Judgment

1. By amended summons filed on 9 July 2018, the State of New South Wales (“the State”) seeks an extended supervision order (“ESO”) for a period of two years against Ricky White (“the defendant”) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”). At the time that these proceedings were commenced, the defendant was serving a sentence which expired on 17 July 2018. That sentence was imposed for a church arson committed in Taree in 2016. In 2014, the defendant had made threats to the Jewish Museum in Sydney and was also convicted in relation to that. He is a 28-year-old man with an historic association with and membership of right-wing white supremacist groups with neo-Nazi tendencies.

2. The THRO Act was enacted on 22 November 2017 and commenced operation on 6 December 2017. It permits this Court to make orders either detaining or supervising certain offenders beyond the expiration of their imprisonment sentences if they pose an unacceptable risk of committing a serious terrorism offence following their release. Section 14 of the THRO Act relevantly renders the Act applicable to sentences that had commenced prior to its commencement.

3. On 11 July 2018, following a preliminary hearing on 9 July 2018, Schmidt J made orders appointing a psychiatrist and a psychologist to conduct separate examinations of the defendant and to furnish reports: s 24(5) of the THRO Act. Her Honour also placed the defendant on an interim supervision order (“ISO”) for 28 days commencing on 17 July 2018. On 8 August 2018, Bellew J renewed the ISO by consent for a further 28 days to commence on 14 August 2018 and to expire on 10 September 2018. On 6 September 2018, Bellew J renewed the ISO for a further 28 days to commence on 11 September 2018 and to expire on 9 October 2018.

4. On 7 September 2018, the defendant was arrested and charged with five counts of failing to comply with his ISO and has been in custody since that time. On 7 November 2018, the five counts charged against the defendant for breaching his ISO were rolled into one count. He formally pleaded guilty to that count on 16 November 2018. That matter is listed for sentence on 10 January 2019. He remains in custody bail refused in relation to that matter. It is noted that, in accordance with s 28(6) of the THRO Act, the defendant’s ISO is suspended whilst he remains in custody.

5. The final hearing in this matter proceeded before me on 21 and 28 September 2018. Mr Agius SC appeared with Mr Aitken for the State and Mr Johnston SC appeared with Ms Cook for the defendant.

6. As is usually the case in applications of this nature, the State placed a considerable amount of information before the Court in support of the application. That material comprised the following:

1. Affidavit of Benjamin Hopper sworn on 30 May 2018. He is a Detective Inspector of the NSW Police Force and Commander of the High Risk Terrorist Offender Investigation and Compliance Unit (“the HRTO Unit”);

2. Three affidavits of Vincenzo Camporeale. The first was affirmed on 8 June 2018 with Annexures A-E and Exhibit VC-1; the second was affirmed on 28 June 2018 with annexures A-I; and the third was affirmed 4 September 2018. He is a solicitor employed at the Crown Solicitor’s Office. A large number of documents were annexed and exhibited to his affidavit including correspondence, offender integrated management system (“OIMS”) notes and other reports.

3. Affidavit of Laura Byrne sworn on 27 June 2018. She is a unit leader at the Campbelltown Community Corrections office and provided evidence about the defendant’s unauthorised activities on his Facebook account

4. Two affidavits of Lukas Sywenkyj affirmed on 28 June 2018 and 25 July 2018 respectively. He is a Detective Sergeant with the HRTO Unit. He deposed to the circumstances of the breaches concerning the Facebook entries and identified the defendant’s various tattoos.

5. Affidavit of Justin Hewitt sworn on 28 June 2018 with annexures A-B and Exhibit JH-1. He is a Detective Senior Constable with the HRTO Unit and deposed to, inter alia, the forensic examinations of the defendant’s mobile telephone.

6. Affidavit of Marco Buttigieg affirmed on 3 September 2018 with annexures A-C. He is a Detective Senior Constable with the HRTO Unit. He deposed to, inter alia, the defendant’s acknowledgment of the terms of his ISO and he was present during the search of the defendant’s approved address.

7. Affidavit of Ellen Southwood affirmed 19 September 2018 with annexures A-C and Exhibit ES-1. She is another solicitor at the Crown Solicitor’s Office. Annexed and exhibited to her affidavit was a large number of documents, including those produced by the Commissioner of the Police

8. Psychological report of Chelsey Dawson dated 23 August 2018;

9. Psychiatric report of Dr Adam Martin dated 27 August 2018; and

10. Evidence of Carly McMillan (Community Corrections Officer within the extended supervision quarters team) given viva voce on 21 September 2018.

7. The defendant did not dispute that the statutory pre-conditions for the making of an ESO were satisfied and he did not resist the imposition of an ESO for a two-year period. The hearing before me focused on the dispute as to the appropriate conditions to be imposed. Although the making of an ESO was not opposed, it is necessary that I be satisfied that the relevant statutory pre-conditions are made out before imposing such an order. Such a determination involves an evaluative test that is not capable of being resolved by way of consent: State of New South Wales v Briar (No 3) [2017] NSWSC 1255 at [17].

The defendant’s background

8. Parts of the following background are based on the Court-ordered psychiatric reports of Ms Chelsey Dewson and Mr Adam Martin which, in turn, are partially based on information provided by the defendant.

9. The defendant was born in 1990. His parents separated when he was three years old. His father was associated with bikie gangs, was a drug user and had spent time in gaol. The defendant frequently ran away from home when he was young and was at times homeless. In that context, at around the age of eight, the defendant met a group of skaters with whom he formed a bond. He adopted their views of white supremacy and thereafter became a member of a group known as “Combat 18”. Within Combat 18, the defendant said that he was given military-style combat training and was exposed to hate-motivated crime. He recalled his peers targeting “ethnic” individuals and their property and that he was motivated by his peers to join in their acts of violence. According to the defendant, he began to “rise through the ranks” of Combat 18 and eventually joined another white supremacist group known as “Blood and Honour”.

10. As the defendant assumed higher leadership roles within Blood and Honour, he was asked to recruit and promote a lesser known group called “Right Wing Resistance” (“RWR”). That group originated in New Zealand and the defendant was asked to build support for it within Australia. The defendant assumed leadership roles in RWR, eventually leading the Australian faction and becoming second in charge of the international group. He recruited other members by promoting the group’s white supremacist views, attending demonstrations and posting flyers and was responsible for training RWR members to “fight in combat”. He also reports running other groups including a “Viking” group referred to as “Woltasvolk”.

11. During his schooling years, the defendant was frequently in trouble. He was suspended on numerous occasions and was expelled in year six and then again in year 11 after which time he permanently left school. He reported being diagnosed with Asperger’s syndrome as a child, although there was conflicting evidence as to this diagnosis as discussed below at [79]-[80]. He also reported being diagnosed with attention deficit disorder during primary school because he had not listened to others but rather “ran amok”. He saw a paediatrician and child psychologist as a child and also had contact with Headspace, a mental health service for teens. He was admitted to mental health units at the ages of 17 and 18, mainly in the context of attempted suicides and long-term problems with anxiety and depression.

12. Two instances of the defendant’s criminal offending are most relevantly linked to his associations with white supremacist ideology. The first concerned phone calls to the Sydney Jewish Museum in 2014 which involved anti-Semitic threats of extreme violence and sexual assault. The second instance is the index offence, that being, the church arson in Taree in 2016.

13. On 24 January 2014, the defendant and two others used his mobile phone to make a series of seven telephone calls to the Sydney Jewish Museum which took place over nine minutes. The calls were made when the Museum was closed and, as a result, were recorded on the Museum’s answering service. As noted above, the calls involved anti-Semitic threats of extreme violence and sexual assault. The defendant spoke during three of the calls and was heard in the background of at least two others (according to admissions made during an electronically recorded interview of a suspected person (“ERISP”) with police. He claimed to have been drunk at the time the calls were made. He was arrested and charged on 4 April 2014 and was ultimately convicted of three counts of using a carriage service to menace/harass/offend and one count of using a carriage service to threaten serious harm. He was fined and placed under a 12 month recognizance.

14. On 18 September 2016, the defendant was with two friends in Taree. At about 12:30am, the defendant dropped some flyers promoting RWR in a number of mailboxes. Shortly thereafter, they walked past the Destiny Church of Australian Christian Churches. The church had been the subject of a previous incident whereby windows were broken. As a consequence, sections of glass facing the street were boarded up to prevent entry. The defendant pushed through one of the wooden boards and lit a curtain on fire with a cigarette lighter before absconding. The fire caught on and caused significant damage (approximately worth $200,000) to the church and property within it. On 22 July 2016, approximately two months prior to this offence, the defendant had text messaged a photo of a church on fire to two of his friends. The original image appears on the internet under the caption “rare picture of Varg Vikernes in front of a burning Kappel”. However, the picture had been modified to include the name of the defendant’s band, “Fatal Illusion”.

15. The defendant was charged with and convicted of intentional or reckless damage to property contrary to s 195(1)(b) of the Crimes Act 1900 (NSW) and was sentenced to 22 months imprisonment with a 12-month non-parole period on 6 December 2016. As discussed above, that sentence expired on 17 July 2018.

16. Before turning to consider the rest of the material put before the Court in support of this application, I propose to first outline the statutory regime and identify the test I must be satisfied of before I would make an ESO in this matter.

Statutory pre-conditions to an eso

17. The starting point is to note the objects of the THRO Act which are set out in s 3:

“(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.”

18. Part 2 of the THRO Act (ss 19-32) concerns extended supervision orders (“ESOs”) and Part 3 of the THRO Act (ss 33-49) concerns continuing detention orders (“CDOs”). This application is for an ESO so I do not consider it necessary to set out the relevant provisions in Part 3 of the THRO Act.

19. Section 20 of the THRO Act sets out the statutory pre-conditions to the making of an ESO. In summary, the State must satisfy the Court of the following five conditions:

1. That the defendant is an “eligible offender” (s 20);

2. That the offender is (or was at the time the ESO application was filed) in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence or under an existing ISO, ESO, IDO or CDO (s 20(a));

3. That the ESO application is made in accordance with Part 2 of the THRO Act (s 20(b));

4. That the offender is a relevant kind of offender, being either (s 20(c)(i)-(iii)):

1. A “convicted NSW terrorist offender”;

2. A “convicted NSW underlying terrorism offender”;

3. A “convicted NSW terrorism activity offender”; and

5. That the offender poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an ESO, with the Court to be satisfied of such to the standard of a “high degree of probability”.

Pre-condition 1 - Is the defendant an “eligible offender”? (s 20)

20. There are two requirements for a person to qualify as an “eligible offender” as defined in s 7 of the THRO Act. First, the person must be 18 years of age or older: s 7(a). The defendant was born in 1990 and therefore satisfies the first requirement.

21. Second, the person must be serving a sentence of imprisonment for a “NSW indictable offence” or be supervised or detained under the THRO Act after serving such a sentence: s 7(b). “NSW indictable offence” is defined as meaning an offence against a law of the State for which proceedings may be taken on indictment: s 4. “Serving a sentence of imprisonment” is defined as either serving a sentence of imprisonment by way of full-time detention or parole: s 6. Section 12A provides that a person who is subject to a suspended ISO or IDO is to be treated as being supervised or detained under the THRO Act for the purposes of any definition under the Act, including therefore s 7(b).

