Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 Hearing dates: 4 May 2018 Date of orders: 08 May 2018 Decision date: 05 July 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) An order pursuant to s 24(5) of the THRO 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) An order: (a) pursuant to s 27 of the THRO Act, that the defendant be subject to an Interim Supervision Order commencing on 8 May 2018; (b) pursuant to s 28(1) of the THRO Act, that the Interim Supervision Order be for a period of 28 days (noting that, pursuant to s 28(6) of the THRO Act, such period is to be suspended during any period in which the defendant is in lawful custody); (c) pursuant to s 29 of the THRO Act, directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this Order (attached). (3) An order restricting access to the Court's file in this proceeding 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. (4) Liberty to apply on three (3) days' notice. Catchwords: HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act – Interim Supervision Order – analysis of facts alleged – order granted Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s (13)(1) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 Crimes (High Risk Offenders) Act 2006 Crimes Act 1900, s 60(3A) Criminal Code Act 1995 (Cth) 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 State of New South Wales v Ceissman [2018] NSWSC 508 State of NSW v Pacey [2015] NSWSC 1983 State of NSW v Thurston [2018] NSWSC 421 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Ahmad Elomar (Defendant) Attorney General of New South Wales (Applicant on Motion) Representation: Counsel: B Hughes SC / T Phillips (Plaintiff) G James QC (Defendant) P Singleton (Applicant on Motion) Solicitors: Crown Solicitor's Office (Plaintiff) Lawyers Corp (Defendant) Crown Solicitor's Office (Applicant on Motion) File Number(s): 2018/121186 Judgment 1. HIS HONOUR: By Summons filed 17 April 2018, the State of New South Wales moved for an Extended Supervision Order ("ESO") under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("THRO Act"). Prior to the final hearing for an ESO, the State of New South Wales sought an Interim Supervision Order ("ISO"). 2. As a result of the preconditions to the making of an ISO or ESO (or applying for it) significant and tight time-frame limitations were imposed on the parties and, in particular, the Court. The Summons came on for hearing before the Court, as presently constituted, on 4 May 2018. On 8 May 2018, the Court made orders that an ISO issue, binding the defendant and imposing upon him conditions set out in a schedule. Reasons were reserved. These are the reasons. 3. Prior to the hearing of the matter on 4 May 2018, the Court, as presently constituted, had issued reasons in State of New South Wales v Ceissman [2018] NSWSC 508, upon which each of the parties relied. In Ceissman, the Court analysed the provisions of the THRO Act and the context within which an ISO can be made. I do not intend to repeat the analysis in these reasons for judgment, but rely upon the analysis of the THRO Act and its interpretation, as if the same was set out herein. 4. One matter requires further clarification. As was made clear in the Ceissman, supra, the test under s 27 of the THRO Act for the making of an ISO is, at least in part, that the State of New South Wales is required to prove "that the matters alleged in the supporting documentation would, if proved, justify the making of an" ESO. 5. During the course of the submissions in these proceedings, Senior Counsel representing Mr Elomar likened proceedings for an ISO to committal proceedings before the Local Court for an indictable offence. Senior Counsel conceded that the two were not identical. 6. Nevertheless, that analysis and its effect on the construction of the THRO Act and the necessary conditions for the making of an ISO needs to be explained. Senior Counsel, in making the analogy between ISO proceedings and committal proceedings, submitted that "matters alleged" required prima facie proof or, alternatively, required the production of material that could be proved. 7. I reject the submission that "prima facie" proof is required of the matters alleged. Nevertheless, I should make it clear that the term "matters alleged" does not refer to a conclusion. It refers to matters of fact that, if proved, would be open to lead to a particular conclusion. 8. To use an example may better illustrate the distinction. If an application for an ISO and/or ESO were to allege that a person was "a terrorist", that would not, in my view, of itself, satisfy the condition prescribed by s 27(b) of the THRO Act. Whether or not the defendant in any such hypothetical proceeding was "a terrorist" is a conclusion that must be based upon facts that are adduced. 