Federal Court of Australia

Booth v Thorne [2021] FCA 380

File number:

VID 76 of 2021

Judgment of:

ANASTASSIOU J

Date of judgment:

5 March 2021

Date of publication of reasons:

16 April 2021

Catchwords:

CRIMINAL LAW application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether pre-conditions in s 104.4(1) are satisfied – whether controls reasonably necessary and reasonably appropriate and adapted – application granted

Legislation:

Criminal Code 1995 (Cth), s 104.4

Cases cited:

Booth v Thorne [2020] FCA 445

Booth v Thorne (No 2) [2020] FCA 1196

Division:

General Division

Registry:

Victoria

National Practice Area:

Federal Crime and Related Proceedings

Number of paragraphs:

6

Date of hearing:

5 March 2021

Counsel for the Applicant:

Ms C. Fitzgerald

Solicitor for the Applicant:

Australian Government Solicitor

Solicitor for the Respondent:

Ms I. Skaburskis of Doogue and George Defence Lawyers

ORDERS

VID 76 of 2021

BETWEEN:

SANDRA BOOTH

Applicant

AND:

SHAYDEN JAMIL THORNE

Respondent

order made by:

ANASTASSIOU J

DATE OF ORDER:

5 MARCH 2021

THE COURT ORDERS THAT:

Interim control order

1.    The Court makes an interim control order pursuant to s 104.4 of the Criminal Code (Cth) in the terms set out in the Schedule to these orders.

Confirmation hearing

2.    The proceeding be listed for hearing on 9 June 2021 at 11:00am.

Suppression order

3.    There is to be no disclosure, by publication or otherwise, of:

 (a)    the address in Control 1.1;

 (b)    the names of third parties who are not also persons convicted of terrorism offences, in Control 5.1b;

 (c)    in the Summary of Grounds in Annexure B, the names of third parties who are not party to this proceeding, except the names of co-accused;

4.    The Information identified in Order 3 be redacted from any publicly available Court documents, including Orders.

5.    Orders 3 and 4 are made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(a) and (c) of that Act).

6.    Orders 3 and 4 operate until further order.

7.    Orders 3 and 4 do not prevent disclosure of the Information to and between the following people for the purposes of these proceedings:

(a)    the presiding judge and necessary staff of this Court;

(b)    officers and employees of agencies that are members of the Joint Counter Terrorism Team and legal representatives of those agencies;

(c)    the respondent and his legal representatives;

(d)    Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).

Endorsement pursuant to Rule 41.06

To: Shayden Thorne

You will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a) for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or

(b) for an order that requires you not to do an act or thing - you disobey the order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANASTASSIOU J:

1    By an originating process dated 19 February 2021, the Applicant, Sandra Booth, applies for an interim control order pursuant 104.4 of the Criminal Code 1995 (Cth). The application is supported by an affidavit of Ms Booth sworn on 19 February 2021. Ms Booth is a member of the Australian Federal Police holding the rank of Commander, with responsibility for Counter Terrorism Enduring Risk Investigation.

2    A like application was made by the same applicant in respect of the same respondent on 27 February 2020: see Booth v Thorne [2020] FCA 445. On 6 March 2020, the Court made interim control orders of a similar nature to those presently sought. That application was followed by an application for confirmation of the interim control order in respect of the present respondent: see Booth v Thorne (No 2) [2020] FCA 1196.

3    The relevant background facts and the terms of the statutory scheme, including the matters that the Court must take into account before making a control order, are set out in Booth v Thorne [2020] FCA 445 at [5]-[12]. It is unnecessary to repeat those matters here as the present application is a like application for an interim control order, though there are some differences in the terms of the proposed controls.

4    Further, the Respondent, who is legally represented, does not oppose the making of further interim control orders on the terms that have been agreed with the Applicant. Having regard to the affidavit of the Applicant, I am satisfied that each of the four pre-conditions in s 104.4(1) of the Code are established. In particular, I am satisfied that the terms of the proposed controls are reasonably appropriate and adapted as required by s 104.4(1)(d) of the Code.