22. As discussed above at [4], the defendant is subject to an ISO which has been suspended as he is in custody awaiting sentence for breaching his ISO. In accordance with s 12A, the defendant is being supervised in accordance with the THRO Act and therefore the second requirement in s 7(b) is satisfied. The defendant is thus an “eligible offender” for the purposes of s 20.

Pre-condition 2 - Is (or was the offender at the time the ESO application was filed) in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence or under an existing ISO, ESO, IDO or CDO? (s 20(a))

23. The Court may only make an ESO if 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) by way of serving a sentence of imprisonment for a NSW indictable offence (s 20(a)(i)) or by being under an existing ISO, ESO, IDO or CDO (s 20(a)(ii)). As discussed above, “serving a sentence of imprisonment” is defined to include full-time detention and parole: s 6.

24. The original summons was filed on 8 June 2018 at which time the defendant was being supervised on parole. Furthermore, the defendant is currently subject to an ISO. I am therefore satisfied that this pre-condition is satisfied.

Pre-condition 3 – Was the ESO application made in accordance with Part 2 of the THRO Act? (s 20(b))

25. The third pre-condition is that the application was made in accordance with Part 2 of the THRO Act: s 20(b). Sections 22-24 set out the requirements for an ESO application. Section 22 provides that only the state may apply to the Court for an ESO and s 24 sets out the relevant pre-trial procedures. These procedural requirements were all satisfied in this application.

26. Section 23, headed “Requirements with respect to application” has four requirements concerning an ESO application.

27. First, an application for an ESO may only be made in respect of an “eligible offender”. As has already been discussed in relation to the first pre-condition, the defendant is an “eligible offender” and thus this requirement is satisfied.

28. Second, an ESO application may only be made in respect of an eligible offender who is in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence or under an existing ISO, ESO, IDO or CDO. As discussed in relation to the second pre-condition, at the time that the State filed the application on 8 June 2018, the defendant was serving a sentence of imprisonment by way of parole. This requirement has been satisfied.

29. Third, an application for an ESO may not be made until the last 12 months of the offender’s “current custody or supervision”. “Current custody or supervision” is defined as custody or supervision to which the offender is subject at the time of the application: s 19. At the time of the application on 8 June 2018, the defendant was subject to a term of imprisonment with respect to the church arson. As discussed above, that sentence expired on 17 July 2018. As the State’s application was made within 12 months of 17 July 2018, this requirement has been satisfied.

30. Fourth, an ESO application must be supported by documentation that addresses each of the matters referred to in s 25(3) and which includes a report (prepared by a qualified psychiatrist, registered psychologist or other relevant expert) that assesses the likelihood of the eligible offender committing a “serious terrorism offence”: s 23(3). That requirement has also been satisfied.

Pre-condition 4 – Is the defendant a relevant kind of offender? (s 20(c))

31. The fourth pre-condition is that the defendant must either be a “convicted NSW terrorist offender”, “convicted NSW underlying terrorism offender” or a “convicted NSW terrorism activity offender”: s 20(c) of the THRO Act.

Is the defendant a “Convicted NSW terrorist offender”?

32. The meaning of “convicted NSW terrorist offender” is contained in s 8 of the THRO Act as follows:

“Convicted NSW terrorist offender

In this Act, an eligible offender is a "convicted NSW terrorist offender" if:

(a) the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for an offence against section 310J of the Crimes Act 1900, or

(b) the offender has previously served a sentence of imprisonment for an offence against section 310J of the Crimes Act 1900 and is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for any other NSW indictable offence.”

33. Section 310J of the Crimes Act provides for the offence of intentional membership of a terrorist organisation in circumstances where the person has knowledge that the organisation is a terrorist organisation. The defendant has never been convicted of this offence. It follows that the defendant is not a “convicted NSW terrorist offender”. This was conceded by the State which instead relied upon the defendant being either a “convicted NSW underlying terrorism offender” or a “convicted NSW terrorism activity offender”.

Is the defendant a “convicted NSW underlying terrorism offender”?

34. Section 9(1) of the THRO Act defines “convicted NSW underlying terrorism offender” as follows:

“(1) In this Act, an eligible offender is a "convicted NSW underlying terrorism offender" if:

(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.”

35. There are therefore three requirements that need to be satisfied for the defendant to be a “convicted NSW underlying terrorism offender”. First, the offender must be serving a sentence of imprisonment for a NSW indictable offence, or be under continuing supervision or detained under the THRO Act after having served such a sentence. As discussed above at [21], while the defendant is subject to a suspended ISO, s 12A deems his supervision under the THRO Act to be continuing. Therefore this requirement is satisfied.

36. The second requirement is that the offender’s offence is a “serious offence”. “Serious offence” is defined in s 9(2) of the THRO Act as including both specified offences and broader categories of offending. Relevantly, s 9(2)(d) provides that an “offence that caused serious damage to property” is a “serious offence”. I accept that the church arson perpetrated by the defendant caused serious damage to property and therefore qualifies as a “serious offence”. This requirement is also satisfied.

37. The third requirement is that the offender’s offence occurred in a “terrorism context”. In this respect, s 9(3) of the THRO Act provides as follows:

“(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 coercing, or influencing by intimidation, the government of an Australian jurisdiction or foreign country (or of part of an Australian jurisdiction or foreign country) or of intimidating the public or a section of the public, or

(b) the offender knew, or was reckless as to whether, the offender's offence would materially assist any other person to commit:

(i) an offence against section 310J of the Crimes Act1900 , or

(ii) a NSW indictable offence that is a serious offence committed by the other person with the intentions referred to in paragraph (a), or

(iii) a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth.”

38. The State contended that the defendant fell within s 9(3)(a) of the THRO Act; that is, that the church arson was committed with the intention of advancing a “political, religious or ideological cause” and that it was done with the intention of intimidating the public or a section of the public. The context in which the church arson occurred was that the defendant had previously expressed a belief in Odinism and white supremacy, that he sent a photo of the burning church to friends with superimposed inverted crucifixes on 22 July 2016 and that shortly before he burnt the church down, he had distributed RWR flyers in Taree.

39. I have had regard to the evidence that the defendant disclaimed any ideological motivation for the offence to police and claimed that he had no problem with Christians. These statements to police in his ERISP were inconsistent with the evidence of the eyewitness to the arson, Mr Brereton, who was a friend of the defendant. He told police that the defendant had said “I don’t like churches” before starting the fire. Moreover, at the time of the church arson the defendant had described himself as the “2IC” of RWR in NSW with responsibilities including recruitment and advancing RWR’s cause.

40. The report from the NSW Police Joint Counter-Terrorism Team dated 10 May 2018 (referred to below at [85]), provided a description of RWR. It is a group which has white supremacy ideology but little prominence within the “National Extremist Racial Extremist (NERE)” scene in Australia. There is only limited information relating to RWR operations in Australia. It is believed to be a NERE group and has the following mission statement:

“The Right Wing Resistance is an active army of WHITE Nationalists World Wide who are committed to standing up for our WHITE heritage and the 14 words. We expect all our members to be men and woman [sic] of action who’ll stand proudly for their beliefs and to be at the forefront of our struggle to stop WHITE genocide and our fight to protect our freedom, culture and identity. Do your family, your heritage, your future and yourself proud. Step up and join today, Respect, Courage, Honour, pride always… Hail the Resistance? 14/88.”

41. As is discussed below at [88], the “14 words” comprise the white supremacist slogan in America, that being, “we must secure the existence of our people and a future for WHITE children.” Furthermore, “88” is a symbol for “Heil Hitler”, “H” being the eighth letter of the alphabet.

42. I have had regard to the report by Professor Paul Spoonley, Pro Vice-Chancellor of the College of Humanities and Social Sciences at Massey University of New Zealand. Professor Spoonley has expertise in race relations, right wing extremism, skinhead political movements, anti-Semitism and so forth. He provided the following information in relation to RWR.

43. Sometime in about 2008 or 2009, RWR emerged in New Zealand, bringing together various skinhead activities and white supremacist activists. It was created and named by activist Kyle Champan. In addition to aggressive opposition to cultural diversity and multiculturalism, advocacy for white pride and racial purity and the use of neo-Nazi imagery, Mr Chapman endeavoured to involve RWR in political events and campaigns (such as disrupting political meetings), to make the group visible (such as vigilante patrols in Christchurch) and to promote it through the use of social media. RWR was also made very recognisable due to the adoption of a black uniform, insignia on the lapels and black foraging caps reminiscent of Nazi German uniforms.

44. RWR was heavily reliant on the direction and initiative provided by Mr Chapman. He had actively engaged with the media, including social media. When Mr Chapman left, the visibility and degree of organisation meant that the activity of RWR has faded somewhat in the last few years. However, there are several individuals who keep elements of RWR alive in social media. One of those persons was the defendant who used the online pseudonym “slackbastard”.

45. RWR remained active both online and in relation to various activities through to 2016-17. During this year there were reports of violence involving RWR members in Brighton, Christchurch during a RWR annual “flag day” after the group had marched through the CBD and attended the Bridge of Remembrance in black clothing and boots, flying a Union Jack, the Cross of St George and a “white power” flag.

46. The Australian RWR was said to have much of the same ideology and politics as its New Zealand counterpart. Slogans used on websites hosted by the Australian RWR included “Asia for the Asians. Africa for the Africans. White Countries for Everbody” and “anti-racism is a code word for anti-white”. One blog stated “Race: No Muslims, Blacks, Asians, Jews” and depicted neo-Nazi images.

47. I have had regard to this material and the material set out below. I am satisfied that the offender burnt down the church in Taree with the intention of advancing a political religious or ideological cause and intending the intimidation of the public or a section of it.

Is the defendant a “convicted NSW terrorism activity offender”

48. Although I am satisfied that the defendant is a “convicted NSW underlying terrorism offender”, I will nonetheless consider whether he is also a “convicted NSW terrorism activity offender”. In this respect, s 10 of the THRO Act provides:

“Convicted NSW terrorism activity offender

(1) In this Act, an eligible offender is a "convicted NSW terrorism activity offender" if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the "offender's offence") and any of the following apply in respect of the offender:

(a) the offender has at any time been subject to a control order,

(b) the offender has at any time been a member of a terrorist organisation,

(c) the offender:

(i) has made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts, or

(ii) is associated or otherwise affiliated with other persons or with organisations advocating support for engaging in any terrorist acts.

(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

(3) In this section: 

"terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.”

49. The first requirement is that the defendant is serving a sentence of imprisonment for a NSW indictable offence or is continuing to be supervised or detained under the THRO Act. As discussed above at [21] and [35], while the defendant is subject to a suspended ISO, s 12A deems his supervision under the THRO Act to be continuing. Therefore, the first requirement is satisfied.

