Supreme Court New South Wales Medium Neutral Citation: State of NSW v Ceissman [2018] NSWSC 508 Hearing dates: 12 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Jurisdiction: Common Law Before: Rothman J Decision: 1. Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017: (a) one qualified psychiatrist and one registered psychologist, as agreed between the parties, are appointed to conduct separate examinations of the defendant. (b) the defendant is directed to attend the examination referred to in order 1(a) (c) the experts referred to in order 1(a) are to furnish their reports to the Supreme Court on the results of those examinations by Friday, 4 May 2018. 2. Pursuant to s 27 of the Terrorism (High Risk Offenders) Act 2017 the defendant is made the subject of an Interim Supervision Order commencing on 15 April 2018, for a period of 28 days. 3. Pursuant to s 29 of the Terrorism (High Risk Offenders) Act 2017 the defendant is directed to comply with the conditions set out in the "Interim Supervision Order Schedule of Conditions" for the period of the Interim Supervision Order. 4. Access to the Court's file by a non-party in respect of any document shall not be granted, without the prior notification to the parties of the non-party's application for access and without the leave of a Justice of the Court. 5. Liberty to restore on three (3) days' notice. Catchwords: HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act – Interim Supervision Order – discussion of principles in statute – order granted Legislation Cited: Bail Act 2013 Crimes (High Risk Offenders) Act 2006 Criminal Code Act 1995 (Cth), pt 5.3 Terrorism (High Risk Offenders) Act 2017 Cases Cited: Cornwell v Attorney General of NSW [2007] NSWCA 374 Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of NSW v Pacey [2015] NSWSC 1983 State of NSW v Thomas (Preliminary) [2011] NSWSC 118 State of NSW v Thurston [2018] NSWSC 421 Category: Procedural and other rulings Parties: State of NSW (Plaintiff) Greg Ceissman (Defendant) Representation: Counsel: P Neil SC / I Fraser (Plaintiff) M Johnston SC / A Cook (Defendant) Solicitors: Crown Solicitors (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/107952 Judgment 1. HIS HONOUR: By Summons filed 6 April 2018 the State of NSW seeks an Extended Supervision Order ("ESO") against the defendant, Greg Ceissman. The order is sought under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the THRO Act"). Before an ESO is made, the State of NSW seeks an Interim Supervision Order ("ISO") to operate from 15 April 2018 for a period of 28 days. 2. The State of NSW also seeks the appointment of two experts (each of whom would be either a psychiatrist or a psychologist) to report on the defendant, upon which reports they would seek to rely at the final hearing. Other ancillary orders are sought. 3. I have not included all of Mr Ceissman's criminal record or the terms of his various periods of imprisonment in these reasons. The current and index sentence was imposed on 7 August 2014 for 3.5 years commencing 16 October 2014: the non-parole period concluding on 15 October 2016 and the head sentence concluding 15 April 2018. Because of other relevant dates referred to herein (and to avoid confusion or the appearance of error), I should point out that Mr Ceissman was also imprisoned for a Police Pursuit commencing 28 April 2012, the non-parole period expiring 27 April 2013 and the head sentence concluding 27 October 2013. 4. There were District Court appeals from some of the sentences imposed, but, except for just over one month, Mr Ceissman was imprisoned full-time from 29 April 2012 until, relevantly, 15 April 2018. Some of that period (between 20 December 2013 and 17 October 2014) was the balance of a term of just over 9 months imposed on 23 January 2014 and for which he had been granted parole. A parole order was issued on 6 November 2013, but revoked and he was imprisoned from 20 December 2013. Before 6 November 2013, Mr Ceissman had been imprisoned full-time since 29 April 2012. 5. An ISO (or an ESO) can only be made at a point in time where a defendant is in custody for a NSW indictable offence or the subject of a previous ISO or ESO. The custody currently being served by the defendant expires on 15 April 2018. As a consequence, the orders sought on 6 April 2018 were required to be dealt with and finalised prior to 15 April 2018, or not at all. 6. The first directions hearing for the matter was before the Court on 10 April 2018 and the hearing of the application for an ISO occurred on 12 April 2018. Orders were made on 13 April 2018 and reasons reserved. These are the reasons. 