9. In such a circumstance, 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. That certainly was the situation that arose in Ceissman. The distinction sought to be drawn by Senior Counsel for the defendant in these proceedings, was an unnecessary distinction in Ceissman, was not raised in the Ceissman proceedings. Nor was it the subject of comment by the Court in the reasons for judgment in Ceissman. 10. As a consequence, the "matters alleged" must be facts or based on facts that are, firstly, capable of being proved; and, secondly, such that, if proved, they would satisfy the Court that an ESO should or would be made. 11. It is unnecessary to discuss the construction of the THRO Act or the principles upon which an ISO will issue any more than the foregoing. In light of the fact that the current proceedings concern an ISO, and not an ESO, the Court, as presently constituted, reiterates in relation to the construction of the Act and the principles on the issuing of an ISO, that which was said by the Court in Ceissman, supra. 12. The Court made the following orders on 8 May 2018: 1. An order pursuant to s 24(5) of the THRO Act: 1. 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 2. directing the defendant to attend those examinations. 1. An order: 1. pursuant to s 27 of the THRO Act, that the defendant be subject to an Interim Supervision Order commencing on 8 May 2018; 2. pursuant to s 28(1) of the THRO Act, that the Interim Supervision Order be for a period of 28 days (noting that, pursuant to s 28(6) of the THRO Act, such period is to be suspended during any period in which the defendant is in lawful custody); 3. pursuant to s 29 of the THRO Act, directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this Order (attached). 1. An order restricting access to the Court's file in this proceeding 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. 2. Liberty to apply on three (3) days' notice. Facts and Matters Alleged 1. The State of New South Wales relies upon a number of affidavits. It is unnecessary to repeat the details of each of those affidavits. Some of the matters deal with the statutory preconditions to the making of an order. 2. I make it clear that the statutory preconditions, being the timing of the application, the fact that the defendant was in prison at the time of the application and other such technical issues, have been satisfied. 3. I turn then to the factual aspects of the allegations. The defendant is 34 years of age and a former professional boxer. He has a criminal history involving offences of violence and was, at the time of the application, serving a sentence of imprisonment for the reckless wounding of a police officer acting in execution of duty during a public disorder, contrary to s 60(3A) of the Crimes Act 1900. Hereinafter the aforesaid reckless wounding may be referred to as the "index offence". 4. It is necessary to recite the circumstances surrounding select incidents in the defendant's history, upon which the State of New South Wales relies. 5. The first incident is the involvement of the defendant in a violent incident in Bankstown on or about 28 June 2012. The incident has a number of relevant aspects. It involved the defendant and a number of other men associated with an Islamic bookstore in Bankstown confronting and attacking, on the street, individuals associated with the neighboring juice bar. 6. The incident is reported to have occurred in circumstances where the owner of the bookstore had been accusing individuals associated with the juice bar of being supporters of Bashar Al Assad (the President of Syria) and had, allegedly, demanded that the owner of the juice bar donate money to Syria, through the bookstore, to prove that he was not an Assad supporter. 7. The owner of the juice bar refused the "request". At or about 5.00pm on 28 June 2012, an unknown male was observed by the owner of the juice bar to walk out of the bookstore, brandishing a firearm, which he pointed in the direction of the owner of the juice bar, motioning a firing action three times, before returning into the bookstore. 8. At about 8.00pm on 28 June 2012, a group of males, which included the defendant, exited the bookshop and went toward the juice bar. As the men inside the juice bar started to walk away, those who had come from inside the bookstore started to throw punches at them. The defendant kicked and punched one of the men as he lay on the ground. He then approached the owner of the juice bar and grabbed him by the throat and threatened to burn down his shop. 9. An unknown male in the defendant's company was observed to have a black pistol tucked into his pants and to have said, at the time of the attack: "We are going to slaughter your necks, all of you, one at a time". 