State of New South Wales v Gavin [2022] NSWSC 84

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Gavin [2022] NSWSC 84 Hearing dates: 31 January 2022 Date of orders: 10 February 2022 Decision date: 10 February 2022 Jurisdiction: Common Law Before: Harrison J Decision: Summons filed 8 December 2021 dismissed with costs Catchwords: TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s 13 Criminal Code (Cth), ss 100.1, 101.1, 101.6, 102.3, 102.4, 102.6, 102.7 Terrorism (High Risk Offenders) Act 2017, ss 4, 10, 20, 21, 23, 24, 25, 27 Cases Cited: Hardy v State of New South Wales [2021] NSWCA 338 State of New South Wales v Alam [2020] NSWSC 295 State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Joseph Emmanuel Gavin (Defendant) Representation: Counsel: J Emmett SC with R McEwen (Plaintiff)

Solicitors: Crown Solicitor's Office (Plaintiff) File Number(s): 2021/348609 Publication restriction: Nil

Judgment 1. HIS HONOUR: By its summons filed on 8 December 2021, the State of New South Wales seeks, among other things, an order pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 appointing a psychiatrist and a psychologist to examine Mr Gavin and to furnish reports about him. The State seeks an associated order that Mr Gavin be subject to an interim supervision order pending a final hearing at which the State will ask that any interim order that is made be extended for a further period of three years. 2. Mr Gavin is presently serving a sentence of imprisonment for one count of stalk/intimidate with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. For that offence, to which he pleaded guilty in the Penrith Local Court on 11 August 2021, he was sentenced to a term of imprisonment of 15 months commencing on 14 November 2020. He currently lives in the community, having been released on parole at the expiration of his 9-month non-parole period on 13 August 2021. His sentence is due to expire on 13 February 2022. 3. The scope of the preliminary inquiry that I am required to conduct directs attention to two questions: 1. first, whether I am satisfied of the eligibility requirements in ss 20(a), (b) and (c) of the Act, and in particular whether Mr Gavin is an "eligible offender" by reason of being a "convicted NSW terrorism activity offender" within the meaning of s 10(1) of the Act; 2. secondly, whether the matters alleged in the supporting documentation would, if proved, allow me to be satisfied to a high degree of probability that Mr Gavin poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision (respectively ss 27(b) and 20(d) of the Act. 1. Section 10 of the Act defines an eligible offender in the following relevant terms: (1) In this Act, an eligible offender is a "convicted NSW terrorism activity offender" if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the "offender's offence") and any of the following apply in respect of the offender: (a) the offender has at any time been subject to a control order, (b) the offender has at any time been a member of a terrorist organisation, (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). 1. Section 20 of the Act provides as follows: The Supreme Court may make an order for the supervision in the community of an eligible offender (called an "extended supervision order") if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. 1. Section 4 of the Act defines "serious terrorism offence" as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment. Section 100.1(1) of the Code defines a terrorist act as follows: 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. Section 100.1(2) of the Code defines the elements of the definition of a terrorist act to include the following: (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; … 1. The State contends that the offence committed by Mr Gavin contrary to s 13 of the Crimes (Domestic and Personal Violence) Act for which he is currently serving a sentence (the index offence) qualifies Mr Gavin as a convicted NSW terrorism activity offender within the meaning of s 10(1) of the Terrorism (High Risk Offenders) Act. Briefly considered, the index offence arose out of the following facts. 2. On 29 May 2020, Mr Gavin was arrested and refused bail on charges of resist/hinder police in the execution of duty, possess or use a prohibited weapon without a permit, stalk/intimidate with intent to cause fear of physical harm and use carriage service to threaten serious harm. 3. On 16 May 2020, Mr Gavin had posted a video on the "Free Man" YouTube channel entitled "Victorian Bank stealing a paid for property … Making a family with a new born homless [sic]". The video runs for just under 54 minutes. At 18 minutes and 25 seconds, Mr Gavin relates a story concerning a time when he was out running attempting to visit his father in hospital. He expresses the view that 5G allows law enforcement authorities to exercise control over people from a distance. Having expressed that view, he says: "If I catch the cunt, I will literally, I will gut the fucking area commander of Penrith, I will find the cunt and I will gut you Tracy Ford or Tracy Stone, or whatever the fuck you call yourself, if you guys fucking zap me one more time with your free masonic shit hole that's operating four houses down. I'm going to pull all the clips up in the next four days." 1. Tracey Ford was the Chief Inspector attached to the Penrith Police Area Command. Mr Gavin had known her since high school. 