anti-social behaviour which may presage incipient offending. Condition 12 may be imposed in the form in which appears in the first column of MFI 2. 4. Condition 14 is a curfew between 9 pm and 6 am except as arranged with the enforcement officer. This is opposed by Mr Church. It is submitted that a curfew is not a condition of his parole, and his compliance with parole without further offending suggests it is unnecessary. The State presses the condition. 5. In my judgment a curfew is not unreasonable and it may be expected that the conditions of an ISO will be more onerous than those of parole. I would, however, amend Condition 14 by adding at the end of it, "the enforcement officer is to approve departure from the curfew for the performance of night work and all other reasonable requests". 6. Condition 15 requires the enforcement officer's approval for other persons to enter, remain or stay at Mr Church's home. Mr Church seeks an amendment to exclude his wife and her children who are ordinary members of his household. The State opposes this. 7. I accept that inappropriate associations are a risk factor in this case and that in general terms Condition 15 is appropriate. On the other hand, as I have said, it's not obvious that the evidence about XXXXX XXXXX is capable of proving that she is an inappropriate associate. Moreover, as I have remarked already, Ms XXXXX is Mr Church's wife, for better or worse so far as the State is concerned. It is inappropriate that law enforcement officers should be empowered by order of the Court to control the domestic life of husband and wife. Some social values are fundamental. The sanctity of marriage is one of them. I accept Mr Church's submissions. I impose Condition 15 as it appears in the second column of MFI 2. 8. Conditions 17, 18, 19 and 20 relate to place and travel restrictions. Condition 17 is a condition prescribed by s 29(1A)(r). Mr Church submits there is no suggestion that any particular place may be associated with the risk of the commission of a serious terrorism offence. I am unpersuaded by that argument and Condition 17 may stand as it appears in the first column of MFI 2. 9. There is no issue about Condition 18 and it may be imposed as it appears in the first column of MFI 2. 10. Condition 19 relates to the possession of a passport. The State submits that it is a prescribed condition. I, frankly, am unable to pick it up in the provisions of s 29(1A). In any event, it is not an unreasonable condition. Mr Church wishes to interpolate the word "intentionally" before "be in possession of any passport". I regard this as unnecessary and the Condition may stand as it appears in the first column of MFI 2. 11. Condition 20 prohibits Mr Church from going within a certain distance of points of international departure and Bankstown Airport. It is not obvious to me why Bankstown Airport is specified, except perhaps for the reason that charter flights interstate may depart from that location. Mr Church is concerned that this condition may unduly and unintentionally impede his legitimate free movement for the purposes of employment. 12. I would amend Condition 20 as it appears in the first column of MFI 2 by deleting the matter "1 km" and substituting therefor "300 m". I would also add at the end of the condition, "It is not a breach of this condition if the defendant passes within 300 m of a specified location in the course of his employment or on a journey to and from work." 13. Conditions 21 and 22 relate to powers of search and seizure. Condition 22 is agreed and may be imposed in the form in which appears in the first column of MFI 2. 14. Condition 21 seems to be an amplification of the search condition prescribed by s 29(1A)(e). Mr Church submits that the power should be conditioned upon the enforcement officer holding a reasonable belief that a condition of the order is not being complied with. I do not agree. It seems to me that the legitimate exercise of the power of search may go beyond checking compliance with conditions. The prescribed condition is more than a mere enforcement condition. On the other hand, I am of the view that the condition as proposed by the State is too broad. I will impose the condition in the form in which it is prescribed by s 29(1A)(e). 15. Conditions 23 to 27 relate to drug and alcohol. Conditions 23, 24, 25 and 26 are agreed and may be imposed as they appear in the first column of MFI 2. 16. Condition 27 prohibits contact, communication, association or affiliation with people who are consuming or under the influence of illicit drugs or alcohol. The dispute concerns the requisite state of mind of Mr Church to constitute a breach. Frankly, it is an arid argument. I appreciate that breach of a condition is a serious indictable offence which may be dealt with summarily under s 30 of the Act. I do not regard breach of s 30 as a strict liability offence. Non-compliance must involve a requisite mental element. Introducing actual or constructive knowledge in my opinion merely unduly complicates the question of compliance. Condition 27 may stand as it appears in the first column of MFI 2. 17. Conditions 28 and 29 relate to possession or use of weapons. Condition 28 is agreed and may be imposed as it appears in the first column of MFI 2. I note that it is also a condition prescribed by s 29(1A)(i). 18. Concerning Condition 29, the dispute is about the risk of unintentional breaches exposing Mr Church to a heavy penalty. It is suggested that compliance should be restricted to "a public place" and there should be a clarification of one aspect of the proposed condition. The State accepts the clarification, but not the "public place" qualification. I accept the State's submissions. Restricting compliance to a public place in my opinion would substantially reduce the utility of the condition as a means of managing the risk. Condition 29 may be imposed in the amended form in which it appears in the third column of MFI 2. 19. Conditions 30 to 35 are concerned with healthcare treatment. Conditions 30, 32, 33 and 34 are not disputed and may be imposed in the form in which they appear in the first column of MFI 2. 20. Condition 31 requires Mr Church to provide the enforcement officer with the names and addresses of health care practitioners he consults. He submits he should only be required to divulge practitioners consulted for mental health or substance abuse issues. I can see a legitimate purpose in managing the risk by disclosure of the name and address of healthcare professionals consulted generally and the condition may stand as it appears in the first column of MFI 2. 