10. It is reported that the next day the defendant threw an object similar to a firecracker into the juice store. These events led the juice bar owner to sell his business. The details in the fact sheet for these offences, including a reference to a website, suggest that the incident may have been part of an organised effort to remove Shia and Alawi business owners from the Bankstown area. 11. The defendant pleaded guilty to the offences of affray and common assault (two counts) in respect of the incident and was sentenced on 3 April 2013. The sentence was a total effective sentence of 12 months' imprisonment commencing 1 January 2013 until 31 December 2013, with a non-parole period of 8 months, expiring 30 September 2013. 12. On 11 July 2014 the defendant was convicted of two counts of common assault relating to an incident that had occurred on 4 August 2012. That offence related to circumstances where the defendant, together with his brother Mohammed Mahmoud Elomar, (hereinafter "Mahmoud" or "Mahmoud Elomar") and a cousin or close friend, Khaled Sharrouf, were involved in a violent incident directed at the members of the Dib family, one of whom was the defendant's and Mahmoud's former brother-in-law (having divorced their sister). The divorce caused tension between the families. 13. Earlier in the day, the defendant had issued threats to the Dib family. During the incident the defendant had punched and struck the Dib brothers, one of whom had cerebral palsy, to the head and body. The defendant was sentenced to a total effective sentence of 7 months' imprisonment, commencing 9 November 2015 and expiring on 8 June 2016, as a fixed term. 14. The evidence before the Court in these proceedings includes psychiatric reports performed for the purposes of the sentencing proceedings in the index offences. Dr Olav Nielssen, in a report dated 20 January 2013, expressed the opinion that the defendant was unfit for trial and had previously expressed the opinion that there was a link between the defendant's condition and his reported behaviour during the protest in the Sydney CBD. 15. In a later report, dated 30 March 2013, Dr Bruce Westmore concluded that the defendant had "very significant cognitive difficulties" affecting his executive functioning, including his capacity to understand the consequences of his actions; the forming of judgements; planning; and impulse control. Each of Dr Nielssen and Dr Westmore referred to the defendant's frontal lobe injuries, which are relevant to the foregoing opinions expressed by them. 16. Further, it is necessary to recite the circumstances of the index offence, in relation to these proceedings. 17. An unlawful assembly was held in Sydney CBD to protest against a video depicting the Prophet Mohammed in a manner that was said to be insulting to the Prophet and to Muslims. During the course of the assembly the defendant struck a police officer in the head with a wooden pole. 18. The sentencing remarks of Judge Woodburne DCJ, who sentenced the defendant on 19 June 2014, described the attack as "unprovoked". Despite the suggestion that there was some provocation from the police, the sentencing judge came to the view that there was no provocative conduct by the police and that the use of OC spray, which was deployed, was not a provocative aspect to the offending, in part, because the offender had exhibited aggression before the spray was utilised. Further, the sentencing judge concluded that the defendant was not "casually caught up in the violence" but was "at the forefront of the aggression and deliberately acting as he did". 19. The District Court sentenced the defendant to a head sentence of 4 years' and 8 months' imprisonment, with a non-parole period of 2 years' and 6 months' imprisonment, commencing 9 September 2013 and expiring on 8 March 2016, in the case of the non-parole period, and on 8 May 2018, in the case of the head sentence. At the date of the ISO hearing, the defendant's parole had been revoked because of a breach of the parole condition to be of good behaviour. 20. The incident which constituted the breach was the offender's commission of the offence of stalk or intimidate with intent to cause fear of physical or mental harm, contrary to s (13)(1) of the Crimes (Domestic and Personal Violence) Act 2007. 21. The intimidation offence was committed on 3 May 2017 at an under 16's soccer match. Seemingly as a result of something that occurred at the youth soccer match, the defendant threatened to "put holes in" or "kill" a supporter of the opposing team. 22. At the time of the offence the defendant was residing with his parents, his wife and their children in south-west Sydney. He was, shortly before the incident, under directions to wear an electronic monitoring device and certain other conditions relating to points of departure. While, the electronic monitoring condition had been removed after a period of appropriate conduct by the defendant, it had been reinstated prior to the commission of the so-called intimidation offence. 