Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Ceissman [2021] NSWSC 390 Hearing dates: 15 April 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to s 31(1) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"), vary the extended supervision order made by the Court on 18 July 2018 by replacing the schedule to that order with the amended conditions set out in Schedule A ("the amended ESO conditions"); (2) Pursuant to s 11 of the Act, direct the defendant to comply with the amended ESO conditions; (3) Order that access to the Court's file in this proceeding be restricted, such that access would be permitted to a non-party only with the leave of a judge of the Court and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. Catchwords: HIGH RISK OFFENDERS – Extended supervision orders – Application – Variation Legislation Cited: Community Protection Legislation Amendment Act 2018 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: State of New South Wales v Ceissman (No 2) [2018] NSWSC 1237 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Greg Ceissman (Defendant) Representation: Counsel: Mr I Fraser (Plaintiff) Dr A Hughes (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/107952 EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: This is an application by the State of New South Wales to vary conditions of an extended supervision order ("ESO") in relation to the defendant, Greg Ceissman, pursuant to s 31(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act"). 2. On 13 April 2018, Rothman J made an interim supervision order ("ISO") in respect of the defendant, which commenced on 15 April 2018. On 20 April 2018, the defendant was arrested and charged with four counts of failing to comply with the ISO, together with one count of resisting police. On 21 April 2018, the Local Court formally refused the defendant bail on those charges, and bail continued to be refused for those and certain other like charges until it was granted by Rothman J on 28 June 2018. 3. On 18 July 2018, Rothman J made an ESO in respect of the defendant pursuant to s 25(1)(a) of the Act: State of New South Wales v Ceissman (No 2) [2018] NSWSC 1237. That order was expressed to commence on 18 July 2018 for a period of two years. 4. On 20 August 2018, the defendant was charged with four breaches of his ESO conditions. On 31 October 2018, the defendant was sentenced to 11 months imprisonment with a non-parole period of 8 months, backdated to commence on 20 April 2018. 5. On 20 June 2019, the defendant was charged with possessing a mobile phone in a correctional centre. On 26 July 2019, he was sentenced to 27 months' imprisonment with a non-parole period of 18 months for the four breaches of the ESO with which he had been charged on 20 August 2018. 6. On 20 November 2019, the defendant was sentenced to 14 months' imprisonment without a non-parole period in respect of the mobile phone offence. The defendant is due to be released from custody on Monday 19 April 2021, which is four days hence. 7. The application seeks to vary certain conditions of the ESO ordered by Rothman J. The defendant does not oppose most of the proposed varied conditions. Following further discussions between the parties, there remain only two conditions that are in dispute. 8. The first proposed variation that is in dispute seeks to replace condition 8. Condition 8 currently reads: "The defendant must truthfully answer questions from his EO about where he is, where he is going and what he is doing." I note that "EO" denotes "Enforcement Officer". 1. The plaintiff has tendered documentary evidence and brief oral evidence in support of its application. The documentary and oral evidence includes evidence of Detective Acting Sergeant Marco Buttigieg, the documentary evidence being in the form of an affidavit sworn on 1 April 2021, supplemented by brief oral evidence before me. The proposed varied condition is in the following terms. "The defendant must truthfully answer questions from an EO for the purposes of administering this order about: (a) where he is or has been; (b) where he is going or was going; (c) who he is with or was with; and (d) what he is doing or was doing." 1. The affidavit of Detective Buttigieg includes the following paragraph: "I am aware that on 11 February 2021 the defendant was captured on a gaol phone call speaking with his mother about the limitations of the non association conditions in their current format, showing an understanding of how to circumvent the current vetting process in relation to associates." 1. The non-association condition, of course, was a reference to the previous drafted condition 8. In elaboration on that paragraph, Detective Buttigieg explained in oral evidence that a reading of a transcript of the phone call, which was recorded by officers of the Department of Corrective Services, suggested that the defendant was conscious of the limitation in the previous drafted version as to what he had been doing, as well as to who he had been with. 2. The variation is opposed principally on the basis that the defendant has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder which, it is submitted, has an impact on his capacity to recall events. It is submitted that if the defendant was subject to the varied terms of condition 8, he would be exposed to the possibility that, when required to provide information as to where he had been, where he was going, who he was with or what he was doing, he may not be able to fully recall detail, in spite of his best efforts. It is submitted that this may therefore expose the defendant to prosecution for a breach of conditions on an unreasonable basis. 3. The plaintiff submitted in response that the proposed varied terms of the condition would require the defendant to answer the questions "truthfully", which would protect him in the circumstance that he inaccurately recalls his past movements or contacts, provided he was doing his best to answer such questions. 4. I should note that there is a second aspect of the varied terms that was not incorporated previously; that is, an obligation that the defendant report to his EO, when required, as to "who he is with or was with". 5. I have come to the view that the condition, as proposed, is a reasonable one, and in so concluding, I have in mind that the reference to answers being truthful does provide a degree of protection to the defendant, if it transpires that he is questioned about past contacts or past movements and inadvertently fails to recall relevant information. 6. It would be appropriate for the EO or other authorities, when questioning the defendant about his past activities as permitted by the varied form of condition 8, to do so within a reasonable timeframe. In other words, if there is a basis for making those inquiries, it would be appropriate that they be made of the defendant at the earliest convenience, so as to minimise any possibility of the defendant inadvertently not providing a reliable answer. 7. The dispute between the parties also involves inserting proposed condition 9A, which does not eliminate any previous condition. It reads: "The defendant must comply with rules or bylaws (or both) of any approved accommodation for the defendant." 