21. Condition 35 relates to the disclosure of his confidential healthcare information by the provider to the enforcement officer. Mr Church would agree to a more convoluted requirement restricting it to mental health and substance abuse issues but only if the healthcare practitioner reasonably believed it was necessary to guard against the risk of serious offending. This imposes, in my view, an unreasonable or unnecessary burden on the healthcare professional and I reject Mr Church's submission. 22. It does not follow that Condition 35 should be allowed. As things presently stand I can see no legitimate purpose for the condition other than as an enforcement condition in respect of the preceding conditions. I would amend Condition 35 by adding at the end of it "information may be disclosed to or shared with an enforcement officer only for the purpose of ensuring compliance with Conditions 30 to 34 and only if the enforcement officer suspects on reasonable grounds the defendant has not complied with those conditions." 23. Conditions 36 and 37 deal with employment and like issues. Condition 36 is agreed and may stand in the form in which it appears in the first column of MFI 2. 24. Condition 37 is the condition prescribed by s 29(1A)(l). Although obtaining work, undertaking volunteer work or pursuing education are pro-social activities which should be encouraged, I can well understand why in this area of discourse input from the enforcement officer may assist to manage the identified risk. Some jobs, volunteer work or educational courses may increase the risk. Condition 37 can be imposed as it appears in the first column to MFI 2. 25. Conditions 38 to 44 relate to the use of personal electronic devices. Conditions 38, 39, 40, 42 and 44 are agreed and agreed and may stand in the form in which they appear in the first column of MFI 2. 26. Condition 41 prohibits the deletion of data. Mr Church wishes to guard against criminal liability for accidental deletion of data. As I have previously said, properly understood s 30 of the Act must imply intent as a fault element and the condition may stand as it appears in the first column to MFI 2. 27. Condition 43 relates to providing identification details of personal electronic equipment used by the defendant. Mr Church objects to the requirement that he provide "details of any internet connection used by the defendant". It is submitted that the ubiquitous nature of Wi-Fi connections in places of business may make it impossible for Mr Church to comply with Condition 43. I do not agree. Condition 43 may stand as it appears in the first column to MFI 2. 28. Conditions 45, 46, 47, 48 and 49 relate to associations. All but Condition 49 are contested. Condition 49 may be imposed in the form in which it appears in the first column of MFI 2. 29. Condition 45 permits an enforcement officer to prohibit specified associations. Mr Church wishes to make it clear that his wife is a person with whom he is permitted to associate. This is reasonable for the reasons I have already given. Condition 45 as it appears in the second column of MFI 2 may be imposed. 30. Condition 46 speaks of the "identity" of a person and Mr Church says he should be required only to "name" the person. Identity is a word of many shades of meaning and therefore the Condition may be difficult to comply with. I agree Condition 46 as it appears in the second column of MFI 2 may be imposed. 31. Condition 47 prohibits contact or communication with terrorist organisations. Mr Church wishes to restrict the condition to organisations that he knows advocate support for terrorist acts. As I have previously said, s 30 of the Act is not an offence of strict liability. Condition 47 may be imposed in the form in which it appears in the first column of MFI 2. 32. Condition 48 prohibits contact or communication with supervised offenders. Mr Church is concerned that he may come across such persons on busy building sites. The State accepts this may be a problem and proposes a qualification which includes a reporting requirement. In my opinion the State's proposed amendment is reasonable and Condition 48 may be imposed in the form in which it appears in the third column of MFI 2. 33. Condition 49 is agreed and may be imposed in the form in which it appears in the first column to MFI 2. 34. Conditions 50 to 53 relate Mr Church's identity and appearance. Conditions 50, 51 and 52 are agreed and may be imposed in the form in which they appear in the first column of MFI 2. 35. Condition 53 is a condition that Mr Church must not significantly change his appearance without prior approval. This is contested. It is notable that Condition 52 permits an enforcement officer to photograph Mr Church including, "following any significant change to his appearance". Whereas this condition is not necessarily inconsistent with Condition 53, Condition 52 implies that changes to Mr Church's appearance will be permitted. The obvious import of Condition 53 is to prohibit Mr Church from disguising his appearance and if understood in that way, it is not unduly oppressive. Clearly significant changes in one's appearance for the purpose of disguise are factors which may presage conduct which increases the risk. I impose Condition 53 in the form in which it appears in the first column of MFI 2. 36. Conditions 54 and 55 relate to extremist activities. Condition 54 is agreed and may be imposed in the form in which it appears in the first column of MFI 2. 37. Condition 55, which relates to purchasing, possessing, accessing or the like extremist material, is contested. Mr Church has proposed a very complex condition predicated upon a reasonable person test and incorporating definitions of "terrorist organisation" and "terrorist act". In my view, the proposed amendments detract from the simplicity and workability of the original proposal. Condition 55 may be imposed in the form in which it appears in the first column of MFI 2. 38. Part P of the proposed Condition is unnumbered and is a definitions section. Mr Church opposes it on the basis of its complexity. He has scholastic limitations although he is of at least average intelligence. It is clear from his Facebook postings and from the books and writings recovered from his cell while in custody that he in fact has acquired a degree of sophistication in literacy. Given that a breach of the conditions is a criminal offence under s 30 of the Act, the incorporation of a definitions provision enhances certainty rather than uncertainty. This will be especially so if there is any dispute about breach of a condition in the future. The definitions section may stand. 39. Orders: 1. I direct the parties bring in Short Minutes of Order giving effect to my findings and these reasons by 12 noon on Friday 19 March 2021. ********** 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: 19 March 2021