State Seeks Continuing Detention Order Against High Risk Offender
State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076 (26 August 2021)
An application for an interim detention order was sought by the State against the defendant for violation of the Firearms Act. The defendant has committed further offences in custody of producing child abuse material. Holding that the defendant poses an unacceptable risk, the State sought a continuing detention order and in the alternative, an extended supervision order.
Facts:
The defendant holds neo-Nazi and fundamentalist Christian beliefs. The defendant is in custody in respect of NSW firearms offences and Commonwealth child pornography offences he was charged with on 10 September 2015. On 22 July 2021, a preliminary hearing was conducted. Mr Paul McGuire SC and Mr Jake Harris of counsel appeared for the State and Mr Troy Anderson and Mr Jonathan Wilcox of counsel appeared for the defendant. The State sought an interim detention order for a period of 28 days along with psychiatric and psychological examinations for the defendant.
The defendant was sentenced to six years of imprisonment for possession of an unauthorised prohibited firearm, three unregistered firearms, and for manufacturing firearms without a licence. The sentence commenced on 10 September 2015 and will expire on 9 September 2021. The defendant’s non-parole period of 3 years and 6 months imprisonment expired on 9 March 2019. On 6 July 2021, the State of New South Wales sought a continuing detention order against the defendant through summons.
In the alternative, an order is sought that the defendant be subject to an extended supervision order.
Issues:
I. Whether or not a continuing detention order or extended supervision order should be made.
II. Whether or not the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention.
Applicable law:
Crimes (Sentencing Procedure) Act 1999 (NSW) s 33 - provides that when dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
Crimes Act 1900 (NSW) s 91H - provides the definition for production, dissemination or possession of child abuse material.
Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 13B, 18A - defines "offender", provides for the application for a continuing detention order, and an interim detention order.
Criminal Code (Cth), Part 5.3 - 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 a terrorist organisation (s 102.3), recruiting for a terrorist organisation (s 102.4), associating with terrorist organisations (s 102.8) and so forth.
Firearms Act 1996 (NSW), ss 7(1), 51D(2), 50A(1) - prohibits the possession of an unauthorised prohibited firearm, more than three unregistered firearms, and manufacturing firearms without a licence.
Interpretation Act 1987 (NSW), s 34 - provides for the use of extrinsic material in the interpretation of Acts and statutory rules.
Terrorism (High Risk Offenders) Act 2017 (NSW) s 41, 42(1) ,49(1), 38(5) - 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.
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 - provides that the phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act.
State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 - where it was held that the definition of a terrorist act under s 100.1 of the Criminal Code is broad and encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property.
State of New South Wales v Elmir (Final) [2019] NSWSC 1867 - where it was discussed that ‘extremism’ is the holding of extreme political or religious views; fanaticism’. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views.
State of New South Wales v Elmir [2019] NSWSC 263 - it was submitted in this case that the Court should decline to grant the THRO orders on the basis of futility as it was anticipated that the defendant would receive a lengthy term of imprisonment in respect of the Commonwealth offences, which carried a maximum penalty of life imprisonment.
State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101 - where Fullerton J declined to exercise the residual discretion not to grant the order due to the additional sentence imposed and the fact that the orders would be suspended during that term of imprisonment.
State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 - it was held that at a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing.
Turner v State of New South Wales [2019] NSWCA 164 - provided the proposition that an offender need not be subject to “current custody” at the time an IDO is made (provided that there are proceedings on foot for a CDO).
Analysis:
Section 39(2) of the THRO Act provides that in determining whether or not to make an CDO, the safety of the community “must be the paramount consideration of the Supreme Court.” The Court may only impose a CDO or an ESO if it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention or under supervision. In the case at bar, it was shown that the defendant has held neo-Nazi and white supremacist views since adolescence. He is capable of manufacturing firearms from widely available materials.
In the Risk Assessment Report provided by Ms Czerkies, a Senior Psychologist/Therapeutic Manager in Countering Violent Extremism (CVE) Programs, he exhibited behavioural difficulties at an early age. They took the form of poor emotional and general self-regulation (irritability, threats of self-harm, difficulty concentrating), interpersonal difficulties (being shy and timid, “showing off”, not getting along with other children his age), verbal and physical aggression and violence (harassing, bullying and physically harming others, setting fires, destroying things) and inappropriate sexual behaviour (frequent masturbation, including in public).
Conclusion:
The Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention. The Court ordered that the defendant be subject to an interim detention order for a period of 28 days commencing from 9 September 2021. A warrant is ordered to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order. The defendant is ordered to attend psychiatric and psychological examinations with the Court appointed qualified psychiatrist and a registered psychologist.