50. The second requirement can be satisfied if any of the following four conditions are satisfied:

1. That the defendant has at any time been subject to a control order; OR

2. That the defendant has any time been a member of a terrorist organisation; OR

3. That the defendant has made statements or engaged in other conduct involving or advocating for engaging in any terrorist acts; OR

4. That the defendant is associated or otherwise affiliated with other persons or with organisations advocating support for engaging in any terrorist acts.

51. In terms of the first condition (s 10(1)(a)), “control order” is defined as an order within the meaning of Part 5.3 of the Sch to the Commonwealth Criminal Code Act 1995 (Cth) (“Commonwealth Criminal Code”): s 4 of the THRO Act. Section 100.1 of the Commonwealth Criminal Code defines “control order” to be “an interim order or a confirmed control order”. The law providing for these orders is contained in Div 104 of Part 5.3 of the Commonwealth Criminal Code. The defendant has not been subject to such control order.

52. Looking to the second condition (s 10(1)(b)), “terrorist organisation” is defined in s 10(3) of the THRO Act as having the same meaning as in Div 102, Part 5.3 of the Commonwealth Criminal Code. Section 102.1 of Div 102 of the Code defines “terrorist organisation” as follows:

“‘terrorist organisation” means:

(a)  an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b)  an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).”

53. None of RWR, Blood and Honour, Combat 18 or “Woltasvolk” are prescribed terrorist organisations. The question remains as to whether any of them, but RWR in particular, is an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act. I am not satisfied on the evidence described above that this is the case

54. With respect to the third and fourth conditions (s 10(1)(c) and (d)), s 4 of the THRO Act defines a “terrorist act” as having the same meaning as in Part 5.3 of the Commonwealth Criminal Code. That definition is to be found in s 100.1(1) of the Code as follows:

“‘terrorist act’ means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

(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.”

55. After reviewing all of the material provided in this matter, which I have set out below, I am satisfied that the defendant has engaged in conduct advocating support for engaging in terrorist acts (satisfying s 10(1)(c)(i)) and is also associated with others who advocate similar support (satisfying s 10(1)(c)(ii)).

56. I am thus satisfied that the defendant is a convicted NSW terrorism activity offender (in addition to being satisfied that he is a NSW underlying terrorism offender, as set out above). The fourth pre-condition is therefore satisfied.

Pre-condition 5 – Does the offender pose an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an ESO to a high degree of probability? (s 20(d))

57. One pre-condition remains – whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under the order: s 20(d). The remainder of my consideration will focus on whether this test has been satisfied.

58. “Serious terrorism offence” is defined in s 4 of the THRO Act as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty of seven or more years of imprisonment applies. Part 5.3 is headed “Terrorism” and contains a number of such offences, including engaging in a terrorist act (s 101.1(1)), providing or receiving training connected with terrorist acts (s 101.2), possessing things connected with terrorist acts (s 101.4), collecting or making documents likely to facilitate terrorist acts (s 101.5), acts done in preparation or planning for or planning of terrorist acts (s 101.6), directing the activities of a terrorist organisation (s 102.2), membership of terrorist organisations (s 102.3), recruiting for terrorist organisations (s 102.4), associating with terrorist organisations (s 102.8) and so forth. I have defined “terrorist organisation” and “terrorist act” above at [52] and [54] respectively.

59. Section 25(1) of the THRO Act provides that the Court may determine an application for an ESO by either making an ESO or dismissing the application. There are a number of mandatory considerations to which I must have regard when determining whether or not to make an ESO. Section 25(2) provides that in determining whether or not to make an ESO, the safety of the community “must be the paramount consideration of the Supreme Court.” The other mandatory considerations (in addition to any other matter considered relevant) are set out in s 25(3)(a)-(m). In considering whether the fifth pre-condition is satisfied, I propose to summarise the material before me on this application under headings corresponding with those mandatory considerations.

mandatory considerations

Section 25(3)(a): reports of Court appointed experts

60. On 11 July 2018, Schmidt J made orders appointing a qualified psychiatrist and a registered psychologist to conduct examinations of the defendant and to furnish reports pursuant to s 24(5) of the THRO Act. Expert reports were provided by Dr Adam Martin (psychiatrist) and Ms Chelsea Dewson (psychologist) following assessments of the defendant.

The report of Dr Adam Martin dated 28 August 2018

61. Dr Martin opined that the defendant does not have any major mental illness nor does he present with current major mood disturbance or depression. In his view, the defendant meets diagnostic criteria for borderline and anti-social personality disorder and exhibits symptoms consistent with post-traumatic stress disorder, given his history and exposure to significant violence. Dr Martin was of the opinion that the defendant’s personality disorder is a chronic condition and that it cannot be easily changed but that it is likely his behaviour could be moderated if appropriate psychological treatment is undertaken.

62. Dr Martin noted that factors for radicalisation can be historical (static) or dynamic (potentially changeable). Risk factors for radicalisation include having a criminal history, history of criminal violence, involvement with gang or delinquent peers, being a member of an extremist group, being committed to extremist ideology, having psychological issues, problems with employment, problems with education, low socio-economic status, intimacy problems, developmental trauma and isolation from family support.

63. It was his view that the defendant could “probably… be considered at risk of radicalisation” largely due to his historic identification with extremist groups and violent behaviour in that context. The defendant’s gravitation to extremist groups gave him a sense of identity, belonging and purpose and even though the defendant has now expressed rejection of his past extremist ideology, he is likely to have enduring identity issues. Dr Martin saw the defendant as quite suggestible and considered that he might continue to be vulnerable to negative peer influences and may re-gravitate towards extremist ideology.

64. In Dr Martin’s opinion, there is a need for supervision of the defendant in the community on an ongoing basis to minimise risks of further radicalisation or extreme behaviour, without which the defendant would be at risk of offending in a manner which could potentially meet the definition of terrorism. The most significant risk factors in this sense are the defendant’s personality disorder traits, his history of offending which includes extremist violence, his substance use and that he comes from an unstable background with limited pro-social support. It was also noted that the defendant has breached supervision while on parole and that, even though he has expressed rejection of extremist ideology, he has made posts on social media that could cause concern.

65. Dr Martin’s view about the proposed conditions of the ESO is that, even though potentially intrusive on the defendant’s liberty, that factor needs to be balanced against the risk to the community. Specifically, he opined that it is reasonable for the defendant to have ongoing psychological counselling, psychiatric monitoring and management as well as continued anti-depressant medication. He opined that the proposed two-year duration of the ESO is reasonable as he views the defendant’s risk issues as enduring in nature given that his personality disorder traits are likely to be chronic.

The report of Chelsey Dawson dated 23 August 2018

66. The defendant told Ms Dewson that he had experienced an unstable childhood and that he had a history of psychological and psychiatric intervention since his youth. Ms Dewson noted that the defendant’s antisocial attitudes had previously interfered with his treatment, referring to one occasion on which he was asked to leave counselling in light of racist remarks that he had made to his therapist.

67. The defendant reported having poor impulse control, difficulty communicating with people and opposition towards authority. During his youth and in his adolescence, the defendant had recurrent episodes of depressed mood characterised by feelings of worthlessness, hopelessness, anhedonia and lethargy. He has a history of suicidal behaviour, self-harm and suicidal ideation. His first attempt at suicide was in Year 7 and his last time was just prior to his incarceration for the index offence.

68. The defendant reported experiencing low moods, frequent “night tremors”, generalised anxiety, panic attacks, chronic worry and intrusive thoughts about his daily habits. He also reported having “flashbacks” about his involvement in violent behaviour and witnessing others being physically hurt. He said that he was prescribed anti-depressants which had no impact on his anxiety nor his flashbacks. The defendant said that his treatment with Dr Andrew Ellis, whom he had seen since he was released to parole for the index offence, was ineffective.

69. Ms Dewson considered the defendant’s presentation as being consistent with post-traumatic stress disorder and major depressive disorder in accordance with Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (“DSM-5”). She opined that the defendant meets the DSM-5 diagnostic criteria for anti-social personality disorder with a possibility of presence of other “Cluster B” personality disorders that are generally marked by “dramatic, emotional and erratic” personality traits.

70. Ms Dewson observed that there are disparities between common factors relating to risk-assessment for violent offending, violent extremism and terrorist offending and that there is no well-established instrument used to predict the risk of terrorist-based violence. However, Ms Dewson considered risk factors that have been demonstrably related to violence and developing literature pertaining to violent extremism and risk-assessment and identified the risk factors that she considered most appropriate to predict the defendant’s risk. Those risk factors (both dynamic and static) were: demography; age; marital status; gender; background; exposure to violence and attitudes supportive of violence; involvement in violence; prior military training; travel for training and fighting; glorification and attitudes supporting violence; direct contact with extremists; history of accessing extremist material; personal and/or community grievances with political decisions or actions of the country; and the defendant’s attitudes and beliefs.

71. Ms Dewson recommended that the defendant continue to engage in psychiatric and psychological intervention (including dialectal behavioural therapy) in order to manage future risk. In her opinion, the defendant’s offending behaviour is related to substance abuse, antisocial attitudes, antisocial peer associations, poor consequential thinking and emotional dysregulation. The defendant’s most relevant risk factor regarding violent extremism was said to be his susceptibility to return to his previous social network and re-engage with white supremacist groups within which he had previously held leadership roles and had a sense of purpose. Such risk is elevated if his negative emotional state is not regulated and if he returns to substance abuse and internet use as a form of escapism. Ultimately, Ms Dewson opined that that the defendant is at risk of radicalisation and committing a “serious terrorism offence” should he re-engage with white supremacist groups.

72. Ms Dewson opined that a two-year ESO would be appropriate but recommended that the restrictiveness of the conditions should reduce over time. In her view, the alcohol restriction should remain in place given the defendant’s history of offending whilst under the influence of alcohol. Furthermore, she opined that that any restrictions in relation to scheduling and electronic monitoring should decrease over time in response to supervision compliance and positive engagement.

Section 25(3)(b): other expert reports

73. The following history is taken from the Risk Assessment Report (“RAR”) prepared by Filipa Abreu and Naomi Prince (psychologists) on 17 May 2018. That report was prepared for the purposes of the State’s application. A number of findings were made by Ms Abreu in that report. Those findings include that the defendant has self-reported that he perpetuated violence against others due to their race, culture or sexuality (although he has no convictions in relation to any of these). The author opined that the defendant’s exposure to extremist ideology from an early age would have had a significant impact on his world view and desensitisation to violence.

74. The RAR notes that the defendant has a complex mental health history and personality profile. He has been diagnosed with epilepsy, depression and possibly Asperger’s syndrome and post-traumatic stress disorder and has had psychiatric admissions for suicide attempts. He has also reported paranoid delusional and thinking persecutory ideation in addition to having a lack of insight and feeling alienated from others. The report notes that the defendant self-reported substance and alcohol abuse and spent many years carrying weapons for self-protection. It is to be noted that he has matters on his criminal history consistent with this.

75. The defendant claimed to have been the second in-charge of the RWR. He described this role as including recruitment, activism, arranging rallies and events and holding monetary funds. He had his “white power” tattoo covered and plans to remove more of his tattoos. He claimed that skinheads (with whom he said he identified with) are not racist. They instead are against prejudice and are a “fun way of life”.

