Defendant Charged with Opposes Extended Supervision Order

State of New South Wales v Hardy (Final) [2021] NSWSC 900 (26 July 2021)

In 2017, the Defendant committed offences contrary to the Crimes Act 1900, Firearms Act 1996 and s.36 Weapons Prohibition Act 1998.  An extended supervision order (“ESO”) was issued upon the defendant. The Court, in deciding whether or not the defendant should be subject of the extended supervision order examined the risks he posed. 

Facts:

Over a period of time in 2016 and 2017, the Defendant made multiple posts on LinkedIn indicating knowledge of and apparent support for the Sovereign Citizens Movement ("SCM").  Comments made by the Defendant in these LinkedIn posts include strong sentiments adverse to politicians and the Australian Government and had the flavour of SCM beliefs in the illegitimacy of government.  It was submitted that the evidence indicated that the Defendant was suffering from transient delusions at the time of the index offence so that, whilst he was labouring under those delusions, he would have been incapable of advocating support

On 1 April 2021, Harrison J made an order for examination of the Defendant by a qualified psychiatrist and a registered psychologist together with a direction that the Defendant comply with an interim supervision order ("ISO") subject to specified conditions.  An extended supervision order (“ESO”) under the THRO Act has been ordered on a prior occasion with respect to the Defendant.  Following the order made by Harrison J on 1 April 2021, Dr Ellis and Dr Lennings examined the Defendant and provided reports to the Court.  The Court made orders under s.24(5) THRO Act appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Court as to the results of those examinations and directing the Defendant to attend those examinations.  Mr Emmett SC elicited evidence that the legal representatives for the Defendant had spoken to each of Dr Ellis and Dr Lennings after each of them had furnished his report, but prior to the final hearing.  The defendant is allegedly linked to the SCM as per certain features in his affidavits.  For instance, how he writes his name. 

Issue:

Whether the Defendant should once again be dealt with under the THRO Act.

Applicable law:

Crimes Act 1900 (NSW) s.31 - provides that a person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Firearms Act 1996 (NSW) ss.36 and 51F(1) - prohibits possession of an unregistered firearm. 

Weapons Prohibition Act 1998 (NSW) s.36 - prohibits unauthorized possession or use of pistols or prohibited firearms. 

Terrorism (High Risk Offenders) Act 2017 s.10(1)(c)(i) and s.20(c)(iii) - provides for the grounds from which one could be considered an NSW terrorism activity offender. 

Analysis:

Dr Lennings stated that it was not his view that the Defendant posed a current risk of committing a serious terrorism offence.  He did not believe that the Defendant will engage in conduct that will amount to a serious terrorism offence.  Dr Ellis considered that the most likely explanation for the Defendant’s behaviour at the time of the index offence was that he was suffering from a transient delusional state. 

The Plaintiff submitted that the Defendant previously made a statement advocating support for violent extremism. The Defendant argued that the term “advocating support” directs attention to the intention or purpose of conduct. To show “support” for a terrorist or violent extremism, it was submitted, requires active approval or encouragement.

Conclusion:

The Court ordered that the Defendant be subject to an extended supervision order for a period of eighteen months from 28 July 2021 to expire on 27 January 2023. The Defendant is directed for the period of the extended supervision order, to comply with the conditions set out in the Schedule in the judgment.