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Supreme Court 10 April 2026

State of New South Wales v Benshabir (Preliminary)

[2026] NSWSC 348

Public order & justice offences
HIGH RISK OFFENDERS INTERIM SUPERVISION ORDERS STATUTORY PRE MEANING OF “WILL” IN STATUTORY CONTEXT

Citation: State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348
Court: Supreme Court of New South Wales — Common Law Division
Date: 10 April 2026
Judge(s): Weinstein J

Background

The State of New South Wales commenced proceedings by Summons filed on 30 March 2026, seeking a 12-month extended supervision order (ESO) against a 20-year-old defendant, Yaqoob Benshabir, under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). The defendant was serving a 10-month sentence of imprisonment (with a 5-month non-parole period) for an offence of affray contrary to s 93 of the Crimes Act 1900 (NSW), imposed in the Local Court in February 2026. His sentence was backdated to 25 September 2025, with the non-parole period having expired on 24 February 2026 and the balance of his term due to expire on 24 July 2026. His statutory parole had been revoked, with a parole review listed for 14 April 2026.

The matter came before the Court urgently on 1 April 2026 because the defendant had a severity appeal against his sentence listed in the District Court the very next day, 2 April 2026. There was a real possibility that a successful appeal could result in a sentence that would either see the defendant released imminently or render him no longer an "eligible offender" under the Act. In that context, the State sought two categories of urgent relief: (1) the appointment of expert psychiatrists or psychologists to examine the defendant and provide reports, and (2) an interim supervision order (ISO) to govern the defendant's conduct in the community should he be released before the ESO proceedings were finally determined.

The defendant was identified as a "convicted NSW terrorism activity offender" under s 10(1)(c)(ii) of the Act, on the basis of a personal association or affiliation with a person, group or organisation advocating support for a terrorist act or violent extremism. He neither consented to nor opposed the orders sought in the Summons.

  • Was the defendant an "eligible offender" and a "convicted NSW terrorism activity offender" within the meaning of the Act?
  • Did the application and preliminary hearing comply with the formal requirements of the Act (ss 23, 24, 25)?
  • Were the matters alleged in the supporting documentation sufficient, if proved, to justify the making of an ESO (s 24(5))?
  • Was the Court able to be satisfied that the defendant's term of imprisonment "will" expire before the proceedings are determined, so as to satisfy the statutory prerequisite for making an interim supervision order under s 27(a) of the Act?
  • If the statutory prerequisites were met, should the Court exercise its discretion to make an ISO?

Decision

Eligibility and formal requirements: Weinstein J had little difficulty concluding that the defendant was an "eligible offender" under s 7 of the Act (since affray is an indictable offence, and the defendant was serving a sentence for it) and a "convicted NSW terrorism activity offender" under s 10. The Court was also satisfied that all formal requirements — including timing of the application, service of the Summons, disclosure of supporting material, and conduct of the preliminary hearing within 28 days — had been met.

Sufficiency of supporting documentation: Applying the lower threshold applicable at the preliminary stage, the Court was satisfied that the matters alleged in the supporting documentation — including a risk assessment report — would, if proved, justify the making of an ESO. The Court emphasised, consistent with prior authority, that the preliminary hearing does not involve weighing the evidence, resolving conflicts, or predicting the ultimate result. Rather, the task is to take the plaintiff's case at its highest and consider whether the statutory test is met. Drawing on established principles about risk avoidance and the nature of unacceptable risk — including that even a low likelihood of offending may constitute an unacceptable risk given the nature and severity of potential terrorism offences — the Court was satisfied that this threshold was crossed. It therefore made orders appointing two experts to conduct examinations and furnish reports.

The interim supervision order — the meaning of "will": The pivotal and novel issue in the case concerned s 27(a) of the Act, which provides that an ISO may only be made where, among other things, it appears to the Court that the offender's custody "will" expire before the proceedings are determined. As at the date of the preliminary hearing (1 April 2026), the defendant's sentence was not due to expire until 24 July 2026, his parole had been revoked, and a parole review was still pending. While the defendant's severity appeal the following day could result in his earlier release, Weinstein J concluded that this possibility was insufficient to satisfy the statutory prerequisite. The word "will" in s 27(a) connotes a degree of certainty — it requires that the Court be satisfied that the custody will expire before the proceedings are determined, not merely that it might or could. Because the Court could not be satisfied that the defendant's custody would expire before determination of the ESO proceedings, the application for an ISO was refused.

Provisional view on discretion: Although the Court refused the ISO on the threshold issue, Weinstein J expressly noted a provisional view that, had the statutory prerequisite been met, the Court's discretion should be exercised in favour of making an ISO on the conditions proposed by the State. This observation was made in the context of the liberty-to-restore order, designed to allow the parties to return urgently if the severity appeal resulted in imminent release — which would have changed the factual position underpinning the s 27(a) question.

Orders Made

  • Appointment of two qualified psychiatrists and/or registered psychologists to conduct separate examinations of the defendant and furnish reports to the Court by 27 May 2026, with a direction that the defendant attend those examinations (s 24(5) of the Act).
  • Refusal of the application for an interim supervision order under s 27 of the Act.
  • Restriction of access to the Court file to non-parties only with leave of a Judge and prior notice to the parties.
  • Listing for directions before Yehia J on 9 April 2026.
  • Liberty to approach the Duty Judge urgently on one hour's notice, including out of regular business hours.
  • Direction that the parties notify the Duty Judge and chambers of the outcome of the severity appeal as soon as practicable.

Key Takeaways

  • Under s 27(a) of the Act, the word "will" requires certainty rather than mere possibility. Weinstein J held that the Court must be satisfied that custody will expire before the proceedings are determined, and that a pending appeal that might result in earlier release was not sufficient to cross this threshold. The factual basis for asserting imminent expiry of custody must demonstrate certainty, not speculation.

  • At the preliminary hearing stage, the applicable standard remains a low-threshold, plaintiff-focused inquiry. Rather than weighing evidence, resolving conflicts, or predicting outcomes, the Court takes the supporting documentation at its highest, with the focus directed at risk avoidance rather than probability of offending.

  • A finding of unacceptable risk may be sustained even where the likelihood of reoffending is low, given the catastrophic nature of potential harm in the terrorism context. The Supreme Court continued to apply this principle, drawing on Kamm and Daiman Nixon in its assessment of risk.

  • Liberty-to-restore orders served as a practical safety valve in circumstances where the factual premise for an interim supervision order could change imminently (such as the outcome of a pending appeal), enabling the parties to return urgently so that an application could be revisited without delay.

  • Provisional indications of the Court's discretionary view were offered even where the jurisdictional threshold for an interim supervision order was not met, with Weinstein J noting how the matter was likely to be approached should circumstances change.

Legislation and Cases Referenced

Legislation:
- Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 7, 10, 20, 23, 24, 25, 27
- Crimes Act 1900 (NSW), s 93
- Criminal Code Act 1995 (Cth), s 474.45C

Cases:
- State of New South Wales v Naaman (No 2) [2018] NSWSC 1329
- State of New South Wales v Sturgeon [2019] NSWSC 559
- *State of New South Wales v