7. According to Counsel, this is the first application for an ISO (or an ESO) under the THRO Act. As such, the Court is required to deal with the principles that are applicable to the making of an order. It is necessary, first, to examine the legislative framework. Terrorism (High Risk Offender) Act 2017 ("THRO Act") 1. There are obvious similarities between the provisions of the THRO Act and the provisions of the Crimes (High Risk Offenders) Act 2006 ("CHRO Act"), which provides for the State of NSW to be able to make applications for ISOs, ESOs and for Continuing Detention Orders in regards to high risk violent and sexual offenders. Despite the similarities, there are significant differences between the statutes, particularly to the statutory gateway to the making of orders. 2. In the case of orders issued under the CHRO Act, the initial focus of the Court is on index offences relating to serious violence offences or serious sexual offences and the risk of offending of a similar kind. In the case of orders under the THRO Act, the initial focus is significantly different. It is necessary to recite some of the provisions of the THRO Act. 3. The THRO Act must be read as a whole and construed in the context of the whole statute in order to achieve the purposes of the statute and to achieve harmonious goals: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. Nevertheless, it is the objective intention of the Legislature, obtained from the words of the statute, that is the focus in ascertaining the purpose and goals of the Legislature. 4. The objects of the THRO Act are divided into a primary object, which is to provide for extended supervision and continuing detention of certain offenders who pose an unacceptable risk of committing a serious terrorism offence, and another object, which is to encourage such offenders to undertake rehabilitation. 5. An eligible offender must be 18 years of age or older and serving a sentence of imprisonment for a New South Wales indictable offence or otherwise the subject of a continuing supervision or detention order after serving imprisonment for such an offence. Certain terrorism offenders are also eligible offenders, but that definition (see s 8 of the THRO Act) is irrelevant for present purposes. 6. Section 19 of the THRO Act defines "current custody or supervision" as the custody or supervision to which the offender is subject at the time that an application for orders is made. 7. Section 20 of the THRO Act grants to the Supreme Court the jurisdiction to make an ESO against eligible offenders in circumstances where there is an unacceptable risk. The term "unacceptable risk" is not defined in the THRO Act (nor is it defined in the CHRO Act). The term has been the subject of discussion in a variety of judgments in the context of the CHRO Act (and also in relation to the Bail Act 2013 (NSW)). 8. The terms of s 20 of the THRO Act should be recited: "[20] Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk 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: (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 21 of the THRO Act clarifies that the Court does not need to determine that the risk to which s 20 of the THRO Act refers is "more likely than not". 2. The procedures for the application for an ISO are contained in s 24 of the THRO Act and, most relevantly, the provisions of subss 24(5), 24(6) and 24(7) relate to the making of an ISO or its ancillary orders. The terms of those sections are as follows: "[24] Pre-trial procedures … (5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the eligible offender to attend those examinations. (6) Without limiting subsection (5) (a), the Supreme Court may also make orders appointing any other relevant experts to furnish reports to the Supreme Court in respect of the eligible offender on specified matters. (7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application." 1. As can be seen from the foregoing, in order to issue ancillary orders to an ISO, the Court must be satisfied that the "matters alleged" in the supporting documentation "would, if proved, justify" the making of an ESO. In those circumstances the Court is required to appoint experts as described in the subsection. The Court has discretion as to whether other expert reports may be ordered under s 24(6) of the THRO Act. 2. The jurisdiction and conditions associated with the making of an ISO, itself, are expressly covered by the terms of s 27 of the THRO Act, which is in the following terms: "[27] Interim supervision order The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court: (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. The terms of s 27 of the THRO Act confirm that the test for the making of an ISO is whether the "matters alleged in the supporting documentation would, if proved, justify the making of" an ESO. The terms of an ISO are dealt with in the THRO Act and, in particular, by s 28. 2. The terms of s 27 of the THRO Act refer the Court back to the test for the making of an ESO, which is governed by the provisions of s 25 of the THRO Act. Section 25(1) grants to the Court the power to make an ESO or to dismiss the application for the ESO. 3. The Court is required, in making that determination, to give priority to the safety of the community as the paramount consideration: see State of NSW v Thomas (Preliminary) [2011] NSWSC 118, per RA Hulme J. While the comments of RA Hulme J relate specifically to the objects of the CHRO Act, a reading of the entire THRO Act gives rise to the same conclusion. 