Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v White (No 1) [2018] NSWSC 1064 Hearing dates: 9 July 2018 Date of orders: 11 July 2018 Decision date: 11 July 2018 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"), the Court: (a) appoints 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) directs the defendant to attend those examinations. (2) Pursuant to s 27 of the Act, the defendant be subject to an Interim Supervision Order commencing on 17 July 2018; and (3) Pursuant to s 28(1) of the Act, the Interim Supervision Order be for a period of 28 days; and (4) Pursuant to s 29(1) of the Act, direct that the defendant comply with the conditions set out in the Schedule. (5) Access to the Court's file in this proceeding to a non-party is permitted only with the prior leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. Catchwords: HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision order agreed – appointment of experts - orders restricting access to the file without prior leave of the Court – disputed conditions – orders made Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Summary Offences Act 1988 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: Lynn v State of NSW [2016] NSWCA 57 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of NSW v Keith Farringdon [2018] NSWSC 874 Wilde v State of New South Wales [2015] NSWCA 28 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Ricky White (Defendant) Representation: Counsel: P Agius SC with C McGorey (Plaintiff) DC Smith SC with Mr K Avere (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/179655 Publication restriction: Nil Judgment 1. By amended summons filed without objection at the hearing, the State sought interim supervision orders against Mr White under ss 27, 28 and 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW), as well as orders under s 24 appointing a psychiatrist and a psychologist to examine him and furnish reports to the Court and directing him to attend such examinations. Orders restricting access to the file without prior leave of the Court were also sought. 2. Mr White consented to the making of all of these orders, not disputing that in his circumstances, the Court has power to make the orders the State pressed. What was in issue between the parties was thus limited to a small number of the conditions of the interim supervision order which the State proposed. 3. To establish its case the State relied on the affidavit evidence of Detective Inspector Benjamin Hopper; Mr Vincenzo Camporeale, solicitor; Ms Laura Byrne, Unit Leader attached to the Campbelltown Community Corrections office; Detective Sergeant Lukas Sywenkyj and Detective Senior Constable Justin Hewitt. No objection was taken to any of these affidavits and the deponents were not required for cross-examination. Mr White led no evidence. 4. It was common ground that what is in issue must be resolved bearing in mind the approach discussed in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at [53]-[54], there in the context of counterpart provisions of the Crimes (High Risk Offenders) Act 2006 NSW, where it was observed: "53 … Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. 54 As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant." 1. Thus it was accepted in Wilde that while the appellant's serious sex offences had no connection with any association with an outlaw motorcycle gang, there was no error in the imposition of conditions prohibiting the appellant's association with such groups, they addressing relevant risk factors associated with his anti-social behaviours, which limited the prospect of his rehabilitation and re-integration into the community: at [69]-[70]. Interim orders must be made 1. On the evidence I will discuss, I am satisfied that the parties' common position as to the orders which should be made at this stage of these proceedings, must be accepted. 2. This statutory scheme arose for consideration in State of NSW v Ceissman [2018] NSWSC 508. There Rothman J discussed the obvious similarities between the provisions of this scheme and the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). Its objects are specified in s 3 to be: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage these offenders to undertake rehabilitation." 1. The parties' common position reflects that the Terrorism (High Risk Offenders) Act empowers the Court to make extended supervision orders on the State's application under s 22, in the circumstances specified in s 23(1) "in respect of an eligible offender who is in custody or under supervision: (a) while serving a sentence of imprisonment for a NSW indictable offence, or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order." 1. Such an application may not be made until the last 12 months of the offender's current custody or supervision: s 23(2). Section 24 specifies the pre-trial procedures which must be observed. There is no issue that they have been satisfied in this case. 2. An "eligible offender" is defined in s 7 to be a person who is: "(a) 18 years of age or older, and (b) serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence." 1. Mr White falls within the definition of "eligible offender", the evidence establishing that he is aged 27 and presently on parole for an offence under s 195(1)(b) of the Crimes Act 1900 (NSW) of intentionally/recklessly damaging a property by fire, when he set a church at Taree alight, causing an estimated $200,000 damage. The maximum penalty for that offence was 10 years imprisonment. 2. Section 14 specifies that the Act applies to eligible offenders such as Mr White, who is serving a sentence of imprisonment that commenced before the date of assent of the Act in December 2017. It was in December 2016 that Mr White was sentenced to imprisonment for 22 months commencing 18 September 2016, with a non-parole period of one year. He was released to parole in September 2017, with his sentence expiring on 17 July 2018. He also then received a two year s 9 bond for another offence under s 11C of the Summary Offences Act 1988 (NSW), of custody of a knife in a public place. 