2. Although this was the portion of the video that formed the basis of the index offences, it contains several other statements as follows: (a) "Right, and me thinking it had already gone through cause I was fucking depressed like fucking dealing with a fucking filthy fucking ex, if I ever catch her I'm gonna cut her hands off, cut her tongue off and pluck her eyes out. She can never see her son again and never write telling me tales or any fucking - write me fucking lies." (b) "This is the corrections fucking officer, these are fucking Jews, they're not even a little bit greedy, they want to take the whole fucking lot. And they're gonna kill you so they can rape your fucking kids and you fucking deserve it if you don't fucking wake up. I'm sick of- if every cunt doesn't share this fucking clip, right, I- I'm fucking over youse. I'm just gonna sign up with these fucking Jews and I'm gonna fucking light the fucking candle that lights the fucking flame that- I'm gonna flip the switch on youse cause you're all that fucking stupid." (c) "Well I can fucking learn chemistry in about a year on fucking YouTube cause I'm getting it off fucking Nobel priest- ah prize laureate fucking professors t- t- teaching physics and chemistry. Right, but that's- I don't need to fucking know it unless I want to blow something up and I already know all the lists of fucking chemicals I need to fucking move a rock or fucking deal with someone." (d) "And y- I mean, mate touch paper you can make fucking um detonators aluminium powder and foil and fucking, I won't say what else but, it- this shit's fucking- you've just got to watch a couple of chemistry, chemistry clips and you can have some fun." (e) "I can think of a thousand better and faster ways to a, wipe out a population and b, ah I don't want to say too much um, eh, and you'd be surprised, I can, I can literally blow up a block, and I mean 400 square meters with a battery, I won't say what type of battery, um, about 10 litres of water and um, some wires, um a switch, a spark plug and- it's not fucking hard. And the way they're going about it, they get us to design our own- technology is the weapon that will be used to wipe out the gentile. The, the non-merchant." 1. The index offence did not involve Mr Gavin in the actual physical commission of any of the acts that he threatened to perform. In accordance with the relevant definitions, however, a terrorist act includes a threat of action. 2. In addition to the conduct that formed the basis of the index offence, Mr Gavin posted a series of videos of himself on YouTube. Senior counsel for the State in these proceedings has helpfully extracted significant portions of this material as an annexure to his written submissions. The State relies upon this material as relevant to my inquiry as material falling within s 10(2) of the Terrorism (High Risk Offenders) Act. That material is extensive and is as follows: No. Date Title Statement(s) 1 19 Oct 2019 PENRITH-POLICE-ASSAULT-MAN.JUSTICE-MUST-BE-SEEN-TO-BE-DONE.THIS-CLIP-WAS-REMOVEDFROM-MY CHANNEL "[i]f you wanna take out 15 coppers, you go get a fire extinguisher fill it with 80% diesel, 20% petrol, you pressurise it like the guys who do pressure cleaning they fill it up with detergent. You get an old fire extinguisher, you empty the shit out, and put it in and walk behind these fuckers, you spray em and put a piece of. Litterlay There literally if people use their brains you can take out a whole police stations with a bit of gas. There's so many ways to take these cunts out without even fucking being here." 2 31 Jan 2020 Fake doccumentation their property. Lex Mercatoria..(1) "you think it's ending here – there's a fucking war about to start and you're about to find out" 3 25 Feb 2020 Corporation Kill "Capacitors, we used to blow them up in the Army. We'd get a capacitor the size of your hand and we'd blow it up. We'd stick it in 3 phase power… basically if you had wrapped it in aluminium and a bit of iron fillings and put some phosphorous in there and some condies crystals and then put that in a vessel…you've got a hand grenade" 4 2 Mar 2020 giddy up "I mean, how fucking stupid are Australians?, where is the pitchforks, you don't even need guns, you need bolt action rifles and you have ten of them, ten to one, then you fire ten rounds at the one target, doesn't matter if you have an AR15, if there is 10 people firing – 10 rounds per millisecond then you get up close and you use spears and Molotov cocktails' you've got the numbers" "take the power source out, that is why all of this anti-terrorism stuff, when it was going around 10 years ago, they had people like me go and secure all the bolts on the bottom of the towers ….. that is how you take out 5G, you take out the power box that supplies the power to the tower..." 5 4 Mar 2020 Never ending story "the only way you can take out a fucking tower, is to punch a hole in the side of those boxes and light them up, you waste your time trying to take out the tower unless you have a directed energy weapon – take out the box or the power source out of it – because they are going to nuke you and nuke your kids"