State of New South Wales v Mustapha [2022] NSWSC 87

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Mustapha [2022] NSWSC 87 Hearing dates: 12 and 26 November 2021 Date of orders: 6 December 2021 Decision date: 09 February 2022 Jurisdiction: Common Law Before: Walton J Decision: (1) An order pursuant to ss. 24(5) and 38(5) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"): (a) appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the defendant to attend those examinations. (2) Pursuant to ss 41 and 42(1) of the Act the defendant be subject to an Interim Detention Order for a period of 28 days commencing from 7 December 2021. Catchwords: CIVIL – High Risk Terrorism Offender – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim relief – application for appointment of a psychiatrist and psychologist – application for interim detention order – alternative application for interim supervision order – validity of application pre-conditions in ss 23(3)(b) and 37(4)(b) – preliminary hearing principles – whether weigh probative value of supporting documentation – relevance of defendant's evidence – statutory scheme – meaning of serious terrorism offence – nature of offences under Pt 5.3 of the Criminal Code – principles regarding unacceptable risk – threats – ss 25(3) and 39(3) factors – reports of any other assessment by a qualified psychiatrist or registered psychologist – reports prepared by Corrective Services NSW or the Police as to the extent to which the offender can reasonably and practicably be managed in the community – any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate – willingness and level of the offender's participation in treatment or rehabilitation and initiatives – any beliefs or commitments of the offender that support engaging or participating in terrorism activities – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant poses an unacceptable risk of committing a serious terrorism offence – safety of the community – discretion to make an interim detention order or interim supervision order – interim supervision order insufficient to manage risks – interim detention order made – orders made for appointment of experts Legislation Cited: Crimes (Administration of Sentences) Act 1993 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Criminal Code 1995 (Cth) Evidence Act 1995 (NSW) Terrorism (High Risk Offenders) Regulation 2018 (NSW) Terrorism (High Risk) Offenders) Act 2017 (NSW) Cases Cited: Attorney General for NSW v McGuire (Preliminary) [2021] NSWSC 1222 Attorney General for NSW v Tillman [2007] NSWCA 119 Attorney General for NSW v Winter [2007] NSWSC 611 City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Cornwall v Attorney General for NSW [2007] NSWCA 374 Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Kamm v State of NSW (No 4) (2017) 345 ALR 669; [2017] NSWCA 189 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Minister for Home Affairs v Pender [2021] NSWSC 1644 Osman v State Parole Authority & the Attorney General of NSW [2020] NSWSC 1392 State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128 State of New South Wales v Church [2021] NSWSC 246 State of New South Wales v Currie (Final) [2021] NSWSC 676 State of New South Wales v Dickson (Final) [2020] NSWSC 100 State of New South Wales v Manners [2008] NSWSC 1242 State of NSW v Alam [2020] NSWSC 295 State of NSW v Avakian (Preliminary) [2021] NSWSC 245 State of NSW v Barez (Preliminary) [2019] NSWSC 1589 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Cheema [2020] NSWSC 876 State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008; (2018) 273 A Crim R 238 State of NSW v Elzamtur [2019] NSWSC 186 State of NSW v Fayad (Preliminary) [2020] NSWSC 1681 State of NSW v Fisk [2013] NSWSC 364 State of NSW v French (Final) [2017] NSWSC 1475 State of NSW v Golding (Preliminary) [2018] NSWSC 1041 State of NSW v Haidar [2020] NSWSC 38 State of NSW v Hampton [2018] NSWSC 360 State of NSW v Ibrahim (Final) [2021] NSWSC 793 State of NSW v Love (Preliminary) [2019] NSWSC 1660 State of NSW v Lynn [2013] NSWSC 1346 State of NSW v Lynn (Preliminary) [2020] NSWSC 1066 State of NSW v Manners [2008] NSWSC 1242 State of NSW v McGee (Preliminary) [2019] NSWSC 53 State of NSW v Naaman (No 2) [2018] NSWCA 328 State of NSW v Naaman (No 2) [2018] NSWSC 1329 State of NSW v Reay [2014] NSWSC 1362 State of NSW v Sancar [2016] NSWSC 867 State of NSW v Sturgeon [2019] NSWSC 559 State of NSW v Thurston [2017] NSWSC 1760 State of NSW v Wilson (Preliminary) [2017] NSWSC 1367 The State of NSW v Sharpe [2017] NSWSC 469 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Mejid Mustapha (Defendant) Representation: Counsel: P McGuire SC with S McGee / C Melis (Plaintiff) D Buchanan SC with E Kerkyasharian (Defendant)