5    I note further that s 104.5(h) of the Code requires that when making an interim control order, the order must set out a summary of the grounds on which the order is made. The summary is contained in Annexure B to the interim control order. That summary has been the subject of negotiation between the parties and is agreed. The agreed summary provides further support for my conclusion that the controls are reasonably necessary and reasonably appropriate and adapted.

6    For the foregoing reasons, the orders in the form agreed between the parties shall be made. I shall also list the interim control order for a confirmation hearing at 11:00am on 9 June 2021.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

Associate:

Dated:    16 April 2021

Schedule – Interim control order

1.    This interim control order relates to the Respondent, Shayden Jamil Thorne.

2.    The Court is satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104(1)(c)(iv)) of the Criminal Code.

3.    The Court is satisfied on the balance of probabilities that the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104(1)(c)(vii)) of the Criminal Code.

4.    Further, the Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

4.1. protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code);

4.2. preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and

4.3. preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code).

5.    The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Annexure A to this Schedule.

6.    A summary of the grounds on which the order is made is set out in Annexure B to this Schedule.

7.    This Interim Control Order does not begin to be in force until it is served personally on the Respondent.

8.    If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made.

9.    The Respondent may attend the Federal Court of Australia which is located at Commonwealth Law Courts at 305 William Street, Melbourne, Victoria, on 9 June 2021 at 11:00am for the Court to:

9.1. confirm (with or without variation) this Interim Control Order,

9.2. declare this Interim Control Order to be void, or

9.3. revoke this Interim Control Order.

10.    The Respondent’s lawyer may attend the AFP Melbourne office at 383 La Trobe Street, Melbourne, Victoria between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order.

ANNEXURE A

1.    Control 1

1.1.    You are required to reside at <redacted> in the State of Western Australia (the specified premises) or other such other premises nominated by you in accordance with Control 1.2.

1.2.    If you decide to permanently leave the specified premises, or stay at any premises other than the specified premises for more than 21 consecutive days, you are required to notify the AFP Superintendent of your new address or the address you will be staying at in writing three business days prior to departing the specified premises. If at the time of leaving the specified premises you did not foresee that you would be staying at any premises other than the specified premises for more than 21 consecutive days and did not notify the AFP Superintendent that you would be doing so, you are required to notify the AFP Superintendent as soon as you become aware that you will be staying at any premises other than the specified premises for more than 21 consecutive days.

2.    Control 2

2.1.    You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:

a.    Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:

i.    explosives, explosive devices, initiation systems, firing devices or conducted electrical weapons;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    propaganda and promotional material for a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and

xi.    activities of, or associated with, a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),

unless that material is:

i.    published by a ‘constituent body’ of the Australian Press Council;

ii.    broadcast on Australian free to air television;

iii.    broadcast on Australian pay television;

iv.    shown in a commercial movie cinema;

v.    broadcast on a free to air or paid streaming service; or

vi.    served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.

3.    Control 3

3.1.    You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:

a.    Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:

i.    explosives, explosive devices, initiation systems, firing devices or conducted electrical weapons;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and

xi.    activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).

b.    Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media, or directing any person to collate, edit, produce or distribute documents (including documents in electronic form) or electronic media, relating to:

i.    explosives, explosive devices, initiation systems or firing devices;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); and

xi.    activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).

4.    Control 4

4.1.    You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:

a.    firearms or ammunition within the meaning of s 4 of the Firearms Act 1973 (WA);

b.    a ‘prohibited weapon’ within the meaning of s 3 of the Weapons Act 1999 (WA);

c.    any quantity of petrol exceeding 4 litres except petrol contained in the petrol tank of a vehicle;

d.    any quantity of any chemical which is not consistent with reasonable domestic use;

e.    an article or device, not being a firearm, capable of discharging by any means any irritant matter in liquid, powder, gas, chemical form, dense smoke or substance, which is intended by the person having possession of the article or device to injure or menace a person;

f.    a detonator;

g.    a fuse capable of use with an explosive or a detonator;

h.    a knife, in a public place, without reasonable excuse; and

i.    anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

5.    Control 5

5.1.    You are prohibited from communicating or voluntarily associating with:

a.    Apart from your brother, Junaid Thorne, any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;

b.    any of the following specified individuals:

-    Abdul Nacer BENBRIKA (Date of birth: 17 February 1960);

-    <redacted>, except for the sole purpose of discussing your child or facilitating contact with your child;

-    <redacted>, except for the sole purpose of discussing your child or facilitating contact with your child;

-    Robert CERANTONIO (Date of birth: 28 January 1985);

-    Paul DACRE (Date of birth: 6 July 1985);

-    Antonino GRANATA (Date of birth: 10 November 1990);

-    Kadir KAYA (Date of birth: 13 July 1994);

-    Murat KAYA (Date of birth: 14 February 1991)

6.    Control 6

6.1.    You are prohibited from accessing or using, any mobile telephone device and SIM card other than:

a.    a single mobile telephone device and SIM card provided by the AFP; or

b.    a single mobile telephone device and SIM card of your choice (the permitted mobile phone).

6.2.    If you wish to access or use a mobile telephone device and SIM card provided by the AFP in accordance with Control 6.1a, your access or use is subject to the following conditions:

a.    prior to using the permitted mobile phone an AFP Superintendent will provide you with the following information in writing: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected;

b.    at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open;

c.    you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card provided by the AFP, telecommunication service provider or phone number connected to the permitted mobile phone; and

d.    if you change the password for the permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent’s direction, if you are requested to do so by an AFP Superintendent or that police officer.

6.3.    If you wish to access or use a mobile telephone device and SIM card of your choice in accordance with Control 6.1b, your access or use is subject to the following conditions:

a.    within 24 hours of accessing or using the mobile telephone device and SIM card for the first time, you must advise an AFP Superintendent of the following information: the International Mobile Equipment Identity, the Integrated Circuit Card Identifier for the SIM card you will use, the telecommunications service provider which you will use with the permitted mobile phone and the phone number to which the permitted mobile phone will be connected; and

b.    if at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the mobile telephone device phone and SIM card for inspection and open any applications the AFP Superintendent or police officer directs you to open.

7.    Control 7

7.1.    You are required to consider in good faith participating in a countering violent extremism (CVE) program including counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes per week.

7.2.    If you agree to participate in such counselling or education you must advise an AFP Superintendent in writing that you have commenced the counselling or education and provide an AFP Superintendent the name and qualifications of the professional you have engaged.

8.    Exemptions requested by you

8.1.    You may request that an AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 6.1.

8.2.    To request an exemption, you must:

a.    submit a written request to an AFP Superintendent which: (i) explains the extent to which you seek to be exempted from the Control and (ii) explains your reason(s) for seeking the exemption; and

b.    provide any other information requested by, or on behalf of, an AFP Superintendent for the purposes of determining whether to approve the exemption.

8.3.    The AFP Superintendent may grant an exemption subject to conditions specified in writing.

8.4.    You must comply with all of the conditions specified in writing by an AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.

8.5.    A request for an exemption must be made before the material time and date.

8.6.    If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.

9.    Exemption granted by the AFP with or without a request from you

9.1.    An AFP Superintendent may grant an exemption to the requirements or prohibitions specified in the Controls with your consent.

9.2.    The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.

9.3.    You must comply with all the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for purposes) of no effect.

Interpretation

In this Interim Control Order:

a.    AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism portfolio.

b.    Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.

c.    Material time and date means:

i.    in relation to a request for an exemption to the requirements or prohibitions in Control 6.1 – the time and date at which you wish to access or use the mobile phone and SIM card.

d.    Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.

e.    Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ or ‘special constable’ within the meaning of the Police Act 1892 (WA).

ANNEXURE B

Overview

1.    On 26 February 2019, following a plea of guilty on 22 February 2019, Mr Shayden Thorne was convicted of an offence of preparing for incursions into foreign countries for the purpose of engaging in hostile activities, contrary to ss 11.2A and 119.4(1) of the Criminal Code 1995 (Cth).1 That is an offence relating to terrorism.