76. As for the defendant’s risk, Ms Abreu noted that the defendant had previously been assessed as falling in the medium risk category for general and violent offending using the Level of Service Inventory - Revised assessment (LSI-R). Ms Abreau used the Violence Extremist Risk Assessment (version 2, revised: VERA-2R) but cautioned that the sample size of people who actually engage in terrorist acts is not large enough to allow statistical prediction of risk. Rather, such risk assessments rely substantially on clinical judgment. Despite noting these limitations, the defendant was assessed as falling in the low-medium range for risk of extremist violence.

77. The defendant’s risk factors were identified as being his continued association was skinheads and all those who endorse far-right ideologies. It was noted that if his limited community connections broke down that he may be at increased risk of mental health deterioration and would then seek to gain acceptance from these peers. Excessive alcohol consumption was also identified as a risk factor.

78. Ms Abreu considered that the defendant’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 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 had limited understanding of the association between his continued alcohol consumption and antisocial behaviour. Ms Abreu also considered that the defendant was at risk of mental deterioration given his history and dependence on family relationships. Potential serious mental health concerns were also identified, as were partial protective factors, including an ongoing willingness to participate in available programs.

79. It is to be noted that the experts have not been consistent in their expert opinion as to the defendant’s mental health. Although he was discharged under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in relation to his initial offences on the basis of having Asperger’s syndrome, there is conflict as to whether he suffers from Asperger’s Syndrome in addition to his diagnoses of epilepsy, depression, suicide attempts, paranoid delusional thinking, persecutory ideation, lack of insight, alienation from others and admissions into psychiatric facilities. In this respect, the following is noted in the RAR.

80. A diagnosis of Asperger’s Syndrome was cited in an assessment report by Psychologist Ms Sarkis dated 8 April 2009. That report indicates that a previous diagnosis of Asperger’s Syndrome was “conferred by Dr Richard Dunstan Paediatrician on the 3rd February 2009 and by Jan Dunshea, Paediatric Psychologist”. A report completed by Neuropsychologists Dr Mellissa Hughes and Susan van den Berg in 2017 found that the defendant’s intellectual abilities fell within the average range, with some aspects being in the high average range but social cognition falling into the low average range. They also found that the defendant’s neuropsychological profile, including history, presentation and psychometric data was “not indicative of Asperger’s Syndrome (now known as Autistic Spectrum Disorder, mild).” Contrastingly, in a Justice health GP Referral/Discharge Summary authored by Dr Wade, Consultant Forensic psychiatrist dated 19 September 2017, the defendant was diagnosed with Autism Spectrum Disorder (mild).

Section 25(3)(c): risk assessment results

81. I have already addressed the observations of Ms Abreu in the RAR. She has noted that there are currently no statistical studies regarding future engagement in acts of violent extremism or terrorism related offences. Her assessment using the VERA-2R is largely based on a clinical evaluation. I note, however, that the Court has accepted such clinical evaluations of risk from psychiatrists in applications under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”). The fact that the prediction of risk is largely clinically-based does not deprive it of validity.

82. I have also addressed the risk factors identified by Ms Dewson in her report and the fact that the bulk of the criteria matched the defendant’s personal factors in this matter. Again, it is to be noted that it is not possible at this point in time for statistical predictions to be made as to the risk of terrorism offences being committed.

Section 25(3)(d): reports by Corrective Services NSW or NSW Police as to the extent to which the offender can reasonably and practicably be managed in the community

83. Ms Carly McMillan (Community Corrections Officer with the ESO Team) prepared a Risk Management Report (“RMR”) dated 21 May 2018. She noted that the defendant had not been in contact with the New South Wales Police Engagement and Support Program (“ESP”). She noted that his engagement on parole had been described by others as superficial and opined that the applicant’s mother and stepfather lacked insight into the defendant’s criminogenic factors and have misrepresented his progress in the past.

84. The RMR sets out the intended management strategies in the event that an ESO were granted. The plan includes interviews, field visits, searches (if required), contact with third parties, monitoring (including electronic monitoring), schedules and curfews, continued engagement with the ESP, referral to psychological, psychiatric and alcohol and drug services, alcohol and drug testing, non-association place restrictions and searching of electronic devices and financial statements of activities. Although Ms McMillan acknowledged the potential limitations of these strategies, she did not suggest that the defendant’s risk factors could not be addressed in the community under an ESO.

Section 25(3)(e): report(s) prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community

85. I have considered some this material above at [40]-[46]. The State relied upon a report from the NSW Police Joint Counter-Terrorism Team dated 10 May 2018. It was noted that there is limited information in relation to the work and ideology of RWR in Australia and thus reliance was placed on an expert in New Zealand who was commissioned to provide a report with respect to the defendant. The report notes that at this stage there is no current information to indicate that the defendant is planning or assisting with any active politically-motivated violence and that the unit had no current information relating to his ideology. In those circumstances, the question of risk-management is not addressed in that report.

86. I have already referred to the expert report of Professor Spoonley above at [42] in setting out background information with respect to RWR. In addition to providing information on RWR, his report provides information about supremacist ideologies and politics and explores beliefs surrounding white supremacy, Odinist beliefs, skinhead culture, heavy metal music, anti-church sentiments, anti-Semitism, the meaning of tattoo symbols on the defendant’s arm. Professor Spoonley also identified the significance of the defendant’s tattoos.

87. In Professor Spoonley’s expert opinion, the Celtic cross on the defendant’s left arm reflects the way the cross has been used by the RWR from its establishment. The numbers “14” and “88” on his hands (right and left respectively) represent Neo-Nazi and white supremacist policies and ideologies. The “14” is a reference to 14 words that comprise the white supremacist slogan in America, that being, “we must secure the existence of our people and a future for WHITE children.” “88” is symbolic for “Heil Hitler”, “H” being the eighth letter of the alphabet. As for the tattoos on the defendant’s fingers, the Iron Cross and the dagger into a skull (the Totenkopf) is Nazi symbolism. The letters “WPWW” are an acronym for “White Pride World Wide”. The pentagon inside the circle with two visible “6s” (with the assumption of a third) signal commitment to paganism.

88. Although there was no report provided by a prescribed terrorism intelligence authority that specifically addressed the statutory criteria, the State relied upon other material as being relevant to this issue. In particular, reliance was placed on the inconsistencies in relation to the defendant’s supposed reform and his breaches of his parole conditions. Those breaches included unauthorised activities on his Facebook account detected in October 2017, 27 February 2018 and on 24 April 2018 (these were addressed in the affidavit of Laura Byrne sworn on 27 June 2018, referenced above at [6]). The State submitted that the defendant’s posting of a Molotov cocktail photograph was an indicator that he continues to support extremist measures to advance an ideology. The State also relied upon the defendant’s more recent internet searches (addressed below at [105]-[124]).

Section 25(3)(f):  past treatment or rehabilitation programs

89. The defendant has participated in the Proactive Integrated Support Model (“PRISM”) program whilst in custody. The PRISM program is designed to assist identified offenders to disengage from extremist groups or behaviours, to desist from support or involvement in offending behaviour and to reintegrate into society. It commenced on a trial basis in February 2016. It focuses on prisoners about to be released to parole. Participation in PRISM is voluntary and prisoners must be found to be eligible for the program.

90. As part of his involvement with the program, the defendant took part in a number of interviews with psychologists during 2017. During those interviews he made a number of disclosures.

91. He was first interviewed on 3 January 2017 at which time he claimed that he was no longer involved in the white supremacist lifestyle and wished to have his tattoos removed. He claimed that he had been threatened in custody when he resisted attempts by other white supremacists to engage with them. When he was asked about the church arson and his ideology he claimed that he had no issue with Christianity and had in fact attended the chapel whilst in custody.

92. When he first joined “Combat 18” he did so because he was attracted to the music but he thereafter became ideologically indoctrinated and started to participate in gang violence. He then joined “Blood and Honour” which was a group that promoted violence against other races and sexualities before progressing to RWR when he was 24 years of age. When he was asked about the 2014 anti-Semitic phone calls, he reported that he was uncertain as to whether he would have followed through with the threats but that other gang members were willing to do so.

93. The defendant claimed that his father had been murdered despite the fact that his mother and sister have both indicated that the defendant’s father is alive and well. When it was later suggested to him that his father was not dead, he claimed to have seen him in the coffin and claimed that his sister and mother had dealt with the situation in a “weird” way.

94. The defendant was also interviewed on seven occasions by a psychologist as part of the PRISM program. Those interviews occurred on 7 March 2017, 15 March 2017, 10 April 2017, 1 June 2017, 14 July 2017, 11 August 2017 and 11 September 2017. The defendant discussed in detail his work with RWR. He also indicated that he would like to be able to smoke cannabis and drink alcohol if released but claimed that he would stay away from anti-social influences.

95. In addition to participating in PRISM, the defendant satisfactorily completed the Explore, Question, Understand, Investigate, Practice, Succeed (“EQUIPS”) addiction program run by NSW Corrective Services. EQUIPS addresses criminogenic needs of those offenders identified at medium to high risk or re-offending.

Section 25(3)(g):  options (if any) available in the community that might reduce the likelihood of the offender re-offending over time

96. These matters are addressed by the experts (see above at [61]-[72]) and the RMR (see above at [83]-[84]). It is anticipated that the supervision of the defendant, employment and his staying away from negative peer influences will reduce the likelihood of him reoffending.

97. In the RAR (discussed above at [73]-[80]), Ms Abreu identified the defendant’s protective factors as being his interests in painting, vintage cars and memorabilia and the fact that he has an interest in music and played in a band. He has also expressed a willingness to engage in services such as the New South Wales police ESP.

Section 25(3)(h): the likelihood that the defendant will comply with the obligations of an ESO

98. This aspect is somewhat difficult to assess in circumstances where the applicant breached his parole and has also more recently pleaded guilty to one count of breaching his ISO.

99. The defendant was first released to parole on to 17 September 2017. A “Breach of Parole” report dated 28 February 2018 recommended revocation on the basis that, despite a written direction on 12 October 2017, the defendant had used Facebook and had posted publicly accessible images depicting “skinheadpride”, “Australian Oi! Skins”, “skin head” and an individual holding what appeared to be a Molotov cocktail. In that report, Laura Byrne (Campbelltown Community Corrections) opined that:

“Progress with supervision has been increasingly difficult given Mr White’s apparent resistance to engage with interventions and overall superficial response. His most recent absence from his job network provider, given his overindulgence of alcohol the night prior, appears indicative of his overall poor attitude to the conditions of his release. In addition to his ongoing avoidance, his recent Facebook posts appear to support [anti-social] attitudes and raises questions of his engagement with [anti-social] peers. Given his failure to adapt to normal community life and abide by the conditions of his release, revocation is recommended.”

100. The report was further endorsed by the manager of Campbelltown Committee Corrections, Ms Nyree-Smith, who said:

“Since being released from custody, Mr White has been afforded an intensive level of assistance from multiple agencies in order to assist him in addressing his criminogenic issues. Despite this, Mr White appears to be unwilling to comply with the requirements that form his conditional release to the community. Given his recent disregard of formal directions identifying his connection to anti-social groups, and his unwillingness to engage with specific treatment, revocation of the order is supported.”