4. Other factors must also be considered and the terms of s 25 of the THRO Act are as follows: "[25] Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (h) the likelihood that the offender will comply with the obligations of an extended supervision order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole, or (ii) subject to a control order, or (iii) subject to an earlier extended supervision order or interim supervision order, or (iv) subject to any other order of a court, (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence." 1. As with the CHRO Act, there are factors that are described in s 25(3) that would be necessarily unavailable at the time that an ISO is first sought. In particular, for example, the reports of qualified psychiatrists are generally unavailable when the proceedings first come before the Court because one of the orders sought and obtained at preliminary hearing (assuming the Court is of a mind and is satisfied to make the orders) is for the examination by such experts to be conducted and the reports filed. 2. Nevertheless the Court is required, in determining whether to grant an ISO, to consider whether an ESO would be made if the matters alleged in the supporting documentation of the application were to be proved at the final hearing. 3. It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. 4. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant. 5. A risk that is insignificant is not an unacceptable risk, and therefore not a risk in my view, with which the Court should be concerned: see State of NSW v Pacey [2015] NSWSC 1983, per Harrison J who said: "A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." 1. With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term "insignificant" instead of "very low". 2. The Court is required to look at risks that are not insignificant and which, on the material before the Court, if proved, would result in serious harm for which the Court ought prescribe precautions. The term "insignificant" is used not in its meaning as "not important", but, rather, as meaning "not fanciful" or "not ephemeral". 3. To utilise two deliberately extreme examples: if the risk were the detonation of a nuclear missile involving the death of many, only a very slight probability may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a high probability of its manifestation may not render the risk unacceptable. 4. Once that equation has been evaluated, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk. The high degree of probability does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk: Cornwell v Attorney General of NSW [2007] NSWCA 374 at [21], in regard to which one must now consider the terms of s 21 of the THRO Act (and 5D of the CHRO, although there are differences in wording that may be significant). The task is an evaluative one: State of NSW v Thurston [2018] NSWSC 421, per Garling J quoting Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57. 5. The unacceptable risk, as has been made clear, is the unacceptable risk of committing a serious terrorism offence and, in that respect, the "harm, hazard or loss" to which earlier reference has been made is qualified to become "harm, hazard or loss" occasioned by the commission of a serious terrorism offence. 6. A "serious terrorism offence" is defined in section 4 of the THRO Act by reference to Pt 5.3 of the Criminal Code Act 1995 (Cth) ("the Criminal Code"). It refers to an offence under that Part of the Criminal Code for which the maximum penalty is 7 years imprisonment or more: see, for example, s 101.1 of the Criminal Code and the definition of a "terrorist act" in s 100.1 of the Criminal Code. 7. One aspect that was the subject of discussion with Counsel is the utilisation of the word "would" in the terms of s 27 (and, incidentally, in the terms of ss 24(5) and 24(7) of the THRO Act). Counsel for the defendant compared the use of the word "would" with the possible use of the word "could". The word "would" is also utilised in ss 10A and 18A of CHRO Act. 8. Nevertheless, the Legislature's use of the word "would" seems to import the discretionary elements that are contained in s 25(1) of the THRO Act into the determination necessary for the making of an ISO. 9. For present purposes, the Court accepts that the effect of an ISO (or an ESO) on the defendant is not a matter that is relevant to the determination of whether there is an unacceptable risk of the commission of a relevant offence: State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280; Lynn v State of NSW supra at [127]. In Lynn, the Court of Appeal said: "The concept of "risk" clearly involves a risk to the community; although the qualifier "unacceptable" could be read in an extended sense as meaning deemed unacceptable by the Court, it is still the composite phrase which must be understood as referring to a risk to the community. A finding of unacceptable risk provides the basis for imposing control on the offender. In its ordinary meaning, involving risk to the community, there is no rationale for taking into account consequences of the finding of unacceptable risk, being consequences flowing to the offender as a result of the imposition of controls. That conclusion is supported by the list of mandatory considerations to be taken into account in determining whether to make such an order, set out in s 9(3), all of which focus on the risk posed by the offender." 