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Supreme Court 6 November 2020

State of New South Wales v White

[2020] NSWSC 1568

Public order & justice offences
HIGH RISK OFFENDER

Citation: State of New South Wales v White [2020] NSWSC 1568
Court: Supreme Court of New South Wales
Date: 6 November 2020
Judge(s): Schmidt AJ

Background

The defendant is subject to an extended supervision order made in December 2018 under the Terrorism (High Risk Offenders) Act 2017 (NSW). The original order followed a history of serious conduct, including anti-Semitic threats made to the Sydney Jewish Museum in 2014 and the arson of a church in Taree in 2016. The supervising judge at that time concluded that without supervision the defendant posed an unacceptable risk of committing a serious terrorism offence consistent with his previously held white supremacist views.

The 2018 order included electronic monitoring for a period not exceeding six months. In October 2019, shortly after that monitoring ceased, the defendant travelled by private car to a social event instead of by the approved mode of public transport and consumed alcohol in breach of an abstinence condition. He was arrested, charged, and later sentenced to 13 months imprisonment. A further breach relating to a change in appearance was detected in July 2020.

The State applied under s 31 of the Act to vary the electronic monitoring condition. The defendant opposed the application, arguing that reimposition was not directed to his terrorism risk and that the existing conditions already adequately managed that risk.

Legal Issues

  • Whether the defendant's breaches of supervision conditions constituted a material change in circumstances sufficient to justify varying the electronic monitoring condition under s 31 of the Act.
  • Whether electronic monitoring was the least intrusive condition capable of adequately managing the defendant's ongoing risk of committing a serious terrorism offence.
  • Whether the electronic monitoring condition should be reimposed with or without a mechanism for ongoing review and possible suspension by the supervising officer.

Decision

Issue 1: Material change in circumstances and ongoing risk

The court was satisfied that the defendant's post-release conduct established a relevant material change in circumstances. His extremist thinking was found to continue despite his claimed ideological shift from white supremacy to anarchism, and his behaviour was found to be consistent with continuing to seek identity and purpose through extreme ideologies (at [44], [56]). Ms Sweller assessed his current risk as moderate for violent extremism and terrorism activity, and Dr Ellis placed him in a group with moderate-high risk for violent offending (at [57], [72]). The court was not persuaded that any different conclusion from that reached by Adams J was now open on the evidence.

Issue 2: Least intrusive conditions and the role of electronic monitoring

The court accepted that any condition imposed must be the least intrusive available to ensure adequate community protection, must be directed to mitigating the defendant's risk, and cannot be purely punitive or resource-efficient in motivation (at [24], [39]). It found that electronic monitoring was capable of reducing the defendant's risk of impulsive behaviour including alcohol consumption and association with unhelpful peers, and that the absence of any possibility of reimposition appeared to have encouraged the October 2019 breaches (at [60], [80]). The court was satisfied that reimposition satisfied the least intrusive standard in the defendant's circumstances (at [78]).

Issue 3: Form of the varied condition, including ongoing review

The court declined to reimpose electronic monitoring on the terms sought by the State, which would have provided no mechanism for ongoing review. It found that the previous system of staged review had ceased shortly after Adams J made her orders, leaving any reimposed condition effectively permanent for the life of the order (at [10]). The court considered ongoing review by the supervising officer to be an important feature of a supervision regime capable of encouraging the defendant's rehabilitation as well as protecting the community (at [81]). It ordered a varied condition requiring at least three-monthly review, with a mechanism allowing the condition to be suspended and, if circumstances changed, reimposed. Where reimposition occurs after suspension, the supervising officer must provide the defendant with a short written statement explaining the basis for that decision (at [82]-[83]).

Orders Made

  • Condition 4 of the defendant's extended supervision order is varied to require the defendant to wear electronic monitoring equipment as directed by his supervising officer and not to tamper with or remove it without prior approval.
  • The need to continue wearing the equipment must be reviewed by the supervising officer at least once every three months.
  • Where the requirement has been suspended, it may be reimposed if the supervising officer becomes aware the defendant may have breached another condition of supervision, or if the supervising officer considers it necessary to address the defendant's risk of committing a serious terrorism offence.
  • Upon reimposition after suspension, the defendant must be provided with a short written statement setting out the basis for that conclusion.

Key Takeaways

  • Under s 31 of the Terrorism (High Risk Offenders) Act 2017 (NSW), a court may vary an extended supervision order where there has been a material change in circumstances, but any varied condition must remain the least intrusive available to adequately manage the offender's risk and must not be unjustifiably onerous or purely punitive (at [24], [38]-[39]).

  • Electronic monitoring conditions imposed on terrorism high risk offenders should, consistently with the statutory scheme's objects, incorporate a mechanism for ongoing review rather than operating as a fixed, unreviewed obligation for the remainder of the supervision order's term (at [10]-[12], [81]).

  • Where a supervising officer reimposed electronic monitoring after a period of suspension, the Supreme Court found it appropriate to require the officer to provide the offender with a written explanation of the basis for that decision, in order to support the offender's understanding of the consequences of non-compliance and to encourage rehabilitation (at [82]).

  • Continued use of imagery, tattoos, and symbols associated with extremist ideology, assessed alongside an offender's self-reported ideological shift, can remain relevant to an ongoing terrorism risk assessment even where the offender claims changed beliefs (at [47], [56], [63]).

  • The absence of a reimposition mechanism within a supervision regime may itself undermine compliance: the court found that the lack of any prospect that electronic monitoring could be reinstated appeared to have emboldened the defendant to breach important conditions shortly after monitoring ceased (at [80]).

Legislation and Cases Referenced

Legislation
- Terrorism (High Risk Offenders) Act 2017 ( NSW) ss. 3, 3(1), 25( 2), 29, 29(1A)( b), 29(1)( h), 29( 3), 29(3)(h), 29(3)(j), 29(3) ( l) – (m), 30, 31

Cases
- Baldwin v State of New South Wales [2020] NSWCA 112
- Lynn v State of New South Wales [2016] NSWCA 57
- New South Wales v Mills [2019] NSWSC 298
- State of New South Wales v Bugmy [2017] NSWSC 855
- State of New South Wales v Burns [2014] NSWSC 1014
- State of New South Wales v Donovan [2015] NSWSC 1254
- State of New South Wales v Graham James Kay [2018] NSWSC 1235
- State of New South Wales v Green (Final) [2013] NSWSC 1003
- State of New South Wales v White (Final) [2018] NSWSC 1943
- State of New South Wales v White (No 1) [2018] NSWSC 1064
- State of New South Wales v Wilde [2015] NSWCA 28