101. However, the defendant’s parole was not revoked. However, he was placed on an ISO when his sentence expired on 17 July 2018. The defendant’s compliance with the ISO is addressed under the following heading.

Section 25(3)(i) the level of the offender’s compliance with any supervision obligations

102. In addition to the Breach of Parole report, I have also had regard to the defendant’s recent supervision on the ISO.

103. On 17 July 2018, police attached to the HRTO Unit searched the defendant’s bedroom in accordance with the ISO conditions and seized a number of items. Those items included business cards for “Arms and Ammo”, “Lakes Army Disposal” and “Newcastle Armoury Military and Sporting Firearms”. There were also a number of books on skinheads, Adolf Hitler, “Gestapo chief” Heinrich Mueller, the Schutzstaffel, “the truth about neo-paganism”, “Auschwitz, the Nazis in the final solution”, “the Birth of the Nazis”, and “Nazi Germany and the Jews”. A number of DVDs were also located including some about Hitler. A crudely sketched swastika had been drawn on the compact disc organiser. Clothing with white supremacist Nazi symbols were also located. It was conceded on behalf of the State that not all of this material post-dated his release on parole.

104. Following the search, the defendant’s computer was examined and his internet history was provided to the Court through the affidavit of Ellen Southwood sworn on 19 September 2018 and exhibit thereto.

105. On the first day of hearing on 21 September 2018, Mr Johnston objected to this material as he had only just received it. The material was produced under s 58 of the THRO and is thus prima facie admissible. The material includes a record of what the defendant had accessed in the period of August 2018 to 7 September 2018. The material was relied upon by the State to show that the defendant has re-engaged with extremist thinking.

106. Mr Johnston submitted that whether the 19 videos that the State relies upon promotes extremist thinking or exists for some other purpose was a “live issue” that goes to the “heart of the risk” and which has the capacity to largely determine whether the full force of the conditions is needed as opposed to a lesser form. During proceedings, Mr Johnston flagged the possibility of seeking an adjournment to get an opinion from an independent expert as to what the videos actually were about and submitted that, in any event, I needed to view them following which I may be able to propose an alternative course. It was my view that it would be open to me to take judicial notice of the context of the videos and that I would consider it further once I had watched the videos.

107. Mr Agius submitted that there was short service of the material because the State only gained access to it when possession of the defendant’s laptop was obtained following his arrest for his ISO breach on 7 September 2018. He submitted that the video clips are relied upon by the State to show that the defendant had maintained contact with extremist culture (not just the music side of skinhead culture) up until the time the laptop was seized, which contradicts his reports that he had walked away from the extremist part of that culture, for example, to Ms Dewson.

108. As mentioned above, the affidavit of Ms Southwood dated 19 September 2018 was read with the Exhibit ES-1. At tab 5 of Exhibit ES-1 is a copy of the defendant’s “Youtube” search and viewing history for the period 2 October 2017 to 7 September 2018 (approximately 13 months). The history sets out the terms of the searches conducted and the title of videos watched along with the associated time and date. This history was obtained by officers of the NSW Police Force from a laptop seized from the defendant’s residence.

109. The USB forming part of Exhibit ES-1 contained two folders labelled “tab 6” and “tab 7”. Tab 6 contains 19 videos which were said to have been “identified and downloaded by officers of the New South Wales Police Force” and provided to the Crown Solicitor’s Office between 18 and 19 September 2018 pursuant to s 58 of the THRO Act. It is however noted that there in fact only 17 different videos as two of the files were duplicates.

110. Tab 7 contains three videos. Those videos were accessed and downloaded from YouTube by staff of the Crown Solicitor’s Office on 19 September 2018. The file names of those videos are as follows:

1. “Aryan – Coonshooting Boogie.mp4”;

2. “Ich Will ADOLF HITLER!!!.mp4”; and

3. “Redneck 28 – This is My Land.mp4”.

111. During the first day of hearing, Mr Agius indicated that the State only relied upon the videos that had been copied over to tabs 6 and 7 of the USB as those videos were of particular concern and relevance to my determination. However, on the second day of hearing, Mr Agius informed the Court that these videos were only a sample of videos that might be relevant to my determination.

112. It was the submission of senior counsel for both the State and the defendant that I needed to watch the 17 relevant YouTube clips in order to properly assess the question of risk in this matter.

113. I watched all of them in Chambers and I also reviewed the YouTube search history set out at tab 5. I make the following observations in relation to this material.

114. One of the videos was a short film by the name of “Blood”. That film involved a skinhead who had been involved in a violent, racist group attempting to break free from those ties after a man of colour had saved his life. Another video by the name of “BANANA BRAIN” depicted a white couple attending a party, taking LSD together and dancing into the night. Those at the party included a number of black persons. While the film was certainly quirky, there was no animosity between any of the party-goers.

115. A further short film titled “THE FENCE” was contained in tab 6 which indicated that it was an “Award Winning Short Film”. This story was about a boy who had purchased a motorcycle which was soon thereafter stolen from the outside of his house. The boy enlisted the help of a black friend to assist in finding the perpetrator. While there was some violence at the end of the film once the bike and offender had been located, there was nothing supporting any extreme racist ideology or hatred towards non-white groups.

116. The worst of the videos in tab 6 was by the name of “Karma”. This film showed the violent attack of a black person at the hands of two young white men. The two men then fought each other as one of them had gone too far by kicking the victim in the head. They thereafter kissed and were then themselves attacked by skinheads due to their homosexual actions. Many interpretations could be made as to the point of this film.

117. A number of the relevant clips included footage of a documentary nature depicting riots between police and skinheads in Europe. There was no commentary in relation to any of this footage and the only acts of violence depicted in them were between police and the skinheads.

118. There were other files of a more concerning nature. As mentioned above, one audio file was named “Aryan- Coonshooting Boogie.mp4” and some of its lyrics were as follows:

“Well, what do you feel like doing tonight, Cooter?

I think we should go shoot us some coons!

Well, come on, let’s go get in the truck!

Let’s go!

Well, let’s shoot them coons, yeah, one by one.

Go to your closets and get your guns.

They’re running our streets and ruining out towns.

It’s so much fun to move them down.

The boys are in the truck and they’re ready to go,

It’s a coon shootin’ boogie, don’t ya know.

The boys are in the truck and they’re ready to go,

It’s a coon shootin’ boogie, don’t ya know.

…”

119. Another file named “Ich Will ADOLF HITLER” was a three minute 43 second video with video footage and picture stills of various aspects of WWII to a Rammstein song, “Ich Will”. It included still images of piles of corpses, persons caught in barbed-wire fences, deceased children and a woman who had been hanged. It also showed a significant amount of footage of armed and marching Nazi forces.

120. Upon reviewing the defendant’s YouTube activity history I noted that a number of somewhat puerile videos had also been viewed by the defendant. These included: “The Farting Snowman”, “Fart and Run 2”, “Fart Wars” and “Farting on Beach Babes 2”. The defendant had also viewed “Mr Bean”.

121. I am of the view that I am permitted to take judicial notice of the fact that when a search item is entered into YouTube, when that particular file is finished, usually another related file will automatically play. On this basis I am satisfied that it is therefore possible that some of videos viewed were not deliberately sought out by the defendant. This is consistent with the videos being played without searches specific to those videos having been conducted. Despite this, I note that the defendant did search for “racist music” and “Ich Will ADOLF HITLER!!!” It is to be inferred that with respect to the latter video, the defendant was aware of its contents as the search was specifically related to it.

122. It is important to note that “Ich Will “ADOLF HITLER!!!” and “Aryan – Coonshooting Boogie.mp4” were accessed on 7 February 2018, approximately 10 months ago. However, the short film “Blood”, which involved a skinhead trying to break away from his violent/racist group following a revelation, was viewed as recently as 7 September 2018. Furthermore, given that these two videos are the ones that raised greater concern as to the defendant’s risk, that concern could be seen as less serious than if they had been more recently.

123. I also note that while the defendant had conducted a number of searches such as “riots between police and skinheads”, “racist music” and “racist prank”, he had also made the following searches: “real big fish”, “baby shark doo doo doo doo” (on a number of occasions), “charles dickens movies full length”, “new dr who” and “fart”.

124. As discussed at [4], on 7 September 2018 the defendant was arrested and charged with five counts of failing to comply with his ISO. He has remained in custody since that time and has pleaded guilty to one count (following negotiations with Police) which is scheduled for sentencing on 10 January 2019.

Section 25(3)(j): the offender’s criminal history 

125. Although the index offence and the offence concerning the telephone calls to the Jewish Museum were serious matters, the defendant has never in fact been convicted of any offences of violence. He has self-reported being involved in such acts to various psychologists and psychiatrists but he has no convictions for such matters.

126. The defendant has no criminal convictions in the Children’s Court. His first conviction was when he was 18 years of age. In January 2009 he was found to have custody of a knife in a public place. The knife was a 28cm meat cleaver. That matter was dealt with under s 32 of the Mental Health (Forensic Provisions) Act on the basis that he had Asperger’s Syndrome. As noted above at [79], the experts have not subsequently agreed as to this diagnosis.

127. In March 2009, only two months later, the defendant was searched in Queen Street in Campbelltown and was again found to be carrying a knife, this time a 27cm kitchen knife. This matter was also dismissed under the Mental Health (Forensic Provisions) Act. On 5 May 2009, the defendant was searched on Park Street in Sydney after being seen on CCTV holding something resembling a knife. He was found to be in possession of razorblades which he claimed were used to cut grip tape for his skateboard. However, no grip tape was located on him so he was charged and fined.

128. On 21 May 2009, the defendant was apprehended for graffiti, carrying a cannabis pipe and razorblades and was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for these offences. On 18 June 2009, he was apprehended in relation to a further graffiti offence at Sydney’s Town Hall. He had tagged a Star of David with shoe polish under the steps to of Town Hall. He was placed on a community service order for malicious damage to property. He subsequently breached that order and was placed on a 12-month bond.

129. In 2010, the defendant was placed on another bond in relation to larceny offences. He was also fined for possessing cannabis at this time. However, there was nothing further recorded on his criminal history until 2013.

130. In May 2013, the defendant was searched in St Helens Park where he was living and was again found to be in possession of a knife. This time it was a 19.5cm knife as well as a mask which he claimed was used for BMX riding. He was fined and placed on a 12-month bond under s 9 of the Crimes (Sentencing Procedure) Act.

131. The first serious offence committed by the defendant was on 24 January 2014 concerning the telephone calls made to the Sydney Jewish Museum. The details of this offending is set out above at [13]. In short, the calls involved anti-Semitic threats of extreme violence and sexual assault which had been recorded on the answering service as the calls were made out of hours. When the defendant was arrested in relation to that matter, he participated in an ERISP. He volunteered certain matters to police including the fact that he had two guns at home. He was subsequently charged with being in possession of three imitation pistols and imitation Uzi machine-gun. He told police that he had used them to play with his nephew. He was placed on a s 9 bond for two years in relation to possession of the imitation firearms and was placed on a s 20 recognizance under the Crimes Act 1914 (Cth) in relation to using a carriage service to menace.