1. Nevertheless, the draconian effect on a defendant of a Continuing Detention Order ("CDO") (and, depending upon the conditions, an ISO), is a factor relevant to the jurisdiction of the Court to make an order under s 25. 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. 2. There are three other aspects of the legislative scheme that require comment. First, the THRO Act defines "terrorism intelligence" as information relating to actual or suspected terrorism activity, the disclosure of which would reasonably be expected: to affect adversely the prevention of acts of terrorism; prejudice criminal investigations; enable the discovery or disclosure of confidential sources of information relevant to law enforcement; and endanger life or physical safety. The term "terrorist act" has the same meaning as it does in Pt 5.3 of the Criminal Code. 3. Part 5.3 of the Criminal Code consists of Div 101 through to Div 106. The definition section, s 100 of Pt 5.3 of the Criminal Code, defines "terrorist act" in the following terms: "'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. … (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 defendant submits that, apart from other failings in the material before the Court from the State of New South Wales, the State of New South Wales has not disclosed that the alleged acts of the defendant have been made with the intention of advancing a political, religious or ideological cause, nor with the intention of coercing, influencing or intimidating a government (federal, state or foreign) or intimidating the public or a section of the public. 2. Lastly, s 101.1 of the Criminal Code renders it an offence for a person to engage in a terrorist act for which the penalty is life imprisonment. Facts or Matters Alleged 1. The plaintiff, the State of New South Wales, relies upon three Affidavits of Jamie McLaughlan affirmed 7 April 2018, 9 April 2018 and 9 April 2018 and Exhibits JM1, JM2 and JM3 respectively. As important as the material is in those Affidavits, the facts necessary for the conclusions in these proceedings can be more succinctly outlined. 2. The defendant was sentenced to a term of imprisonment by the District Court on 7 August 2015 for an offence committed on 12 December 2013. The offence was not a terrorism offence. 3. The offence for which the defendant was sentenced was taking and driving a conveyance without the consent of the owner. As stated, the District Court imposed a non-parole period of 2 years, concluding 15 October 2016 as part of a head sentence of 3 years and 6 months. Parole was not granted. 4. The facts upon which the State of New South Wales relies relate to conduct of the defendant during the course of his imprisonment. Shortly after the commencement of his then prison sentence the defendant, who is of Aboriginal descent, converted to Islam and has continued as an adherent of Islam since approximately May 2012. 5. In or about July 2015, the defendant commented to a Corrections Officer that he wanted to travel to the Middle East and, in particular, Saudi Arabia to "study religion" and, on one view of another conversation, expressed an intention to travel to Syria. The latter aspect was at a later time denied by the defendant. 6. The defendant also informed the author of a risk assessment report that is before the Court that he wished to learn Arabic so that he could read the Quran and that he wanted to attend the "Hajj", the Islamic pilgrimage to Mecca. With the exception of the reference to Syria, to which later consideration will be given, none of the foregoing of itself discloses a predisposition or intention toward a terrorist act. The Quran is written in Arabic and, as the Court understands it, any translation of the Quran is not considered "genuine". Further, attending the Hajj is the fifth pillar of a devout Muslim and says nothing about any predisposition or intention relating to terrorism. 7. Later statements tend to suggest more practical priorities such as purchasing a house, a licence to drive and employment and in a later interview the defendant denied any intention to travel overseas and, it seems, ever having had such an intention. 