23. The defendant was convicted in the Local Court and sentenced to a term of imprisonment of 10 months' which was wholly concurrent with the index offence. The defendant has lodged an "all grounds appeal" in relation to that conviction. The all grounds appeal was listed for hearing in the District Court on 14 June 2018. Notwithstanding the appeal, at the time of the orders, the offence constituted an allegation of intimidation which, if proved, would, together with other material, form a basis for the issuing of an ISO. 24. The State of New South Wales also relies on a preliminary risk assessment report, which assesses the overall risk of the defendant as being in the Medium-High range for extremist violence, politically motivated violence, and/or serious terrorism offences. 25. The preliminary report was performed without any examination of the defendant and without interviewing him. It was performed on the documents provided to the risk assessor. As a consequence, its reliability is not unquestionable. Nevertheless, the assessment of the risk of the defendant is a matter alleged and is capable of being proved. As a consequence, the matter alleged, if proved, would be a factor, together with others, that might satisfy the Court to issue an ESO. 26. The other matters upon which the State of New South Wales relies relate to the defendant's conduct in the course of his incarceration. 27. The defendant was involved in a number of incidents which amounted to institutional misconduct, including unlawful possession of a mobile phone and unlawful use of prison phones. These included an attempt to set up a three- way phone call and speaking in a language other than English, which is, in prison, impermissible. 28. The more problematic conduct was an incident that took place in the yard at Goulburn Correctional Centre on or about 20 February 2015. In a yard search several newspaper clippings were found that commented on Islamic State activities. These were found in a yard bag identified as belonging to an inmate Milad Al-Ahmadzai. 29. At the time that the bag was identified and the clippings discovered, Al- Ahmadzai reportedly shouted "Takbir", raising his arm skyward with his index finger pointed upwards. The foregoing is a known salute, usually associated with ISIS. At the time that this occurred other inmates responded "Allah Akbar", in unison. The defendant is reported to have been involved in leading this response. 30. There are a number of comments made by the defendant during the course of programs while in prison. One of those programs (PRISM) is a custodial program designed to target risk factors associated with radicalisation and violent extremism. In the course of the initial interview for the program, the defendant made a number of comments. 31. He explained that he had no knowledge of the protest relating to the index offence, and went along because his younger brother and cousin suggested it. He was "bored" and "hanging out". He sought to explain that the assault on the police officer occurred only after OC spray was deployed. 32. The notes of psychologist, Steven Barracosa, in relation to that interview deal with the defendant's mental health, and the possibility of a history of PTSD as a result of his experience when in prison in Lebanon for alleged terrorism offences or planning. These offences were related to and associated with his brother. 33. The report also deals with the cognitive functioning issues to which the Court has earlier referred. Apparently, the defendant described himself as "gullible" and having experienced learning difficulties since during his childhood. 34. The report then discusses Mr Elomar's family associations. His younger brother and cousin both fled Australia to fight for IS, but are now presumed dead as a result of the conflict. The defendant's uncle (his father's brother) is a convicted terrorist, who is currently incarcerated. 35. His brother, Mahmoud Elomar, was one of the group that encouraged him to attend the protest in which the index offences occurred. The defendant defended and/or supported his brother in relation to the media attention that has focused on him. 36. The defendant also suggested that his brother left Australia to complete "humanitarian" work and sought to explain his brother's transition from aid worker to foreign fighter, if it occurred. The defendant openly admitted that he would have left Australia with his brother, had he not been incarcerated. 37. The foregoing explanation seems, on its face, either disingenuous or emphasises the gullibility of the defendant and his intellectual dysfunction. 38. The next relative involved in extremist conduct is his older cousin, Khaled Sharrouf, whom he did not meet until Mr Sharrouf was released from custody, having served time for National Security offences. Again, the defendant minimised the interaction of Mr Sharrouf with IS. The defendant did condemn the photos of Mr Sharrouf which included Mr Sharrouf's children holding severed heads as having "gone too far". However, he also explained away the images on the basis, that they, like similar images of which his brother is the subject, were "most likely jokes" (according to the report). 