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Defendant Opposes Continuing Detention Order

Minister for Home Affairs v Benbrika (First review) [2022] VSC 169 (6 May 2022)

The defendant received a total effective sentence of 15 years’ imprisonment, with a non-parole period of 12 years for intentionally being a member of, and directing the activities of, a terrorist organisation.  The Court made a continuing detention order against the defendant.  The Court, in determining whether the CDO should be affirmed, assessed the risk the defendant poses. 

Facts:

Between mid-2004 and late 2005, the defendant, Abdul Nacer Benbrika, was the leader of a terrorist organisation, whose members were preparing to commit a violent terrorist act, in order to advance Islamic ideology.  In September 2008, Mr Benbrika was found guilty by a jury of intentionally being a member of, and directing the activities of, a terrorist organisation.   Six of his co-offenders were found guilty of belonging to the same terrorist organisation.  In February 2009, Mr Benbrika received a total effective sentence of 15 years’ imprisonment, with a non-parole period of 12 years.

Mr Benbrika was not granted parole.  His sentence expired on 5 November 2020.  Shortly before the expiry of his sentence, the Minister for Home Affairs applied to this court for a continuing detention order (“CDO”).  On 27 October 2020, Tinney J made an interim detention order (“IDO”), which began on 5 November 2020, on the expiry of the sentence.  On 25 November 2020, his Honour made a further IDO, with effect from 3 to 30 December 2020.

On 27 October 2020, Tinney J made an interim detention order (“IDO”), which began on 5 November 2020, on the expiry of the sentence.  On 25 November 2020, his Honour made a further IDO, with effect from 3 to 30 December 2020.  The effect of the IDOs and CDO was to commit Mr Benbrika to detention in a prison, for the period of the respective order.  Tinney J made the CDO because he was satisfied to a high degree of probability that Mr Benbrika posed an unacceptable risk of committing a relevant offence, and there was no less restrictive measure available that would be effective in preventing that risk.

On 9 November 2021, the Court of Appeal dismissed Mr Benbrika’s appeal against the making of the CDO.  The Minister began the review process by filing the originating motion on 3 September 2021.  On 21 October 2021, Tinney J acceded to an application by Mr Benbrika that he recuse himself from hearing the review application.  The review hearing was listed to begin on 8 December 2021. In the lead up to the listed date, it became apparent that the Code was about to be amended, to introduce extended supervision orders (“ESOs”) as a less restrictive measure than CDOs. 

The Minister seeks to have the CDO affirmed on its current terms.  Although the Minister accepts that, in some respects, Mr Benbrika has made some recent progress, she argues that it is not sufficient to reduce the risk he poses to an acceptable level.  The Minister also argues that any progress that Mr Benbrika has made has occurred in a strictly-controlled custodial environment, and there is a very real risk that, if released into the community, he could return to his previous behaviour.  The Minister argues that replacing the CDO with an ESO would not be sufficient to reduce Mr Benbrika’s risk to an acceptable level.

Issue:

Whether or not the CDO should be affirmed. 

Applicable law:

Benbrika v The Queen [2010] VSCA 281(2010) 29 VR 593 -  where Mr Benbrika succeeded in appealing against one of the convictions in 2010, although his total effective sentence and non-parole period remained the same.

Criminal Code Act 1995 (Cth) Division 105A - permits CDOs to be sought on application by the “AFP Minister”.

Criminal Code Act 1995 (Cth) s 100.1 - defined "AFP Minister" as the minister administering the Australian Federal Police Act 1979 (Cth). 

Minister for Home Affairs v Benbrika [2020] VSC 888 (“the CDO reasons”) - where Tinney J made a CDO for a period of 3 years, beginning that day and ending on 23 December 2023. 

Benbrika v Minster for Home Affairs [2021] VSCA 303 (“the CoA reasons”) - where the Court of Appeal dismissed Mr Benbrika’s appeal against the making of the CDO. 

Minister for Home Affairs v Benbrika (No 2) [2021] VSC 684 - where Tinney J acceded to an application by Mr Benbrika that he recuse himself from hearing the review application. 

Minister for Home Affairs v Benbrika [2021] HCA 4(2021) 95 ALJR 166 - where the High Court has described the power to make a CDO as “an extraordinary power to detain a terrorist offender in prison notwithstanding that the purposes of punishment have been vindicated and the sentence served.” 

Nigro v Secretary to the Department of Justice (“Nigro”) [2013] VSCA 213(2013) 41 VR 359.  - where the Court of Appeal described the concept of unacceptable risk as a flexible one, which is calibrated to the nature and degree of the risk, so it can be adapted to the particular case. 

Minister for Home Affairs v Benbrika [2021] HCA 4(2021) 95 ALJR 166 at [47] - provides that the risk of offending must carry a threat of harm to members of the community that is sufficiently serious as to make the risk of the commission of the offence unacceptable to the court. 

Benbrika v The Queen [2010] VSCA 281(2010) 29 VR 593 - where the Court of Appeal allowed Mr Benbrika’s appeal against one of the three convictions, namely for being in possession of a thing connected with a terrorist act knowing of that connection.

NSW v Donovan [2015] NSWCA 280 - where the NSW Court of Appeal has held that the rules do not apply in the context of a similar application for a continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW). 

Hardy v State of New South Wales [2021] NSWCA 338 - relied upon in holding that the court does not have the benefit of a direct explanation from Mr Benbrika on his oath, which can be tested by the Minister and observed by the court, in relation to important matters such as his ideology.

Lee v Benbrika [2020] FCA 1723 - where the Federal Court made an interim control order under s 104.4 of the Code. 

Analysis:

The task for the court on a review is to determine whether, at the time of its decision, on the basis of admissible evidence adduced on the review, the court is satisfied of the matters in s 105A.12(4)(a).  If it is satisfied of those matters, it may affirm the CDO. The court also needs to determine whether the remaining period during which the CDO is in force is reasonably necessary to prevent the unacceptable risk.  The legislation has been drafted in a way that enables the parties to seek to revisit all the intermediate evidentiary findings of previous judges.  The correct approach is to undertake the necessary risk assessment at the later point in time, unfettered by Tinney J’s intermediate fact findings.

Mr Benbrika argues that the word “community” refers only to the Australian community, as that is the community into which he would be released if an ESO was made in place of the CDO.  However,  there is no basis for imposing such a geographical limitation on the concept of “the community”.  Part 5.3 of the Code is plainly intended to operate both inside and outside Australia, and the terrorism offences in that Part can involve conduct or results which occur, partly or wholly, outside Australia.  Mr Benbrika was in his mid-40s at the time of the offending.

He exercised enormous influence over the many young men who followed him, and he imbued or sought to imbue in them a fanatical hatred of both non-Muslims and the vast majority of Muslims who abhor violence.  The offending occurred over an 18 month period.  Dr Dewson has reduced her assessment of the risk posed by Mr Benbrika from “high” to “moderate-high”.   Given that Dr Dewson has described the changes as relatively new, and has said that change takes some time, it may reasonably be doubted that the risk will become acceptable at any time in the near future.

Conclusion:

The Court affirmed the CDO.  The Court concluded that Mr Benbrika poses an unacceptable risk of committing a serious Part 5.3 offence; that there is no less restrictive measure than a CDO available that would be effective in preventing the unacceptable risk posed by Mr Benbrika; that the period for which the CDO is in force is reasonably necessary to prevent the unacceptable risk. 

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