132. On 5 September 2014, the defendant was charged with five counts of unauthorised possession of a prohibited firearm. On 2 February 2015, he was convicted and given two-year bonds under s 9 of Crimes (Sentencing Procedure) Act. On 6 December 2016 those bonds were revoked and another two year s 9 bond was imposed from that day. However, the material before me does not disclose why this occurred.

133. On 11 June 2015, the defendant was charged with malicious damage. It was alleged that he had kicked and broken a number plate on a police vehicle. He was fined in relation to this. Shortly afterwards on 30 July 2015, he was found in possession of stolen DVDs and again placed on a two-year s 9 bond. On 8 December 2015, he stole a bicycle and received yet a further s 9 bond.

134. It was shortly after this on 18 September 2016 that he committed the index offence of burning down the church in Taree. The defendant was in custody between 18 September 2016 and 17 September 2017 at which point he was released on parole.

135. As discussed above at [4], on 7 September 2018 the defendant was arrested and charged with five counts of failing to comply with his ISO and has been in custody since that time. On 7 November 2018, the five counts were reduced to one count to which he formally pleaded guilty to on 16 November 2018. That matter is listed for sentence on 10 January 2019. The practical effect of the defendant being arrested and currently being held bail refused in relation to those Local Court matters is that the ISO previously made is stayed until the defendant is released from custody: see s 28 of the THRO Act.

136. On 1 April 2018 (whilst on parole) he committed further offences.  They include failure to comply with a direction, using offensive language in or near a public school or place and resist or hinder police in the execution of duty.  The defendant is also to be sentenced for those charges on 10 January 2019 following his plea of guilty at Campbelltown Local Court on 16 November 2018.

137. At this point it is unknown when the defendant will be released from custody as he is due to be sentenced in relation to breaching his ISO and the offences mentioned in the preceding paragraph on 10 January 2019.

138. Although the defendant has no prior convictions for drug use (besides possession of a cannabis pipe), he has reported commencing cannabis abuse at age eight and has also abused ecstasy, cocaine, acid and ice. Despite this, his main risk factor appears to be alcohol.

Section 25(3)(k):  the views of the sentencing court

139. The Court was not provided with a copy of the remarks on sentence of the sentencing judge.

Section 25(3)(l):  any beliefs or commitments of the offender that support engaging or participating in terrorism activities

140. The defendant is described by his friend, Mr Bretton, as identifying with Odinism. Odinism is a Norse, non-material, non-Jewish religious stance that venerates a racially pure (i.e. white) set of beliefs and a way of living. In most cases, Odinism is not a practised religion but a set of general beliefs that underpin white supremacist views.

141. The defendant has been involved in white supremacist groups which hold beliefs of racial superiority and racist attitudes towards other cultural or religious groups. Although he rejected those beliefs when he participated in his ERISP in 2016, his text message exchanges at about that time suggest otherwise.

142. An annexure to the affidavit of Detective Sergeant Lukas Sywenkyj dated 27 June 2018 provides information about “Varg Vikernes” - the popular name of a Norwegian black metal musician and writer. The annexyre is in fact a page from “Wikipedia”. In 1994, he was convicted of murder and the arson of a least three Christian churches in Norway. He was sentenced to 21 years imprisonment and was released on parole in 2009. He has been interviewed since his release and indicated that his church arsons were linked to “heathen” motivations because the Christians had desecrated their burial mounds so it was an act of revenge. He is the front man of a “black metal” band called Burzum which released a later album with the burning church on its cover discussed above at [38].

143. It is contended on behalf of the State that the defendant retains an association with white supremacist ideology. Such an association was said to be evidenced by his recent Facebook reactivation and postings in addition to his YouTube searches. It was submitted that the Facebook skinhead, tattoo and Molotov cocktail image posts from February 2018 and the defendant’s apparent continued association with Fatal Illusion or its members shows a continued link with white supremacy ideology. Counsel for the State also referred to the anti-Semitic phone calls made in 2014 which were said to be founded on neo-Nazi aspects of white supremacy ideology. Furthermore, it was argued that the defendant’s beliefs surrounding Odinism suggests an alternative belief system to Christian religion such that he would have a mindset that setting fire to a Christian church is appropriate.

Section 25(3)(m): any other information that is available as to the likelihood that the offender will commit a serious terrorism offence

144. Again, it is to be observed that this consideration overlaps to a significant extent with the previous consideration. The information that the offender may commit a serious terrorism offence is the combination of his previous beliefs and the other risk factors identified by the Court appointed psychiatrist and psychologist. Significantly, he has already committed two offences that are of concern in this regard.

Consideration

145. The determination of whether the defendant should be placed on an ESO ultimately turns on the question of whether I am satisfied to a high degree of probability that the offender poses an “unacceptable risk” of committing a serious terrorism offence if not supervised under the order. The THRO Act is in many respects similar to the CHRO Act, although there are some significant differences. I am satisfied that guidance can be obtained from those decisions where the same statutory language is used.

146. As with the CHRO Act, the phrase “unacceptable risk” is not defined in the THRO Act. It has been held that the phrase "unacceptable risk" in the CHRO Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA).

147. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 (“State of NSW v Pacey”), Harrison J observed (at [43]):

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. 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.”

148. These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

149. In State of NSW v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 the Court (Beazley P, Macfarlan and Leeming JJA) 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.”

150. In State of NSW v Ceissman [2018] NSWSC 508, Rothman J adopted the observations of Harrison J in State of NSW v Pacey (quoted above at [147]) (although preferring the term “insignificant” rather than “very low”) and observed:

“[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”.

[31] 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.

[32] 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.”

151. I have had regard to all of the mandatory considerations set out in s 25 of the THRO Act.

152. Although the conclusion in the RAR was that the defendant posed a low-medium risk of committing extremist violence, that conclusion was based on an acceptance of the defendant’s claims that he has renounced white supremacist links and thinking. Although the material before me discloses that he has made steps to remove himself from his prior association, the breaches and some of the Internet searches suggest that he still holds beliefs of that nature. In mid-February 2018, the defendant disobeyed a formal direction not to access Facebook and resurrected that page, posting photos reflecting his previous anti-social beliefs, with one image depicting a person holding a Molotov cocktail. As discussed above, the defendant has pleaded guilty to one count of breaching his ISO which will be dealt with by way of sentence on 10 January 2019.

153. Although the RAR show that the defendant had successfully participated in the PRISM program, the breaches of his parole in February 2018 occurred after that which casts some doubt as to whether his participation was as successful as was thought at the time.

154. The chronology shows that the defendant burnt the church down at the time when he had been handing out white supremacist flyers in the name of RWR. Although the defendant denied to police that there was any link between these two events, the timing is of concern.

155. In 2014, the telephone calls made to the Sydney Jewish Museum involved threats of extreme violence of an anti-Semitic nature and are to be viewed in the context of the defendant’s long association with white supremacist and neo-Nazi groups. Although he denies that he was a second in charge of RWR in Australia, there is other material to suggest that he was.

156. I have had close regard to the risk factors identified by Ms Dewson. Whether or not the defendant currently retains an interest or association with white supremacy ideology, she has concluded that he is at risk of returning to such ideology if certain risk factors are met. His tattoos make him readily identifiable as at least previously belonging to that milieu. He joined those groups in the first place because of his poor family background and the fact that those groups gave him an acceptance and a sense of belonging. Ms Dewson concluded that he was at risk of committing an offence which could be defined as a serious terrorism effect under the THRO if he were to re- engage with white supremacist groups. The fact that the defendant appears to have limited associations in the community amplified Ms Dewson’s concerns.

157. Ms Dewson’s conclusion was that a two year ESO appeared appropriate but recommended that the conditions reduce in terms of restrictiveness over time. Similarly, Dr Martin’s conclusion was that “it appears clinically reasonable to be of the view that without supervision and support, [the defendant] would be at risk of engaging in extremist behaviour, and potentially offending that would meet the definition of terrorism.”

158. The question is not whether the defendant poses an unacceptable risk of committing a criminal offence if unsupervised. The assessment I am required to make is whether he poses an unacceptable risk of committing a “serious terrorism offence” if not supervised. The specific risk in this matter is whether whilst intoxicated he would cause serious damage to property and/or endanger a person’s life with the intention of advancing an ideological cause and intimidating the public or a section of the public.

159. At the hearing, significant weight was placed on the defendant’s recent YouTube searches. Those searches occurred over a long period of time but the searches more proximate to the hearing before me were largely of a nature that would not cause any concern. Searches in relation to Hitler and Nazism and the videos that were of greater concern specifically drawn to my attention in the affidavit of Ellen Southwood dated 19 September 2018 appeared to relate to the February 2018 period.

160. This is a somewhat unusual application to the extent that, although the defendant has clearly expressed views that are consistent with him committing a terrorist act, none of the offences which make him eligible for this application to be brought by the State involve the actual infliction of any violence. Nor does the defendant have any convictions for violence against any particular person. Although he did carry a weapon for many years, he has told a number of psychologists that that was for protection. In any event, he was fined and placed on good behaviour bonds in relation those offences. Nor was there any material put before the Court to suggest that RWR has ever committed a terrorism act in Australia.

161. As for the statistical assessment of the defendant’s risk, there is an insufficient number of persons who have committed terrorist acts for there to be a statistically sound basis for attempting to estimate the risk of the defendant going on to commit a serious terrorism offence.

162. The defendant has clearly had a most unfortunate childhood of a highly dysfunctional nature. It is his search for belonging that led him to become associated with these white supremacist groups in the first place. The expert evidence before me is that, without supervision, the defendant could again become associated with such groups within which (especially if alcohol is involved) his risk levels significantly increase.

163. I have had regard to all of the material put before me on this application and I am satisfied that unless the defendant is supervised, he poses an unacceptable risk of committing a serious terrorism offence, namely, an offence consistent with his previously held white supremacist views. To some extent, it is not necessary for me to make any finding as to whether he currently holds those views because the fact remains that he previously firmly held them for some time and, as the Court appointed experts have opined, if certain risk factors were present he could easily re-associate himself with those persons and adhere to those beliefs once again.

164. On that basis, I am satisfied it is appropriate to make an ESO in this matter for a period of two years. This course was not objected to by the defendant. This leaves the question of the relevant conditions.

The appropriate conditions

165. Section 29 of the THRO Act provides that I may direct the defendant to comply with such conditions as I consider appropriate some of which are set out under in s 29(1). The conditions that I impose must be specifically designed to address issues relevant to the currently identified risk factors in relation to the commission of a serious terrorism offence, rather than general offending. Moreover, such conditions cannot be unjustifiably onerous or simply punitive. I have had regard to the relevant legal principles extracted at [37]-[46] of Wilde v State of NSW [2015] NSWCA 28 in this respect.

166. In imposing supervision conditions, the Court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.

167. As Beech-Jones J observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]: “[u]sually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender is a high-risk… offender.”