3. On the evidence it appears that Mr White is also a "convicted New South Wales underlying terrorism offender" under s 9(1), which provides: "(a) 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 (b) the offender's offence is a serious offence, and (c) the offender's offence occurred in a terrorism context." 1. That is because Mr White is currently supervised on detention for an indictable offence which falls within the definition of "serious offence" under s 9(2), his arson having caused serious damage to property (s 9(2)(d)) and because it was committed in "a terrorism context", s 9(3) providing relevantly: "(3) An eligible offender's offence occurred in a terrorism context if: (a) the offender committed the offender's offence with: (i) the intention of advancing a political, religious or ideological cause, and (ii) the intention of ….intimidating the public or a section of the public" 1. The conclusion that Mr White's offending fell within s 9(3) flows from evidence which included, in short, Mr White's admitted longstanding history not only of association with and membership of right wing white supremacist groups, including the Right Wing Resistance of which he claimed in 2016 to hold the position of 2nd in command, but of violent offending in conjunction with his membership of these groups; that before he set fire to the church, Mr White had sent pictures of a burning church with inverted crucifixes to friends; that when he set the church on fire, Mr White was in company with Mr Brereton, who described Mr White as identifying with "Odinism", meaning "there is no other religion than Valhalla"; that Right Wing Resistance flyers were left at the scene of the fire; that Mr White himself discussed during an electronically recorded police interview, in text and Facebook messages and during examinations by experts, matters such as his identification with Odinism, Norse pagan beliefs, neo-Nazism, white supremacist ideology and associated violent offending. 2. Other evidence which sheds relevant light on this evidence includes that in 2014 Mr White and two others had used his mobile phone to make a series of threatening phone calls to the Sydney Jewish Museum, to make anti-Semitic threats of extreme violence and sexual assault against those who would later monitor the messages. He was also convicted of offences for these threats. 3. Further light is shed on Mr White's continuing adherence to his longstanding beliefs and conduct by his Facebook postings in 2018, contrary to his conditions of parole, which included pictures of a hooded person holding a lit Molotov cocktail. 4. On this evidence Mr White would also appear to be "a convicted NSW terrorism activity offender" under s 10(1), given his current supervision on parole for his arson offence and he having in the past "made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts": s 10(1)(c)(i). 5. This flows from the definitions of the terms "terrorism activity" and "terrorist act", which are defined in s 4 to mean: ""terrorism activity" means: (a) any statement or other conduct of any person or group of persons involving advocating support for engaging in any terrorist acts or violent extremism, or (b) any conduct or other activity of any person or group of persons involving planning or preparing for, or engaging in, any terrorist acts or violent extremism "terrorist act" has the same meaning as in Part 5.3 of the Commonwealth Criminal Code. 1. In the Criminal Code Act 1995 (Cth) Schedule "terrorist act" is defined in s 100.1 to mean: "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. Subsections (2) and (3) provide: "(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 Court's power to make an extended supervision order against Mr White, is not in issue, s 20 providing: "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 (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. A "serious terrorism offence" is defined in s 4 to mean an offence against Part 5.3 of the Criminal Code (Cth) for which the maximum penalty is 7 or more years of imprisonment. Engaging in a "terrorist act" is such an offence under s 101.1 of the Code. 2. Mr White thus accepted that: * he fell within s 20(a), as he was on parole for his arson offence; * the State's application had been made in accordance with the applicable provisions: s 20(b); * for the purpose of this application, he falls within the definition of a "terrorist offender" convicted as he has been of an offence falling within the scope of a "convicted NSW terrorism activity offender": s 10(1)(c); * for the preliminary hearing: * the indictable offence was the offence of damage to property by fire contrary to s 195(1)(b) Crimes Act 1900. This offence occurred in Taree on 18 September 2016. The maximum penalty for this offence is imprisonment for a period of 10 years. This is a "NSW indictable offence": s 4(1); * he had made statements or engaged in conduct because of the calls to the Sydney Jewish Museum in 2014. He personally made three calls and allowed his telephone to be used for other calls, and, was present when the other calls were made; * the statements/conduct were advocating support for engaging in a "terrorist act"; * "Advocating" is defined in Division 102.1 of the Criminal Code (Cth) and includes 'counsels promotes encourages or urges'. * "Terrorist act" as defined in s 100.1(1) Criminal Code (Cth) includes: * An action or a threat of action where the action; and * Where the action [or threat thereof] 'causes serious harm that is physical harm to a person': Division 100.1(2)(a) of the Criminal Code (Cth) and * The action is done or threat is made with the intention of advancing a political, religious or ideological cause: Division 100.1(b) and * The action is done or threat is made with the intention of intimidating the public of a section of the public: Division 100.1(1)(c)(ii). * he did not resist a finding that the calls to the Jewish Museum: * Amount to "advocating"; * There was a threat of action; * There was a threat of action to cause serious physical harm; * The action was done to advance a religious or ideological cause; * The action was done to intimidate a section of the public. 