39. Mohammed Elomar (an uncle with the same or similar name as his brother) remains in prison for National Security offences. Again, the defendant minimised his uncle's involvement in planning or preparing for a terrorist act, suggesting that he had been simply misunderstood and unfairly convicted. 40. The report notes that the defendant is a devout Muslim, who denies having been brought up with a significantly religious view of life. He reported to the psychologist that he had become more connected with his Islamic faith following his brief incarceration in Lebanon and that his faith, according to the psychologist, "was enhanced further by his wife and his eventual incarceration on his current offences". 41. Apparently, the defendant has become more devout and more extreme as he has been in prison. He now prays five times per day and hopes to live a strict Muslim life. In his brief explanation of his interpretation of Islam, he told the psychologist that "Jihad was clearly permitted as mapped out in the Qur'an". 42. A PRISM progress note dated 1 June 2016 recorded details of an interview between the defendant and a prison religious coordinator about the defendant's religious beliefs. The note referred to the defendant's trip to Mecca for the Hajj (the Islamic pilgrimage). Of itself, and even together with most other matters, this would be of no consequence as attendance and performance of the Hajj is one of the pillars of devout Islam. He attended the Hajj with a group from the Lebanese Muslim Association. 43. The defendant described this as a "life changing event". Thereafter he became religious, very strict and tried to impose his religious views on his family. He made reference to his recently deceased brother Mahmoud, who had died fighting in Syria, as not being particularly religious. 44. He gave a truncated history of his religious associations, which concluded with a statement that he attended the Regents Park Musslah and had been following Sheik Abu Suliman, who is, on the material for the Court, a major figure with Jabhat Al Nusra (an extremist organisation). 45. After a falling out with Sheik Abu Suliman, the defendant started attending talks at Al Rissalah in Bankstown, having taught boxing at that location. He then followed Sheik Abu Adnan and Moustapha Majzoub (the latter died in Syria apparently doing humanitarian work a few years ago). That is how he became involved with Al Rissalah bookstore and the men that prayed there. 46. Khaled Sharrouf, to which the Court has earlier referred, commenced attending that mosque after his release from prison. The defendant's father had warned him to stay away from Mr Sharrouf, which he now says was the correct approach (according to the record of the progress note). 47. Following the defendant's release to parole in August 2016, he refused an offer to participate further in the PRISM program or with PRISM psychologists. 48. I have already referred to the psychiatric reports and their findings. However, it is appropriate to deal with some results from neuropsychological testing. 49. Prof Stephen Woods, who reported on the test results for the purpose of the District Court proceedings, stated that there was a consensus between each of the psychiatrists (Dr Bruce Westmore, Dr Olav Nielssen, Dr Adrian Keller and Dr Dudley O'Sullivan) that: the defendant suffers from significantly impaired cognitive/intellectual functioning; the defendant has suffered a number of serious head injuries; and it is probable that the various traumatic injuries suffered by the defendant aggravated his pre-existing developmentally impaired level of cognitive functioning. 50. Prof Woods' conclusions were that the defendant had revealed cognitive functioning, including Executive Functioning, to be in the bottom 2% of the general population. Prof Woods considered the defendant's reaction to certain questioning to be "childlike" and concluded that his level of intellectual functioning, together with other matters, suggest that "he is at greatly increased risk of manipulation, possibly exploitation, by other inmates while in a correctional centre … [including] the influence of criminal and religious extremists. 51. As pointed out by Counsel on behalf of the defendant, it is difficult for the defendant to be criticised for associating with people, who are either deceased or overseas. Moreover, his association with a number of relatives is, as one would expect, because they are relatives. 52. There are other associates of concern, according to the evidence before the Court. They include Omar Baladjam, with whom he corresponds and with whom, it seems, there is a friendship. Mr Baladjam was arrested as part of the Pendennis Operation and pleaded to four counts concerned with the preparation for a terrorist attack. He was sentenced to a term of imprisonment of 18 years and 8 months. [Redacted]. 