2.    Mr Thorne was sentenced to three years and ten months’ imprisonment with a non-parole period of two years and ten and a half months in the Supreme Court of Victoria.2

3.    Mr Thorne’s sentence expired on 7 March 2020.3

4.    On 6 March 2020 in the Federal Court of Australia, Justice Anastassiou made an interim control order in respect of Mr Thorne pursuant to s 104.14(7)(b) of the Criminal Code 1995 (Cth).4

5.    On 17 August 2020 in the Federal Court of Australia, pursuant to s 104.14(7)(b) of the Criminal Code 1995 (Cth), Justice Anastassiou confirmed the interim control order made in relation to Mr Thorne on 6 March 2020 with variations.5

6.    By reason of the following matters, Mr Thorne presents an ongoing risk of committing, supporting or facilitating a terrorist act in Australia or overseas; or committing, supporting or facilitating engagement in a hostile activity in a foreign country:

6.1.    the nature and circumstances of, and background to, Mr Thorne’s offending and the extreme ideology that he held at that time6, including:

a.    his attempt (by agreement with his co-offenders) to travel to the Southern Philippines (where a number of Islamist militant groups operated) with the intention of his co-offender Mr Cerantonio engaging in hostile activity, despite the cancellation of his passport by the Minister on 22 October 2015;

b.    his security awareness, demonstrated during the course of the investigation;

c.    demonstrated support for Islamic State and extremist ideology supportive of violence; and

d.    his susceptibility to others who espouse extremist ideology as demonstrated by his susceptibility to the influence of Mr Robert Cerantonio;

6.2.    his ideology, including:

a.    his continued extremist ideology whilst in custody;7

b.    his previous inability to accurately identify or assess extremist views and ideologies; 8

c.    the lack of any express indication that he has renounced his extremist ideology that led to his criminal conviction; and

d.    his ongoing lack of respect for, or resistance, to secular authority.9

6.3.    his susceptibility to influence and continued connection to persons of security concern, including the <redacted> family10, and his intention to contact his co-offenders11;

Ongoing risk factors

Nature and circumstances of, and background to, his offending

7.    The nature and circumstances surrounding Mr Thorne’s offending included:

Persistent attempts to travel offshore

8.    On 8 October 2015 Mr Thorne attempted to travel out of Australia from Melbourne International Airport, with his wife who was pregnant with their child, to Kuala Lumpur. His mother grew up in Malaysia. Mr Thorne told officials at the airport that he was travelling to Kuala Lumpur to holiday and that his mother’s brother and sister reside in Kuala Lumpur. Officers of the Australian Border Force impounded Mr Thorne’s passport and he was refused permission to travel on the basis that he was unable to satisfactorily explain his travel plans to Australian Border Force officers.12 On 22 October 2015 the Minister for Foreign Affairs cancelled Mr Thorne’s passport on the basis that he would ‘be likely to engage in conduct that might prejudice the security of Australia or a foreign country’.13

9.    Following his being prevented from leaving Australia by plane, and having his passport being cancelled, he entered into an agreement with his co-offenders to acquire a boat and other equipment in preparation for leaving Australia to enter the Southern Philippines for the purpose of his co-offender Mr Cerantonio engaging in hostile activity. Mr Thorne was not to be involved in any violent behaviour, or in encouraging others in the Philippines to participate in an attempted overthrow of the government by force or violence. Instead, Mr Thorne intended that Mr Cerantonio would encourage other persons of the Islamic faith in the Philippines to participate in an attempted overthrow of the government of the Southern Philippines by force or violence. Mr Thorne did not know the means by which Mr Cerantonio would do so, or with whom.

10.    Mr Thorne applied for and received a $500 advance payment of his Newstart allowance, and subsequently purchased female hiking and camping clothing and a Gore-Tex jacket.14 It can be inferred that he did so in anticipation of leaving Australia.

11.    Mr Thorne intended to travel offshore with his family and co-offenders in the MV Rushcutter if it had been assessed as suitable for purchase by his co-offenders Mr Murat Kaya and Mr Dacre.