1. Further, Mr White accepted that it would also thus be found that he was "a terrorist offender", for the purpose of the preliminary hearing and that it would be concluded that the Court could be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision: s 20(d) 2. Section 21 provides that the Court is not required to determine that the risk of Mr White committing a serious terrorism offence "is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence". Section 25(2) requires that the safety of the community be the Court's paramount consideration and s 25(3) specifies the matters to which the Court must have regard, in addition to other relevant matters, in coming to its determination, to be: "(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. It is s 27 which permits the Court to make an interim supervision order against Mr White, if 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. That requires consideration of the requirements of s 20. 2. There was also no issue between the parties that the unacceptable risk test which thus arises to be considered, like that imposed by the Crimes (High Risk) Offenders Act, requires assessment of the risk to the community: Lynn v State of NSW [2016] NSWCA 57 at [127]. In State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 it was observed at [76] that "the question of adequate supervision will involve a consideration of the likelihood of any offending conduct during the period of supervision, and, if so, its likely gravity". 3. In Ceissman, Rothman J observed at [26]-[30]: "26 … 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. 27 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. 28 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." 29 With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term "insignificant" instead of "very low". 30 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". 1. Mr White has accepted that the evidence which the State led satisfied the statutory tests. I agree. The unchallenged evidence does justify the making of the interim supervision order to which Mr White consented, establishing to the required degree that the evidence, if proved, would justify the making of an extended supervision order, because he poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision by further order. 2. That evidence includes not only the serious offences Mr White committed in 2014 and 2016, but that since going into custody, Mr White has participated in programs to address the addictions he has and the risks which he poses. In custody he purported to have reformed and resiled from some of his previously held beliefs, which the evidence suggests motivated his terrorist offending. Other evidence, however, including as to his conduct after release to parole, including relapse into former antisocial associations and the re-establishment of his Facebook page, contrary to the terms of his parole, where he posted a picture of a figure throwing a Molotov cocktail suggest, as the Crown argued, that his statements in custody must be approached with some scepticism. 3. The May 2018 risk assessment report of the psychologist Ms Abreu, who interviewed Mr White, refers to self-reported past violence committed towards others because of their race, culture or sexuality, even though Mr White has a limited record of such offending. He then claimed that dots tattooed on his hands reflected those offences. 4. Mr White also has a complex mental health history, including epilepsy; diagnosed Asperger's syndrome, considered more likely to be PTSD; depression; suicide attempts; paranoid delusional thinking; persecutory ideation; lack of insight; alienation from others and admissions into psychiatric facilities. 5. Mr White also reported commencing cannabis abuse at age 8, with involvement in white supremacy groups resulting in abuse of ecstasy, cocaine, acid and ice, resulting in his pursuit of violent behaviour. 6. Mr White also has a record of weapons offences dating back to age 18, as well as breaches of bonds. He has also given a history of other uncharged offending, associated with his longstanding involvement with white supremacy groups. That includes having carried weapons since age 8, as well as involvement in the Cronulla and Macquarie Fields riots; and use of weapons such as knuckle dusters, Tasers, knives and guns. After his 2014 offences, search of his home firearms located only, however, imitation firearms. 7. At age 18 two of Mr White's custody of knife offences were dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), but the seriousness of his offending increased with his ongoing involvement in white supremacy groups. 8. Ms Abreu noted that Mr White's history included introduction to white supremacy ideology in childhood and subsequent involvement in violent offending, motivated by the desire to offend with this peer group. His history of membership of a number of white supremacist groups, included promotion of their ideology on Facebook and establishment of a band called Blitzkrieg 88, which practiced white supremacist punk rock. 9. Ms Abreu also noted that Mr White professed no longer to identify with such groups, as the result of his experiences in custody and participation in programs there, but that he continued to identify with skin head style groups, as "a fun way of life". 