53. Another associate was also part of the Pendennis Operation. That person was Mazen Touma. He was sentenced to 14 years with a non-parole period of 10 years and 6 months for terrorism related offences. [Redacted] 54. Another associate to which the Crown points is Mr Mirsad Mulahalilovic. He too was part of the Pendennis Operation, and was convicted and sentenced to 4 years' and 8 months' imprisonment. Mr Mulahalilovic visited the defendant at Parklea. 55. The next issue of note is the defendant's frequenting of the Al Rissalah bookshop in Bankstown. [Redacted]. 56. [Redacted]. 57. The next person of concern, according to the State of New South Wales, is the defendant's sister-in-law, Fatima Elomar (the first wife of his brother Mahmoud). She was convicted on 1 July 2016 of an offence, being to receive or solicit money or goods with the intention of supporting or promoting the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). For that offence she was sentenced to a term of imprisonment of 2 years and 3 months, which will expire on 30 September 2018, but the term of imprisonment was suspended on condition that she entered into a recognizance to be of good behaviour. She visited the defendant while he was in custody. 58. On 6 February 2017, a direction was given to the defendant not to associate with Mohamed Hawchar after attending Mr Hawchar's residence for a family gathering. Mr Hawchar has convictions for possession of a prohibited pistol, ammunition, and the failure to ensure the safekeeping of a firearm. 59. Next in the Crown submissions relating to persons of concern with whom the defendant is associating, is Mr Boksmati. The Crown, in its written submissions, recites a NSW Police Intelligence Report, dated 24 August 2017. The Report refers to intelligence entries linking the defendant to individuals who adhere to an extreme Islamic Sunni sect within the New South Wales community. It refers to the maintenance of familial and social ties to individuals with known links to proscribed terrorist organisations, Islamic State and Al Qaeda. The notes disclosed that the defendant is a supporter of the terrorist organisation, Islamic State. 60. The NSW Police Intelligence Report notes that while on parole, the defendant maintained his previous associations and continued to associate with persons that are of National Security interests. He has been stopped by police in the company of individuals, Billal Elzamtar, on two occasions, and Mohammed Boksmati on three occasions. 61. Apparently, the defendant maintains that he has a friendship with Mr Elzamtar. Each of Elzamtar and Boksmati espouse an extremist ideology, according to the NSW Police Intelligence Report. He has attended shopping malls in the company of Mr Boksmati and in one instance travelled to the shopping mall in a vehicle registered to a known criminal, Omar Hamide, for whom the police hold reports relating to firearms and Middle Eastern Organised Crime Intelligence. 62. Lastly, in terms of persons with whom the defendant has some association and is raised by the Crown, is Mr Omar Ammouche with whom the defendant has had a number of telephone conversations. Mr Ammouche has an extensive criminal history including convictions for firearm offences. 63. [Redacted]. 64. [Redacted]. 65. The adherence to extremist views is confirmed by a number of statements that have been attributed to the defendant. Those statements include criticism of Muslims who celebrate New Year; criticism of UNICEF as a "Christian organisation", trying to corrupt children in Syria; reference to those persons who opposed ISIS/ISIL as "Kuffar" (infidels); and a reference to organisations in the Muslim world that want democracy being not truly Mujahideen. 66. The defendant also criticised a fellow Muslim who had a picture of Osama Bin Laden and Saddam Hussein sleeping together as making fun of "Sheik Osama", a reference to, and an expression of support for, Osama Bin Laden. 67. Further confirmation of the defendant's extreme religious/political views (albeit not in relation to a terrorist act) is found in comments by the defendant that support the marriage of a Sheik to a 12 year old girl, being permissible in Islam and criticising a person, who is Muslim, speaking out against the practice as an "apostate". [Redacted]. 68. The State of New South Wales has referred in their written submissions to each of the foregoing matters. In so referring, the plaintiff has taken the Court to the source material upon which the proposition is based. 