168. Senior counsel for the defendant relied upon the observations of Wilson J in State of New South Wales v Sines (No 3) [2017] NSWSC 985 at [47] where her Honour observed:

“The imposition of particular conditions, and the assessment of the duration of the order, must be determined in light of the general principle that the defendant’s liberty should be constrained to no greater extent that is warranted, having regard to the purposes of the act of the evidence of his personal circumstances.”

169. Objection was made to a number of the conditions sought by the State in this matter. It was submitted on behalf of the defendant that when the Court makes orders leaving matters to the discretion of the ESO team, the ESO team in fact exercises very little discretion at the commencement of the period of the ESO. In support of this submission, senior counsel for the defendant requested that Ms McMillan from the ESO team be made available for cross-examination. She was cross-examined about two separate areas: the defendant’s recent breaches of the ISO and the general discretion to be exercised by the ESO team in relation to conditions such as electronic monitoring.

170. In relation to the recent breaches of the ISO, Ms McMillan agreed that the defendant had never received a written direction from her in relation to the types of written material he was allowed to possess. She stated that she and Ms Kirkwood discussed the conditions of the ISO with the defendant focusing on the link between extremist material that may promote or glorify acts of terrorism or violence but that no written examples were provided.

171. As for the proposed condition that the defendant be electronically monitored, Ms McMillan agreed that he was not required to wear electronic monitoring while he was on parole but did not accept that electronic monitoring would always be imposed if the ESO team is given a discretion in that regard. She accepted that the defendant was put on electronic monitoring on 17 July 2018 which stayed in place until his breach. Ms McMillan said she had discussed with the defendant his breach of electronic monitoring which occurred on 12 August 2018 (deviating from his schedule) the following day but that breaching him for that would be a team decision, not hers. The police had issued a written warning about that deviation. She accepted that the defendant had Snapchat and WhatsApp applications on his phone and that she advised him not to use them as they were not approved but that in accordance with the definitions of the order, he could not delete them.

172. In re-examination Ms McMillan clarified that she was not present when the ISO was explained to the defendant including subsequent discussions as to the meanings of conditions. She said that in her case note on 27 July 2018 she made it very clear to the defendant that Snapchat was not approved and he was only permitted to use Facebook and Messenger. He was told to be mindful not to post “violent and gruesome” words as this would amount to breach of condition 50. The defendant acknowledged his understanding of this.

173. Ms McMillan agreed that she took photos of the books that the defendant had possession of in his room and sent them to her manager and two officers from the

174. In relation to the books that the defendant had possession of, Ms McMillan agreed that she took photos of them in his room and sent them to her manager and two police officers from the HRTO Unit and that she never received instructions as to what to do with them while she was his supervising officer. Mr Johnston submitted that there is an unresolved issue about the books that needs resolving so that there is no further prospect of a breach in relation to that material.

Disputed conditions

175. The following references to proposed conditions are references to those conditions proposed in the amended summons filed on 9 July 2018.

176. There was a significant dispute in relation to the electronic monitoring condition and the requirement that the defendant provide a schedule of movements. It was noted on behalf of the defendant that one of the breaches of the ISO involved no more than going to a takeaway shop for which he was given a written warning on 12 August 2018 and then breached for it on 7 September 2018.

177. Mr Johnston submitted that the identified risks were in relation to the defendant’s internet use and not his movements. He further submitted that other conditions are more than capable to adequately supervise the defendant and that the electronic monitoring is not required and would be too onerous. He added that discretion is never exercised by the ESO team not to use electronic monitoring regardless of the stage the supervised person is at when an ESO is introduced. If electronic monitoring is introduced it would automatically start at the first and most restrictive stage. In other words, the defendant would first need to demonstrate that he is capable of living with it in a law abiding fashion before it would be removed.

178. The alternate position of the defendant was that, if it was thought necessary to impose electronic monitoring, that the Court should impose a sunset clause regarding the duration of such for a period not exceeding six months on the condition that there were no breaches of the ESO.

179. A similar submission was made in relation to conditions 5-8 (schedule of movements). They were objected to as being unnecessary and inappropriate in that they were not relevant to a reduction of risk. It was alternatively put that the Court should impose a “sunset clause” as to their duration as well.

180. Condition 12 was also objected to. It provides that “[t]he defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his EO”, that being, his “Enforcement Officer”. That condition was amended to read: “[t]he defendant must immediately notify his EO of the identity of any person he invites to stay and remain at his approved address without prior approval.” The objection to this condition was that the conditions of non-association and those pertaining to access to the internet are such that there is no need for condition 12 as well.

181. Mr Agius pressed for condition 12 on the basis that conditions requiring the defendant to abide by electronic monitoring, curfews and submitting schedules of movements would not assist in mitigating the risk posed by a negative peer staying overnight at his accommodation. It was submitted that at the very least the EO will need to be alerted to the proposed associate staying overnight so that appropriate checks can be conducted.

182. Proposed condition 28 was objected to and re-drafted by the State with the intention of making it less intrusive. It provides that “the defendant must inform his EO of the identity of any person with whom he does or is likely to regularly associate”. This condition was pressed and it was submitted that it ought not impede the defendant’s opportunity to form new friendships and associations. It was submitted that this is a useful control against the risk that the defendant will fall back into his past associations and reignite and/or support any interest he may have in right wing extremist behaviour. Mr Agius conceded that condition 23 overlaps with some of the other conditions.

183. Condition 16 provided that the defendant could not, without the prior approval of his EO, attend any internet cafes, libraries or other businesses which provide access to internet devices whether for payment or not (other than employment agencies). It was submitted by Mr Johnston this condition was unnecessary as it is not relevant to the reduction of risk, particularly given other conditions that restrict the defendant’s associations.

184. Conditions 18 to 23 were objected to. They pertained to the defendant’s financial affairs. These conditions prohibited the defendant from, for example, from signing leases, mortgages and contracts. After oral submissions were made in relation to these conditions they were not pressed by the State.

185. Condition 25 was also objected to. It provides that “the defendant must not possess or use alcohol without the approval of his EO.” It was submitted on behalf of the defendant that this condition should be to prohibit intoxication rather than social drinking of alcohol per se. The defendant’s position is that he should be able to engage in social drinking without having to seek permission on a day-to-day basis.

186. Condition 33 was initially objected to but the objection was not pressed. It provided that the defendant must not purchase hire or drive any vehicle exceeding a gross vehicle mass of 4.5 tonne or any vehicle which required him to have a licence class of Light Rigid, Medium Rigid, Heavy Rigid, Heavy Combination or Multi Combination within the meaning of cl 5(1)(c) of the Road Transport (Driver Licensing) Regulation 2017 (NSW).

187. Proposed condition 39 was objected to. It provided that the defendant “must provide any code or encryption used to receive or send any form of electronic data or any form of electronic communication in any form.” It was submitted that the defendant could not provide the code or encryption for applications that use built-in encryption. In this respect, the defendant could never comply with this condition. It was further submitted that a condition that the defendant be required to provide his EO with all passwords, pin codes and passcodes used to access all electronic devices, electronic applications and communication platforms of every kind (proposed condition 38) would suffice. In response to this objection, the condition was re-drafted in the following terms:

“The defendant must provide any code or encryption used by the defendant or his behalf to receive or send any form of electronic data or any form of electronic communication in any form.”

188. This condition was pressed by the State in circumstances where proposed condition 38 was in these terms: “the defendant must provide his EO with all passwords, pin codes and passcodes used to access all electronic devices, electronic applications and communication platforms of any kind”. Proposed condition 40 provided that: “the defendant must not use any coded or encrypted messaging application or service”

189. Proposed condition 44 was objected to. It provides as follows:

“The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device.”

190. It was submitted that there is an ambiguity about this condition and the words “without approval from his EO” should be added. That amendment was not objected to by the State.

191. Conditions 54 and 55 were objected to with respect to their form. They proposed to require the defendant to obtain prior approval of his EO to change his appearance and to require the defendant to let his EO photograph him within one week of the commencement of the ESO and every six months thereafter. Senior counsel for the defendant agreed that the word “significantly” should be included, as had been proposed by the State.

192. Finally, condition 62 was objected to. It provided that “[t]he defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his EO, NSWPF and CS NSW.” It was submitted that the condition should be limited to those agencies involved in his supervision. It was submitted that the ordinary presumption of privilege that attaches to health confidentiality should not be waived so that access would be available to the entire New South Wales Police Force and everyone at Corrective Services NSW.

193. Mr Agius in reply submitted that conditions need to be looked at in an overall context and that the context here is that the defendant knew that he had a condition not to use the internet, even when he was on parole, and that he deliberately posted a photograph of somebody in the act of violence knowing that he was breaching that condition. He further submitted that the main issue is the one of trust and that the conditions providing for scheduling of the defendant’s movements and electronic monitoring are there to allow him an opportunity to rebuild the trust that he has lost and that he can do that by complying. He submitted that electronic monitoring is the most significant of the conditions and that it will allow the defendant to gradually rebuild trust and to demonstrate rehabilitation.

194. Mr Agius accepted that the video clip material was mostly accessed before the ISO was imposed but there was some further searching online after the imposition of the ISO.

Conclusion regarding conditions

195. I have had regard to the detailed submissions in relation to the appropriate conditions to be imposed as part of the ESO in this matter. I have also had regard to the relevant principles stated above. In particular I have had regard to the relevant risk factors, the defendant’s longstanding involvement in white supremacist groups and his complex mental health history.

196. The main area of dispute was the need for electronic monitoring. I have given consideration to the careful submissions made by Mr Johnson in this regard. I am aware of the fact that the breach of his ISO in relation to the monitoring was of a minor nature. Mr Johnston submitted, based on the evidence of Ms McMillan, that the ESO team do not use the discretion imposed upon them by the Court. He relied upon the evidence of Ms McMillan that she was not aware of any case in which an offender had not been placed on electronic monitoring once the discretion to do so had been given to them by the Court.

197. It is to be accepted that when the defendant was released from custody on parole he was not required to have electronic monitoring as part of his parole conditions. Despite this, Schmidt J imposed the condition as part of his ISO. If the defendant had shown compliance with the monitoring on his ISO for some period of time it may well have been appropriate not to include electronic monitoring as a condition. The difficulty is that the defendant has been back in custody where it appears he is likely to remain until at least January 2019. Also, it is to be noted that both of the Court appointed experts recommended electronic monitoring but with reduced restrictiveness over time.

198. I am satisfied that it appropriate to provide a condition that the defendant be electronically monitored for a short time upon his release. I propose to adopt the defendant’s alternate position. Accordingly, I propose to impose a condition of electronic monitoring for a period not exceeding six months. I do not consider it necessary to impose that condition be subject to there being no breaches of this condition within that time. If the defendant breaches that term of his ESO he can no doubt be sanctioned for that breach by the ESO team.

199. A number of conditions and objections to them were not pressed during the hearing in this matter, such as whether the defendant could be prevented from driving a heavy vehicle.

200. I do not propose to impose proposed condition 12. I am satisfied that it is already covered by other conditions including the non-association conditions and proposed condition 23, which provides that the defendant must inform his EO of the identity of any person with whom he does or is likely to regularly associate.