10. While testing resulted in assessment of Mr White's intellectual abilities falling into the average range and some aspects into the high average range, social cognition fell into the low average range. On previous assessment Mr White fell into the medium risk category for general and violent offending and on Ms Abreu's assessment, into the low to medium range. Ms Abreu explained that: "81. It is important to note that the frequency of violent extremism or politically motivated violence is significantly less than ordinary crime. The sample size of people who actually engage in terrorist acts will never be large enough to allow the statistical power needed to determine the optimal quantitative combination of risk factor scores, or to generate a final estimate of risk that does not rely in substantial part on clinical judgment (Monahan, 2010). Therefore any prediction of future engagement in acts of violent extremism, politically motivated violence or terrorism related offences does not have the statistical basis common in other ordinary criminal offending risk assessment tools. 82. Therefore the assessment of violent extremism cannot be anchored in statistical probabilities and subsequently a numerical score cannot be provided. Rather, the overall risk judgement is based on the clinician's assessment of the available information at the time of the assessment." 1. It was using the Violence Extremist Risk Assessment – version 2 revised tool, the limitations of which Ms Abreu explained, that Mr White was assessed as falling in the low-medium range, having regard to risks assessed by reference to his Facebook posts after release on parole. Ms Abreu observed: "92. Mr White reports that he identifies as a "skin head" and views this as distinctly different to associations with extremist far right groups. He reports he is involved in the skin head subculture via lifestyle choices including the way he dresses and by attending heavy metal "gigs" in which he engages in "moshing". Mr White also reports that he continues to play in a band whose genre of music is described by him as "heavy metal" consisting of "horror and gruesome lyrics". It is not suggested by the author that these lifestyle choices equate to Mr White engaging in extremist violence, however they are areas which may need to be monitored closely to ensure he is not on a trajectory that may re-expose him a subculture which promotes substance use and extremist or violent ideologies." 1. Ms Abreu considered that Mr White's exposure to extremist ideology and violence from his childhood had a significant impact on his world view and had desensitised him to violence, resulting in his convictions and being the subject of a weapons prohibition order. She also identified protective factors, including ongoing family support, but considered that his ongoing consumption of alcohol could be problematic, because of the past association between his alcohol use and offending. He also had limited understanding of the association between his continued alcohol consumption and antisocial behaviour. 2. Risk factors identified included Mr White's personality characteristics of excitement seeking and impulsivity, which predisposed him to involving himself in the extremist arm of the white supremacist subculture, without engaging in consequential thinking. His tattoos visibly identified him with that ideology and a sense of belonging and camaraderie motivated his ongoing involvement in such groups. 3. Ms Abreu also considered that Mr White was at risk of mental deterioration, given his history and dependence on family relationships. Indicators of such increased risks were identified. Potential serious mental health concerns were also identified, as were partial protective factors, including an ongoing willingness to participate in available programs. 4. Ms Abreu concluded that: "108 The overall totality of evidence suggests that Mr White falls within the medium risk of violent and general offending, according to his last LSI R His current risk for extremist violence was assessed as being in the Low - Medium range Whilst his immediate presentation does not indicate imminence of risk, his access and pathway to a trajectory toward significantly increasing his risk may require some moderation or intervention This appears to be primarily associated with his social network and peer groups and his history and capacity Whilst Mr White currently denies any interest or intent supportive of violent extremism, politically motivated violence and/or serious terrorism offences, both intelligence holdings and self report, note his ongoing engagement in a skinhead subculture 109 Given Mr White is currently in the community serving a parole period, at the time of assessment Mr White was not eligible for consideration of a Continuing Detention Order (CDO) by the court 110 In the event that Mr White is subject to an Extended Supervision Order (ESO), it is likely that he would be subject to ongoing joint intensive supervision and case management by CSNSW and the NSWPF Terrorist High Risk Offender (THRO) Unit Under such supervision, Mr White s current residential arrangements may be reviewed for suitability and his social contacts would be scrutinised with the aim of monitoring his peer associations, including with known persons who may be of interest to counter terrorism authorities, and with the aim of increasing pro social influences and connections with a peer group who do not align themselves with extremist subcultures He may also be subjected to electronic monitoring, the obligation to provide weekly schedules of movements, third party contacts monitoring restrictions on the use of social media mobile phone usage and online activity restrictions Electronic monitoring may assist in the case management of Mr White by alerting staff to any non-approved movements. Specific exclusion zones may also be implemented under an ESO and this may assist in managing Mr White's attendance at places of concern or social gatherings such as more subversive heavy metal punk gigs which may promote and espouse extremist far right wing ideologies. The level of supervision on an ESO may encourage further development and maintenance of a stable and sustainable prosocial lifestyle. 