8. At the end of 2014 and the beginning of 2015, a Human Source, who was a fellow inmate of the defendant, described conduct of the defendant in a number of different ways. First, the defendant, it is said, was vocal in supporting other Muslim inmates at the prison and in particular in relation to any reaction or statement relating to the siege incident at Martin Place in the Lindt Cafe. The defendant was described by the Human Source as becoming "more radical in his beliefs lately". 9. A number of conversations occurred in relation to the defendant's conversion to Islam, and described by the Human Source as becoming more radical. However, that is a conclusion the basis for which is unspecified. Comments were made by the defendant, to the effect that Corrective Services officers were ignorant about the Islamic religion. 10. The Court is prepared to accept that many Corrective Service Officers would be ignorant about Islam as would be many in the Australian population, or at least those that are not Islamic. 11. To one person, the defendant deprecated that which occurred at the Sydney siege by saying he did not "believe in that terrorist rubbish" and told the Source that he "had to be seen to be supporting the Muslim Brothers". 12. In May 2015, the defendant had a conversation with the Human Source, in which the defendant said that he was "planning an attack on Marrickville Police station. Part of the planned attack involves the use of explosives. The [inmate] then said he mentioned a bomb. The [inmate] stated that [the defendant] is also planning to behead a police officer and then shoot as many police as possible during the attack." 13. In early 2018 a Police statement was provided by the inmate relating to the conversation in May 2015 and certain other details are contained in the later witness statement, including that: the defendant had converted to Islam and prayed daily; possessed the Quran and other Islamic books; did not care for Kooris anymore and the Muslims were now like his family; was attempting to obtain an A4 sized black flag with Arabic writing on it (or some writing which I am prepared to infer would be Arabic). The inmate also identified another Muslim inmate with whom the defendant was said to be associating and who was, it was said, expressing extremist views. 14. The inmate's witness statement described a specific conversation the day earlier than the conversation to which earlier reference has been made. This conversation occurred in the context in which the inmate suggested the defendant had expressed radical or extremist views about Islam on a handful of prior occasions. On that date, according to the inmate, the defendant said: "When he got out of custody he was going to travel to the Middle East and would go to visit Mecca. [The defendant] said the other Muslim inmates from Lithgow would look after him and pay the trip and flights. [The defendant] said when he was over there he was going to do some training and return to Sydney. When [the defendant] was back in Sydney he was going to attack Marrickville Police station, Bankstown Shopping Centre and park in Bankstown." 1. Apparently, after the question was asked by the inmate, the defendant explained that the training he wanted to undertake was "how to use weapons and knives". The training would take several months and he would be put in some small battles and exposed to the use of weapons. 2. The inmate's statement describes the conversation, albeit again in the third person, in the following way: "When [the defendant] said attack he told me there would be a brawl at a park in Bankstown which would act as a distraction. [The defendant] said he would attend Marrickville Police station with a firearm and shoot whoever was at the front counter. [The defendant] said this was the first attack … at Marrickville and the second if he didn't get caught was at Bankstown Shopping Centre. I asked [the defendant] what he was doing at the Shopping Centre; he stalled and was dropping hints about explosives. [The defendant] said it all depended on how many people were with him. I asked [the defendant] if he would attack the Shopping Centre if he knew his sister and nephew might be in there. [The defendant] said he would and at least they would go to heaven. [The defendant] said if he was shot by the Police or whatever happened at least he would get '72 virgins'. I tried to explain to him through the reading I have done that there are no 72 virgins." 1. The inmate who provided this statement is not Muslim. The relevance of that fact goes to whether the defendant was merely making statements of matters to people he thought would want to hear those statements. 2. The information available to the State of New South Wales also refers to the defendant mentioning contact with an extremist who had recently been imprisoned. There is objective evidence of contact between the defendant and a person who, on intelligence information, was a former member of the Brothers for Life and was considered to hold "suspected religious extremist views". That person, when in prison, possessed Islamic State material in his cell and associated with "known extremists". 