201. I propose to impose proposed condition 16 in relation to requiring prior approval to attend an internet cafe. The experts identified internet access as a major risk and I am not satisfied that this condition is unduly onerous. It directly addresses one of the relevant risk factors.

202. I propose to impose a condition that the defendant is not to consume alcohol without the permission of his EO. Although I understand his preference for being able to drink some alcohol without having to seek the permission of his EO, the fact remains that both of the serious matters that have led to this application being made occurred when he was intoxicated. The discretion rests with his EO in relation to this issue.

203. I do not propose to impose any condition regarding the provision of encryption details for two reasons. First, I do not consider it would be possible to strictly comply with that in its present terms as the defendant would not be in a position to know the details of any inbuilt encryption service. The second reason is that I am satisfied that the relevant risk the condition is sought to meet is covered by proposed conditions 38 and 40 extracted above at [188].

204. As for proposed conditions 54 and 55, I am satisfied it is appropriate that the defendant not significantly change his appearance without the approval of his EO and that he must be photographed not only within a week of commencement of this ESO but also following any “significant” changes to his appearance.

205. As for proposed condition 62, although I accept the concerns raised about the defendant’s privacy, I am satisfied that, if the sharing of information between agencies involved in his supervision was restricted to specific persons that difficulties as to, inter alia, the access to and management of the relevant records could arise. I am satisfied that the relevant government agencies would be aware of the relevant privacy obligations in any event.

206. I otherwise agree with all of the amendments suggested by Mr Johnston and consider it necessary to impose all of the remaining orders which were still pressed by the State.

207. When Schmidt J imposed the ISO in this matter her Honour referred to the observations of Button J in State of NSW v Keith Farringdon [2018] NSWSC 874 at [46]. There his Honour said that it is to be expected that the departmental supervising officers will approach those responsibilities “in a common sense way, informed by a practical and constructive exercise of discretion”. I am mindful of the concerns raised by senior counsel for the defendant about the strict approach taken to ESO conditions at the outset of the ESO. Despite this, it is to be presumed that the relevant discretion will be exercised consistent with the purposes of the THRO Act.

orders

208. In consideration of the above, I make the following orders:

1. Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is to be supervised under an extended supervision order for a period of two years from the date of this order.

2. Pursuant to s 29(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW), the defendant is to comply with the conditions set out in the Schedule to this judgment for the duration of the extended supervision order.

3. Access to the Court file in these proceedings is restricted such that access would only be permitted to a non-party with the leave of a Judge of this Court and with prior notice to the parties so as to allow them to be heard in respect of the application for access.

SCHEDULE OF CONDITIONS OF SUPERVISION

In these conditions:

“CSNSW” means Corrective Services NSW.

“EO” means Enforcement Officer or any other person supervising the defendant under the order.

“Extremist material” means:  

1.   material that a reasonable person would understand to be:

a.   directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts; or

b.   seeking support for, or justifying, the carrying out of terrorist acts; or

2.   material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation.

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

“Material” includes:

1.   any written or printed material;

2.   any picture, painting or drawing;

3.   any carving, sculpture, statue or figure;

4.   any photograph, film, video recording or other object or thing from which an image may be reproduced;

5.   any computer data or the computer record or system containing the data; and

6.   any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Order” means the interim supervision order or extended supervision order under the Terrorism (High Risk Offenders) Act 2017 (NSW) to which the defendant is subject.

"Pat-down search" means a search of a person where the person's clothed body is touched.

“Serious offence” means an offence that is punishable by imprisonment for a term of 5 years or more.

“Terrorist act” has the same meaning in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where:

1.   The action:

a.  causes serious harm that is physical harm to a person;

b.  causes serious damage to property;

c.  causes a person’s death;

d.  endangers a person’s life, other than the life of the person taking the action;

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;

ii.   a telecommunications system;

iii.  a financial system;

iv.  a system used for the delivery of essential government services;

v.   a system used for, or by, an essential public utility; and

vi.  a system used for, or by, a transport system; and

2.   the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;

3.   the action is done or the threat is made with the intention of:

a.  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

b.  intimidating the public or a section of the public; and

4.   the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person’s death, endanger the life of a person, or create a serious risk to the health and safety of the public.

“Terrorist organisation” has the same meaning it has in Division 102.1 of part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of NSWPF and CSNSW until the end of the Order.

2.   The defendant must report to his EO as reasonably directed.

3.   The defendant must follow all reasonable directions by his EO.

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by his EO for a period not exceeding six months 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.

8.   The defendant must truthfully answer questions from his EO about where he is, where he is going and what he is doing.

Part B: Accommodation

9.   The defendant must live at an address approved by his EO and must notify his EO of any subsequent changes to his living arrangements.

10.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his EO.

11.   The defendant must allow his EO to visit him at his approved address at any time, and for the purposes of monitoring compliance with this Order, to enter the premises at that address.

Part C: Place and travel restrictions

12.   The defendant must not leave New South Wales without the approval of his EO.

13.   The defendant must surrender any passports held by the defendant to his EO.

14.   The defendant must not go to a place if his EO tells him that he cannot go there.

15.   In addition to, and without limiting conditions 12 to 14 listed above, the defendant must not go without the prior approval of his EO to any internet cafes, libraries, or other businesses which provide access to internet devices, either for payment or for no charge (other than employment agencies).

Part D: Employment, finance and education

16.   The defendant must not start any job, volunteer work or educational course without the approval of his EO.

Part E: Drugs and alcohol

17.   The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.

18.   The defendant must not possess or use alcohol without the approval of his EO.

19.   The defendant must submit to testing for drugs and alcohol as directed by his EO.

Part F: Non-association

20.   The defendant must not associate, contact or communicate with any persons specified by the EO.

21.   Without limiting condition 20, the defendant must not

a.  associate with or otherwise affiliate with any persons or with any organisations supporting or engaging in any terrorists acts;

b.  associate with people who are consuming or under the influence of illegal drugs;

c.  attend, enter or seek to enter any custodial facility, or place where prisoners are held, or juvenile place of detention without prior approval of his EO; and

d.  contact, attempt to communicate or otherwise associate with any person held in custody as a sentenced prisoner, or held on remand bail, or held in juvenile detention without prior approval of his EO.

22.   The defendant must inform his EO of the identity of any person with whom he does, or is likely to, regularly associate.

23.   The defendant must obtain written permission from his EO prior to joining or affiliating with any musical band/group, club or organisation, including any internet or mobile based social networking service.

24.   The defendant must not engage in any act, or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.

Part G: Weapons

25.   The defendant must not possess or use any dangerous implements, including:

a.  a firearm, firearm part or ammunition within the meaning of s. 4 of the Firearms Act 1996 (NSW);

b.  a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 (NSW), or

c.  a spear gun;

d.  without his EO’s approval, an article or device, not being such a firearm, capable of discharging by any means:

(i)   any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or

(ii)  any substance capable of causing bodily harm;

e.  any explosive substance intended, by the person having custody of the thing, to be used in an explosive device;

f.  a fuse capable of use with an explosive or a detonator, or a detonator, where the item is intended by the person having custody of the thing, to be used as a fuse or detonator for an explosive device, as the case may be;

g.  a knife without reasonable excuse;

h.  any other implement made or adapted for use for causing injury to a person;

i.  anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or

j.  a laser pointer.

Part H: Vehicles

26.   The defendant must not, without the approval of his EO, purchase, hire or drive any vehicle:

a.  exceeding a gross vehicle mass of 3 tonne; or

b.  the lawful driving or operation of which requires the driver or operator to have a licence class of Light Rigid, Medium-Rigid, Heavy-Rigid, Heavy Combination or Multi-Combination within the meaning of cl. 5(1)(c) of the Road Transport (Driver Licensing) Regulation 2017 (NSW).

27.   The defendant must tell his EO of the make, model and registration of any vehicle registered to the defendant or that the defendant intends to drive.

Part I: Access to the internet and other electronic communication

28.   The defendant must give his EO a list of all devices, services and applications he uses to communicate with or to access the internet and advise his EO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

29.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed in accordance with condition 28, and the device has been seen and approved for use by his EO.

30.   The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

31.   The defendant must provide his EO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications and communication platforms of any kind.

32.   The defendant must not use any coded or encrypted messaging application or service.

33.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of his EO, including but not limited, to use of internet-based email, instant messaging services, online community services and other telecommunications-based services including text and voice services.

34.   The defendant must provide consent for his EO (or any other person requested by his EO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.  

35.   The defendant must obey any reasonable directions by his EO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet and certain internet content.

36.   The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without approval from his EO.

37.   The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with his EO.

Part J: Search and seizure

38.   If the EO reasonably believes that a search (of the type referred to in sub-paragraphs e to h below) is necessary:

a.  for the safety and welfare of residents or staff or persons nt’s approved address;

b.  the welfare or safety of any member of the public or any other person;

c.  to monitor the defendant’s compliance with this order; or

d.  because the EO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

   then the EO may direct, and the defendant must submit to:

e.  search and inspection of any part of, or anything in, the defendant’s approved address;

f.  search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant;

g.  search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

h.  search and examination of his person.

39.   For the purposes of the above condition:

a.  a search of the defendant means a garment search or a pat-down search; and

b.  to the extent practicable a pat-down search will be conducted by a EO of the same sex as the defendant, or by an Officer of NSWPF or CSNSW of the same sex as the defendant under the direction of the EO.

40.   During a search carried out in accordance with condition 38, the defendant must allow the EO (or any other person requested by the EO) to seize anything found, whether in the defendant's possession or not, which the EO reasonably suspects will compromise:

a.  the safety of residents or of staff at the defendant's approved address;

b.  the welfare or safety of any member of the public or any other person; or

c.  the defendant's compliance with this order; or

d.  which the EO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

41.   The defendant must allow his EO to search any phone, tablet device, data storage device or computer that he may use.

42.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 38-41 above.

Part K: Access to violent and extremist material

43.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

a.  material which has been refused classification or is classified as “Refused Classification;

b.  material classified as R18+ (for reason of violence) unless permitted by the EO; or

c.  other material as directed by his EO for reasons related to concerns regarding violence; or for reasons related to his risk of committing a serious terrorism offence (including extremist material).

Part L: Personal details and appearance

44.   The defendant must not change his name from “Ricky White” or use any other name without notifying his EO.

45.   The defendant must not use any alias, log-in name, or a name other than “Ricky White” or use any email address other than those known to his EO in accordance with condition 30, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

46.   The defendant must not significantly change his appearance without the approval of his EO.

47.   The defendant must let his EO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

48.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide his EO with such details.

Part N: Medical intervention and treatment

49.   The defendant must notify his EO of the identity and address of any healthcare practitioner that he consults.

50.   The defendant must attend, upon the direction of his EO, any psychological or psychiatric assessments, therapy sessions, disengagement services, support or treatment programs the subject of the direction.

51.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

52.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his EO within 24 hours of ceasing to take the medication.

53.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his EO.

54.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his EO, NSWPF and CSNSW.

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Decision last updated: 14 December 2018