69. Some of the material may, on its own, do no more than suggest extremist religious views, without an associated terrorism risk. Nevertheless, all of them together allege facts that, if proved, would warrant the grant of an ISO, as a result of an unacceptable risk. 70. During the course of the proceedings, as earlier stated, the defendant submits that associations with family members are not relevant, because they are innocent. That may be. But the association goes well beyond family members. 71. As the material stands at the moment, the State of New South Wales has proved an association with persons of extremist ideology. The statements that have been made by the defendant seem to confirm the extremist views with which the identified persons have been associated. Conclusion 1. The common law system and the rule of law, since the 17th century, has been and is predicated on the basic premise that a person may not be subject to punishment or imprisonment, unless found "guilty" of a contravention of the law. Nowadays, penalties may also be imposed for civil and statutory wrongs. 2. The THRO Act, along with the Crimes (High Risk Offenders) Act 2006, implements a form of preventative detention or control. The statutes provide the Courts with the jurisdiction to assess the risk of further criminal behaviour by an offender; to assess whether that risk is unacceptable; and to determine whether, and, if so, what, steps should be taken to ameliorate the risk. No party suggests that the legislation is invalid or impermissibly grants the jurisdiction. 3. These are not sentencing proceedings, or a final hearing which requires determination of whether certain matters have been proved. The facts (or matters) alleged must be capable of proof. At this stage, if the matters are capable of proof, the Court must assume they have been. The Court is required to assess on the factual allegations made, whether they warrant the making of an appropriate order. 4. Much of the defence material has dealt with the moral culpability of the defendant. I accept that he has low intelligence and diminished capacity arising from frontal lobe trauma. These are relevant matters, diminishing his culpability for his conduct. 5. However, these same issues disclosed that the defendant is easily manipulated; vulnerable; aggressive; and lacking in the kind of executive functioning that acts as a control on conduct that is wrong or the capacity to determine that it is wrong. 6. The index offence, alone, discloses that difficulty. The Court has before it a defendant who can be easily manipulated by others to perform aggressive acts; who has defended and supported Osama Bin Laden; who is prepared to engage in conduct that has intimidated others who do not share his religious or political belief system; and who "envies" his brother who, in his view has died as a martyr and, as a consequence, gone to heaven. 7. Without an order, it is highly likely he will associate with extremists and continue to be easily manipulated. As I stated in Ceissman, supra, the assessment of unacceptable risk involved a matrix in which the Court must assess the likelihood that a risk will manifest and the consequences of such a risk manifesting: see further State of NSW v Pacey [2015] NSWSC 1983; Cornwell v Attorney General of NSW [2007] NSWCA 374; State of NSW v Thurston [2018] NSWSC 421, per Garling J quoting Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57. 8. In my view, if not ameliorated by an ISO, the risk is most likely and the consequences, if it manifests, would be grave. 9. It is necessary to refer to the definition of terrorist act within the Criminal Code 1995 (Cth) and the definition of serious terrorism offence in s 4 of the THRO Act. It is an offence to engage in a terrorist act, contrary to s 101.1 of the Criminal Code. At least arguably, the assault on the police officer in the context of a protest of the kind then underway during the index offence, and certainly a number of the comments made by the defendant supporting the use of violence to overthrow governments that do not implement Sharia Law would fall within the definition of a terrorist act and an offence under s 101.1 of the Criminal Code. 10. The foregoing reference to an offence is not a necessary finding for the purposes of an ISO. It is sufficient that the context of the entire material that is before the Court, if that material is proved at a final hearing, satisfies the Court, as it does here, that an ESO would issue. 11. In those circumstances I took the view that the State of New South Wales had satisfied the Court of the requirements for the making of an ISO and, in accordance with that, an ISO issued and, at present, continues. 180508 - Schedule - State of NSW v Elomar (18-121186) (86.5 KB, pdf) ********** Amendments 05 July 2018 - No amendment made 05 July 2018 - Schedule Attached 06 July 2018 - Addition of C Palmer as representative for the Plaintiff - omitted in error. 31 July 2018 - 31 July 2018 - Redacted Judgment published. 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: 31 July 2018