111. In addition to Mr White's management via monitoring requirements, it is recommended that Mr White continue his engagement with the NSWPF ESP for ongoing CVE support. This would encourage Mr White and assist him in continuing to have open discussions to promote an alternative prosocial narrative, explore other interests and solidify a non-extremist identity. This would also assist Mr White with continuing to increase his disillusionment with white supremacy groups and their associated ideology, seek the ESP's assistance in facilitating the removal of his tattoos, and support him to develop more awareness of how to present himself in a way that would be in line with>a pro social pluralistic lifestyle. It is recommended that he continue to engage with ESP until it is determined by them that he is suitable to be discharged from that service. 112. It would also be important to ensure Mr White's mental health is stable and he is compliant with medication. Given Mr White's ^personality profile which suggested symptoms associated with psychoticism, it would be important that he undertake a full psychiatric review to explore whether the symptomology is a result of his history of complex trauma, overlapping symptoms to his* diagnosis of Autistic Spectrum Disorder (mild), symptoms related to his history of epilepsy and absent seizures or in fact symptoms of severe personality psychopathology or serious mental health issues e.g. psychotic illness Mr White is also currently engaged with a community based psychologist to address trauma -related symptoms. It is recommended that he continue with this intervention if deemed appropriate by monitoring staff. This would assist Mr White in developing effective skills to manage his trauma related symptoms, increasing his application of pro social behaviours '- and therefore reducing his use of antisocial behaviours. Mr White has already completed EQUIPS Addiction and at the time of writing this report, he was undertaking EQUIPS Aggression in the community. This treatment pathway would appear of sufficient intensity to meet his assessed level of treatment need for general criminality." 1. There was also a risk management report from Corrective Services, which described Mr White's superficial engagement with supervision during his release from custody on parole; the issue of formal directions about his use of Facebook; his compliance with psychiatric treatment plans; attendance at appointments; and incurring a number of charges. The risk management plan proposed for Mr White was there outlined and its limitations explained. 2. The evidence thus establishes that Mr White's offending behaviour has been longstanding and considerably more serious than his criminal record reflects. It has become more serious over time, in circumstances where he has not complied with conditions of supervision in the past, or while currently on parole for his terrorism related offending and that he has serious ongoing mental health issues and a history of considerable substance abuse. Mr White's ongoing adherence to his involvement in white supremacist groups, with which he has connections since childhood and which has been implicated in his prior violent offending, all supports the conclusion that he poses relevant ongoing risks to the safety of the community. 3. In the result, I am satisfied that the parties' common position, that the State has met the onus which falls upon it, should be accepted and an interim supervision order made. The disputed conditions 1. The State proposed conditions of supervision including electronic monitoring; reporting; schedules of movements; accommodation; place and travel restrictions; employment, finance and education; drugs and alcohol; non-association; weapons; vehicles; internet and electronic communications; search and seizure; access to violent and extremist material; personal details and appearance; and medical intervention and treatment. 2. Amendments to some of those conditions were agreed at the hearing. In issue remained only the proposed conditions as to electronic monitoring and a schedule of movement, in terms: "Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by his EO, and must not tamper with or remove such equipment. Schedule of Movements 5. The defendant must provide a weekly plan (called a Schedule of Movements) to be approved by his EO and this is to be provided three days before it is due to start. 6. If the defendant wants to change anything in his Schedule of Movements, once it is approved by his EO, he must tell his EO about the change 24 hours in advance unless his EO approves a shorter period. 7. The defendant must not deviate from his approved Schedule of Movements except in an emergency, in which case the defendant will notify his EO and comply with any reasonable direction received thereafter." 1. There was no issue as to condition 8 which provided: "8. The defendant must truthfully answer questions from his EO about where he is, where he is going and what he is doing." 1. It was argued for Mr White that conditions reflecting those of his current parole were adequate to manage the risk which he posed, pending the hearing of the application for final supervision orders and that it was premature to increase the stringency of that supervision, pending the further assessments which it was agreed that the Court should order. In advancing that submission, reliance was placed on the State's capacity to seek a variation or increase in the conditions of his supervision, in the event of any non-compliance with the conditions which the Court now imposed. 