3. There are conversations with others, in essence, to the opposite effect. The defendant built up a relationship with the Muslim Chaplain from Corrective Services, who gave evidence before the Court. The Chaplain expressed the view that the defendant was proud of his faith, that it has helped him turn his life around and that he disavowed any extremist views and expressed a deep dislike for extremist groups such as Islamic State. 4. In his oral evidence, the Chaplain made clear that, because of his known position on Islamic philosophy, extremists in the prison system did not seek him out or speak to him. The fact that the defendant built a relationship with the Chaplain was, in itself, according to the Chaplain, an indication of a lack of extremist views. 5. The State of New South Wales also relies on risk assessment reports, some of the material in which has already been described. At this stage of the proceedings, risk assessment of a person who has never been charged with, or convicted of, terrorist offences must, necessarily, be a conclusion that the Court is, in some respects, in a better position to undertake than the author of the reports. 6. Other than that aspect, the Assessment must be in relation to static testing of a person who has never committed any extremist violence. Nevertheless, the author of the report describes the defendant as a person with a low-medium range of risk for extremist violence. The factors identified which resulted in that conclusion were: 1. that he had identified a specific target (a reference to Marrickville Police Station, police officers and/or Bankstown); 2. personal contact with extremists (to the extent this is valid, it is recited above); 3. planning, preparation of violent acts (seemingly a repeat of the identification of a particular attack and the method of attack referred to in (i) above); 4. the defendant's susceptibility to influence or indoctrination, a reference to descriptions of the defendant as immature and one who is easily led by antisocial peers in the community and in custody. 1. Necessarily, and thankfully, the number of terrorist acts committed in Australia is extremely small. In that remark, terrorist act is described broadly, as it is in the Criminal Code, and includes threats of attack or the planning and organisation of attacks. 2. Notwithstanding the foregoing, the number of Australians participating in Islamic State fighting overseas, particularly in Syria during the past number of years (and, to a lesser extent, in Afghanistan) is, by ratio to the population in Australia, significant. However, it must be said, that the percentage of Muslims who could be described as extremist, or expressing extremist views reflecting Islamism, is an extraordinarily small percentage of the Muslim population in Australia. 3. The population expressing extremist views is a lesser percentage of the Muslim population than violent criminals are of the Australian population. The fact, if it be the fact, that a person converts to Islam has little or no bearing, in itself, on the probability of the person committing a terrorist act. 4. If one were to compare the number of "terrorists" amongst the Muslim population in Australia, as a percentage, with the number of murderers amongst the Australian population as a percentage, the number of murderers in Australia is significantly greater, as a percentage. Further, as far as the Court is aware, the percentage of white supremacists who are extremist is far greater than the percentage of Muslims who are extremist. 5. As earlier stated, the mere fact that the defendant converted to Islam, a relatively easy process, is not a significant factor in the determination of whether there is an unacceptable risk. The only relevance of the fact is that if there be evidence of extremist views related to that conversion, it makes the extremist views a little less unbelievable. If conversion to Islam is accompanied by an extremist version of Islamism or Wahabbism, then, like motive in a murder, it renders the extremism a little more believable. Consideration 1. The Court has already referred to the legislative context in which this application for an ISO is being pursued. The Court is required to examine the "matters alleged" in the documentation supporting the application and determine whether, if those matters alleged were proved, they would justify the making of an ESO. What are the matters alleged? 