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Supreme Court 16 January 2019

State of NSW v Mathers

[2019] NSWSC 7

Firearms & weaponsPublic order & justice offences
HIGH RISK TERRORISM OFFENDER PRELIMINARY HEARING SOVEREIGN CITIZEN MOVEMENT

Citation: State of NSW v Mathers [2019] NSWSC 7
Court: Supreme Court of New South Wales
Date: 16 January 2019
Judge: Button J

Background

The defendant (identified by the pseudonym John Mathers) was a 46-year-old Newcastle jewellery-maker serving a sentence of imprisonment in the Local Court. He had pleaded guilty to sending threatening correspondence to a NSW opposition MP, possessing prohibited weapons, and possessing an unregistered firearm. A police search of his premises in 2017 had uncovered extensive Sovereign Citizen Movement material, documents about manufacturing explosives and booby traps, and prohibited weapons.

Further investigation revealed that the defendant had downloaded blueprints for manufacturing plastic firearms using a 3-D printer, purchased a pressure cooker, and accessed a YouTube video titled "See the Difference Between Pipe Bombs and Pressure Cooker Bombs." He faced additional charges arising from those downloads and was held in custody on both his original sentence and those pending charges.

The State of New South Wales applied under the Terrorism (High Risk Offenders) Act 2017 (NSW) for a 28-day interim detention order (IDO), and in the alternative, an interim supervision order (ISO), together with an ancillary order for psychiatric and psychological examinations.

Legal Issues

  • Whether the statutory preconditions for making any order under the Terrorism (High Risk Offenders) Act 2017 (NSW) were satisfied, particularly whether the defendant qualified as a "convicted NSW terrorism activity offender"
  • Whether the threatening correspondence sent to the MP constituted a statement advocating support for a "terrorist act" as defined in s 100.1 of the Commonwealth Criminal Code
  • Whether the correspondence constituted a statement advocating support for "violent extremism" under s 10(1)(c)(i) of the Act
  • Whether, if the statutory preconditions were met, the evaluative threshold for making an interim order was established
  • Whether an IDO (full deprivation of liberty) or an ISO (restricted liberty) was the appropriate form of order

Decision

Issue 1: Whether the letters to the MP constituted advocacy of a "terrorist act"

Button J held that the threatening correspondence did not constitute a statement advocating support for a terrorist act as defined in s 100.1 of the Commonwealth Criminal Code. The court accepted that the letters advocated support for serious physical harm accompanied by an ideological purpose, but found that the remaining element under s 100.1(1)(c) was not established (at [45]-[53]). Specifically, the court held that sending threatening material to an opposition member of Parliament did not amount to an intention to coerce or influence by intimidation a "government," because Parliament is not the same as the executive government, and there was no other convincing evidence of that intention (at [49]-[51]). The court also found that an individual MP, even as a target, does not constitute "a section of the public" for the purposes of s 100.1(1)(c)(ii) (at [52]).

Issue 2: Whether the letters constituted advocacy of "violent extremism"

The court found the preconditions were met on this alternative basis. Button J concluded that by sending the envelopes, which accused the MP of treason, declared a "sentence" of death by hanging, and denied any mercy, the defendant had made a statement advocating support for violent extremism under s 10(1)(c)(i) of the Act (at [60]-[62]). The court was not satisfied that the specific Sovereign Citizen Movement sub-provision in s 10(1A)(a)(iii) was established, because the evidence did not clearly show that the Movement as a whole actively promotes violence or explicitly supports violent extremism (at [57]-[58]). However, the more general provision in s 10(1)(c)(i) was satisfied independently of that sub-paragraph (at [59]-[63]).

Issue 3: Whether the evaluative threshold for an interim order was met

Button J was satisfied that a subsequent judge of the Court could find an unacceptable risk that the defendant might commit a serious terrorism offence in the future (at [69]-[77]). The court identified seven factors supporting that conclusion: the defendant's adherence to Sovereign Citizen Movement ideology (at [70]); the threatening letters to the MP (at [71]); the downloading of material about causing death in military settings (at [72]); the blueprints for manufacturing plastic firearms accessed by a man who had a 3-D printer (at [73]); the possession of the pressure cooker in the context of the YouTube video (at [74]); possible psychiatric or psychological impairment (at [75]); and the risk that, without an order, the defendant might proceed to threaten or commit a terrorist act in the future even if past conduct fell short of one (at [76]).

Issue 4: IDO or ISO

Button J declined to make an IDO and instead imposed an ISO. The court identified seven reasons: the defendant had no prior convictions for physical violence (at [83]); the pending criminal proceedings were unlikely to resolve within 28 days, meaning any order would operate alongside strict bail conditions (at [84]-[85]); the defendant's parents had undertaken to house and closely monitor him (at [86]); there was no evidence he had actually attempted to manufacture any weapon or device despite having the materials (at [87]); the overall picture was of an isolated, mentally unwell individual rather than an organised or resourced actor (at [88]); and during the hearing the defendant was respectful and did not repudiate the court's jurisdiction, suggesting a degree of reflection on the consequences of his conduct (at [90]). The court accepted that a rigorous ISO, combined with anticipated strict bail conditions, would sufficiently protect the community during the interim period (at [89], [91]).

Issue 5: Contested conditions of the ISO

The court upheld all disputed conditions of the proposed ISO, including a 9 pm to 6 am curfew, restrictions on visitors, location restrictions, limits on paid or voluntary work and education, and prohibitions relating to substance use (at [92]-[98]). The court reasoned that the rejection of an IDO depended substantially on the ISO being extremely rigorous in its terms.

Orders Made

  • An order appointing one qualified psychiatrist and one registered psychologist to conduct separate examinations of the defendant and furnish reports to the Court by a date to be fixed
  • An interim supervision order for 28 days from the date of the order, with conditions including curfew, visitor restrictions, location restrictions, internet access limitations, and substance use prohibitions as set out in the Schedule to the Summons
  • An order restricting court file access to non-parties, requiring leave of a judge and prior notice to the parties before access is granted

Key Takeaways

  • Under the Terrorism (High Risk Offenders) Act 2017 (NSW), a statement advocating support for "violent extremism" can satisfy the preconditions for an order even where the conduct falls short of advocating a "terrorist act" as defined in s 100.1 of the Commonwealth Criminal Code (at [59]-[63]).

  • Sending a threatening letter to an individual opposition MP does not, without more, constitute an intention to coerce or influence by intimidation a "government" for the purposes of the terrorist act definition in s 100.1(1)(c) of the Criminal Code, because Parliament is not equated with the executive government (at [49]-[50]).

  • A single individual, including a member of Parliament, does not constitute "a section of the public" for the purposes of s 100.1(1)(c)(ii) of the Criminal Code (at [52]).

  • Where the statutory preconditions for making an order under the Act are established, the choice between an IDO and an ISO turns on whether the less restrictive measure would be sufficient to protect the community: the Supreme Court found here that an extremely rigorous ISO, combined with anticipated strict bail conditions and parental oversight, was adequate where the defendant had no history of physical violence and no evidence of actual steps toward constructing a weapon (at [82]-[91]).

  • Conduct associated with the Sovereign Citizen Movement can provide a basis for proceedings under the Terrorism (High Risk Offenders) Act 2017 (NSW), though the court declined to find that the Movement as a whole actively promotes violence or explicitly supports violent extremism on the evidence presented in this case (at [57]-[58], [70]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases
- Not stated