2. Mr White also relied on Ms Abreu's risk assessment, particularly her view that he fell in the low to medium range for extremist violence and that his immediate presentation did not indicate imminence of risk, but that 'his access and pathway to a trajectory toward significantly increasing his risk may require some moderation or intervention", to submit that the disputed conditions would not be imposed upon him, as a part of the balance which the Court had to arrive at. 3. It was also submitted, in the alternative, that the Court could impose on Mr White a condition requiring him to keep charged, carry and answer his mobile phone, which together with the provision of a schedule of movements, would be adequate to manage the risks which he posed, in the way discussed in Wilde. 4. That was not accepted by the Crown, which argued that this would not only be labour intensive and expensive, but an unreliable condition, given the evidence of Mr Wilde's poor compliance with his conditions of parole and further, that it would not be adequately responsive to the true nature of the risks of further terrorism offending which the evidence established he posed, given his relevant history. The disputed conditions must be imposed 1. I have considered the disputed conditions in light of the evidence, considered together with the other conditions which the parties have agreed; the relevant statutory provisions I have discussed and the test discussed in Wilde. There was emphasised the need to consider "the risk of future offending of the type which was the basis of the order", in this case offending amounting to terrorism. 2. As Button J did in State of NSW v Keith Farringdon [2018] NSWSC 874 at [46], I have also borne in mind that it can be expected that the Departmental supervising officer responsible for Mr White's supervision will approach those responsibilities "in a common sense way, informed by a practical and constructive exercise of discretion". 3. I have concluded that the balance which the Court must achieve in the conditions of supervision imposed upon Mr White by the interim supervision order, requires that the disputed conditions be imposed on Mr White. I have been swayed to this conclusion by the evidence as to: * the evidence including accounts Mr White has given, about his longstanding involvement in white supremacist groups, including at a senior level and the serious offending which resulted from that involvement, including uncharged offences involving weapons, drugs and violence, as well as the arson for which he is now on parole; * Mr White's history of mental health problems; * Mr White's history of drug and alcohol abuse; his claimed intoxication at the time of the arson; and the evidence of his resumption of alcohol abuse while on parole; * Mr White's repeated breaches of the conditions of his parole, including those involved in: his repeated failures to comply with his psychological treatment regime and treatment providers' inability to make contact with him; his recommencement of the use of a Facebook page on which he added relevant images, including a person who appears to be throwing a Molotov cocktail and his failure to take down that page and those images, when directed; * The February 2018 recommendation that his parole be revoked for his failure to adapt to normal community life and abide by the conditions of his release; * the photographs of burning churches which Mr White circulated shortly before his arson offence. 1. In the latter respect, if the circulation of those photographs was an indicator of the serious arson offence which Mr White soon afterwards committed while he was disinhibited as the result of intoxication, it must be accepted that his resumption of alcohol abuse and posting of a person throwing a Molotov cocktail on his Facebook page, contrary to directions given to him under the conditions of his parole, were disturbing developments. They cannot be ignored when the risks which Mr White poses are assessed and when the parties' competing position as to the conditions to be imposed on Mr White, to manage these risks, are resolved. 2. In my view those developments provide powerful support for the case which the Crown advanced in relation to the disputed conditions and preclude the conclusion that the conditions Mr White suggested in relation to his mobile phone, would be adequate to managed the risks which he poses 3. While Ms Abreu concluded that Mr White's immediate presentation did not indicate the imminence of risk, given her assessment that the level of his risk fell within the low to medium range, she also considered that "his access and pathway to a trajectory toward significantly increasing his risk may require some moderation or intervention". 4. The evidence establishes that the conditions of Mr White's parole did not sufficiently modify that trajectory with the result, I am satisfied, at this interim stage of this application, pending Mr White's further assessment in accordance with the orders which I will now make, that the more stringent conditions for which the State contended must be imposed upon him, so as to adequately manage the risks of further terrorism related offending, which he undoubtedly now poses. Orders 1. For these reasons, I make the following orders: 1. Pursuant to s 24(5) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"), the Court: 1. appoints 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. directs the defendant to attend those examinations. 1. Pursuant to s 27 of the Act, the defendant be subject to an Interim Supervision Order commencing on 17 July 2018; and 2. Pursuant to s 28(1) of the Act, the Interim Supervision Order be for a period of 28 days; and 3. Pursuant to s 29(1) of the Act, direct that the defendant comply with the conditions set out in the Schedule. 4. Access to the Court's file in this proceeding to a non-party is permitted only with the prior 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. STATE OF NSW V WHITE SCHEDULE OF CONDITIONS OF SUPERVISION (404 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2018