1. The ESO ordered by Rothman J predated the Community Protection Legislation Amendment Act 2018 (NSW), which introduced s 29(1A) to the Act. That subsection provides that certain conditions are to be included in an ISO or ESO unless the Supreme Court orders otherwise, one of which is s 29(1A)(f), which effectively requires the eligible offender, "to comply with rules or by-laws (or both) of any approved accommodation for the offender". 2. The effect of the proposed variation is to align the ESO conditions with that current requirement in the Act. The legislative provision provides, as a preface, the following: "Unless the Supreme Court orders differently (and without limiting the conditions the Court may impose under subsection (1)), an extended supervision order or interim supervision order must include conditions requiring the eligible offender –" and thereafter, one goes to subs (f). 1. The variation is sought by the plaintiff on the basis that, if the defendant was to breach rules or bylaws of his place of accommodation, a difficulty would be created for the EO in locating suitable accommodation for the defendant, thus jeopardising the conditions on which the defendant would be at liberty. Particularly, if the defendant was to deliberately breach such rules or bylaws, the position of the EO and other authorities could potentially be made impossible in attempting to locate suitable accommodation for the defendant. 2. It is submitted by the defendant that, firstly, a breach of a condition of an EO is a serious matter, which may involve a sentence of imprisonment, which, of course, is what has transpired over the last three years. Further, that rules or bylaws of a place of accommodation may be substantively of little consequence to the general compliance of the defendant with an ESO and, therefore, a breach of a non-consequential rule or bylaw attached to his place of accommodation may unreasonably expose him to a penalty of imprisonment. 3. It is appropriate, in my view, to have regard to what is proposed for the defendant in terms of his accommodation. Evidence was given by Detective Acting Sergeant Buttigieg to the effect that the authorities have had considerable difficulty in locating a suitable place of accommodation for the defendant. Ideally, a place of accommodation with his family would have been appropriate and, having regard to the evidence which has been tendered by the plaintiff, it seems that at one point, it was thought that the defendant might be appropriately accommodated with his mother in Redfern. 4. However, most recently, a view has been formed and a decision taken by the authorities to the effect that residency with either parent is not suitable, and the defendant is reluctant to subject other members of his family to frequent visits by the authorities, which would be an unavoidable consequence of them providing him with accommodation. 5. The authorities have recently located a suitable place of accommodation in the short term, from Monday 19 April 2021, which is in an establishment styled as a private hotel on Elizabeth Street, opposite Central Station in Surry Hills. Detective Acting Sergeant Buttigieg has given evidence to the effect that the private hotel is regarded as suitable accommodation for a period of 48 hours, which I take to be until Tuesday night or Wednesday morning next week. 6. Suitable accommodation beyond that point has not yet been identified and, therefore, the nature of the accommodation where the defendant might be residing thereafter is at this stage unknown. 7. Therefore, in considering the appropriateness of proposed condition 9A, I take into account the fact that the type of accommodation at which the defendant will be resident is not yet known. It is submitted on his behalf by his counsel that condition 3, which reads: "The defendant must follow all reasonable directions by his EO", affords the authorities sufficient flexibility to require the defendant to observe those rules or bylaws associated with his place of residence, which are sufficiently important to oblige strict compliance by the defendant. 1. In my view, that is an appropriate mechanism which, on the one hand, protects the defendant from being prosecuted for non-compliance with rules or bylaws associated with his place of residence which are of no great consequence to any risk posed by him to the community, but on the other hand, provides the plaintiff with sufficient clarity and an opportunity of identifying important rules and bylaws to ensure that the community is given a sufficient degree of protection. Therefore, I decline the application by the plaintiff to introduce condition 9A. 2. At the beginning of the hearing this morning, there were further conditions in dispute, being proposed conditions 23A and 24A. Condition 23A is as follows: "The defendant must inform his EO of the identity of any person with whom he does, or is likely to, regularly associate." 1. Condition 24A is in the following terms: "The defendant must not, without prior approval of his EO, knowingly or intentionally contact, attempt to communicate with, or otherwise associate or affiliate with any person he knows or should know is: (a) held in custody; (b) subject to a control order under Part 5.3 of the Criminal Code; (c) on parole; or (d) otherwise subject to a supervision order under the Terrorism (High Risk Offenders) Act 2017, or the Crimes (High Risk Offenders) Act 2006." 1. Those proposed varied conditions were opposed on the basis that the applicant presently has a number of family members who are either in custody or on parole. If it were the case that, hypothetically, such a member of his family were to contact him, perhaps by telephone or in person, then he would automatically be in breach of the conditions as presently composed. 2. Further, it may well be that such contact would not present any concern to the authorities in terms of the purpose of such conditions in protecting the community, if those members of his family did not represent any aggravation of any threat of a terrorist act. 3. The parties have drafted an addendum to proposed condition 24A, which seeks to address the concern expressed by the defendant in a way that is acceptable to the plaintiff, and I commend the parties for having done so. The addendum reads as follows: "The defendant can provide to his EO at any time a list of family members who he knows to either be held in custody or who are on parole who should be granted approval, unless there are good reasons for not doing so." 1. The remaining proposed variations are not the subject of opposition by the defendant. I accept that they are appropriate, and I will allow the ESO to be varied accordingly. That being so, I make the following orders: 1. Pursuant to s 31(1) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"), vary the extended supervision order made by the Court on 18 July 2018 by replacing the schedule to that order with the amended conditions set out in Schedule A ("the amended ESO conditions"); 2. Pursuant to s 11 of the Act, direct the defendant to comply with the amended ESO conditions; 3. Order that access to the Court's file in this proceeding be restricted, such that access would be permitted to a non-party only with the leave of a judge of the Court and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. ********** Amended Schedule of Conditions (92195, pdf) 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: 20 April 2021