2. The matters alleged centre on the statements made by the defendant to a fellow inmate and, on another occasion, to an officer of Corrective Services. If those statements were made and if they were intended to be taken seriously, they would, at least arguably, amount to the commission of an offence under s 101.1 of the Criminal Code, namely, that the defendant has engaged "in a terrorist act" 3. The Court has already recited the definition of a "terrorist act", which includes a threat made with the intention of advancing a political, religious or ideological cause with the intention of intimidating the public or a section of the public. It is, it seems, at least arguable, that the action, namely the making of threats, if done, would need to be done with the intention of intimidating the public or a section thereof, and the action threatened is sufficient to bring the threat within the meaning of the term "terrorist act". The making of such a threat, therefore, arguably falls within the offence created by s 101.1 of the Criminal Code. 4. The allegation that the State of New South Wales makes, on the evidence of a prison informer mostly, is that the defendant has expressed a threat to kill police officers at Marrickville Police Station, behead police officers and explode an improvised explosive device (IED) at Bankstown Shopping Centre. 5. That allegation, if proved, would result in horrific loss and damage and, so long as the probability of manifestation was not insignificant, would require little probability to render the risk unacceptable. 6. The defendant submits that there are significant reasons for disbelieving the prison informer. The unreliability of prison informers is notorious. The Legislature has required warnings in relation to the evidence of prison informers in criminal proceedings under s 165 of the Evidence Act 1995 (NSW). 7. Further, as the defendant points out in his submissions, there is no evidence of the defendant having ever been involved in serious violent offences or terrorism offences (unless one includes the threat made and recorded by the prison informer as a terrorist act). 8. In my view, the believability or reliability of the prison informer does not affect the "matters alleged". If that evidence or material were proved, namely that the defendant holds views consistent with a mass killing of the kind to which the prison informer's statement refers, then the matters alleged, if proved, would give rise to the making of an ESO. 9. Because the Court is dealing with this as an interim application, this is not the time to determine whether the allegation would be proved in any final assessment of the evidence. There is some indication that the defendant tends to tell people that which suits him at the time and, no doubt, the psychological assessment will play some part in any assessment of the true intentions of the defendant. 10. It must be said, however, that if the defendant were truly minded to commit a terrorist act of the kind that the prison informant says he mentioned, then it is unlikely that he would disclose that fact to persons in authority, including psychiatrists. 11. As to the defendant's submission that the State of NSW has not proved the intention to coerce or influence by intimidation a government or intimidation of the public, paragraph (c) of the definition must be additional to paragraph (b). However, ordinarily, once action, not described in (3) of the definition, is performed as part of, or in furtherance of, a broader political, religious or ideological course, then the more probable inference is that it is performed with such intention. Such is a matter alleged here: see, for example, the reference to ISIS flag. 12. I have examined the conditions and deleted those conditions that, in my view, do not ameliorate the risk of offending of the kind to which these allegations relate. Those conditions have been published. 13. One further matter needs to be mentioned. This application was made at the very last moment by the State of New South Wales. The defendant, understandably, complains that there has been insufficient time for the obtaining of full and appropriate instructions in relation to these matters, including the effect, if any, of the conditions that I have ordered. For that reason I have provided that the defendant (and the State of New South Wales) the capacity to have the matter relisted on three days' notice. 14. The State of New South Wales has urged that the Court should take into account the urgency of the matter in the making of these orders in a way that would persuade the Court to make the orders so that a full and complete analysis of the material can later be undertaken and so that the State has not foregone its capacity to obtain orders under the THRO Act. I reject that submission. 15. The tightness of the timeframe is a matter of the making of the State of New South Wales. It is not appropriate that there should be any encouragement that a last-minute application by the State of New South Wales, in circumstances which are not emergent, or allow the State some greater capacity to obtain orders than would otherwise be the case. 16. For the foregoing reasons, on 13 April 2018, the Court issued orders, being an ISO and the conditions published on that date. ********** Amendments 06 June 2018 - 1. Typographical errors; 2. Explanation of terms of imprisonment. 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: 06 June 2018