12.    Mr Thorne met with the co-offenders following Mr Murat Kaya and Mr Dacre’s return from Darwin, where they had travelled for the purposes of purchasing a boat to travel to the Philippines (although they did not purchase that particular boat).15

13.    Between 6 May 2016 and 10 May 2016, Mr Thorne travelled with his co-offenders (other than Mr Murat Kaya) to Cape York in Queensland with a boat purchased in the name of Mr Dacre with the intention of travelling out of Australia to the Philippines.16 He was subsequently arrested on 10 May 2016.17

Security awareness

14.    Mr Thorne behaved consistently with the avoidance of detection by law enforcement during the period of offending, in that he:

14.1.    assisted a number of the co-offenders to search their car for a listening device;18

14.2.    used a system of codes with his co-offenders to mislead any attempts at electronic surveillance of their communications;19

14.3.    used a falsely subscribed mobile phone number;20

14.4.    used multiple Telegram accounts to ‘keep the Feds off my back’;21

14.5.    advised his co-offenders that Telegram is ‘better than other that apps’, ‘but just watch what u say always’.22

Demonstrated support for Islamic State and extremist ideology

15.    Islamic State follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its extreme interpretations. Islamic State has a goal of ‘global jihad’ and has exhorted followers to kill disbelievers. Islamic State inspires, encourages, enables and directs terrorist attacks internationally.23

16.    On 17 July 2015, Mr Thorne and his co-offenders attended an organised meeting at Footscray Park, at which ISIS flags were flown by the co-offenders, and they each raised their index fingers (sometimes known as the ‘shahada finger’) in the ‘tawheed salute’ which has come to be used as a widely recognized symbol of support for Islamic State.24

17.    On 3 August 2015, Mr Thorne joined a Telegram chat group which included two of his co-offenders, using the username ‘Qaahir Al-Saleeb’ (which means ‘destroyer of the kuffar’, ‘kuffar’ being a derogatory Arabic term used to refer to non-Muslims) and a profile picture featuring a flag with the ISIS symbol25.

18.    On 13 August 2015, Mr Thorne posted on Telegram a news article titled ‘Authorities brace for ugly scenes as Australian ‘patriots’ plan mosque protests’. He commented ‘it’s time’ followed by a knife emoji.26

19.    On 25 August 2015, Mr Thorne posted on Telegram a link to an article about <redacted> pledging allegiance to ISIS, with an Arabic phrase that means ‘god is the greatest’ and a request that the group pray for <redacted>.27

20.    Mr Thorne was sentenced by Justice Croucher on the basis that he adhered to an ideology of Islamic extremism and was supportive of Islamic State and that this motivated his criminal offending.

Susceptibility to the influence of Mr Cerantonio

21.    From at least 22 October 2015, Mr Thorne was closely associated with Mr Cerantonio whom he looked to for religious guidance and leadership. Mr Cerantonio was the person to whom Mr Thorne and his co-offenders turned to for leadership and religious and spiritual guidance. He enhanced or persuaded Mr Thorne towards extremist ideas. Mr Certanonio advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines and Mr Thorne was found by Justice Croucher to have supported Mr Cerantonio’s advocacy for that result.28

Ideology

Continued extremist ideology whilst in custody

22.    Mr Thorne maintained his extremist ideology including resentment towards non-Muslims and Australian laws while in custody, as evidenced by the following:

22.1.    Mr Thorne’s letter to <redacted> dated 22 February 2017, in which he expressed sadness following the cancellation of his passport in 2016, and said he would not accept it for himself or another Muslim to live in this land. Mr Thorne indicated in the letter that he had been searching for a solution to this crisis with some of the brothers, but was caught;29

22.2.    In a letter to <redacted> on 3 March 2019, Mr Thorne referred to the teachings of <redacted>. He wrote, ‘regarding the non-authentic ahaadeeth30 in the ‘fortress of the Muslims’31, I documented that from the students of Sheikh Sulayman Al-Alwan. The Sheikh gave reasons for why those izkar32 are not authentic.’ Al-Alwan is reported to have been arrested in 2004 and subsequently convicted of offences that included visiting Al-Qaeda members and sanctioning suicide operations, and financing terrorism through Al-Qaeda by collecting for and providing financial aid to Abu Musab Al-Zarqawi, Al-Qaeda’s (then) leader;33

22.3.    Mr Thorne’s continued association with individuals of security concern while in custody.34

Inability to identify or assess extremist views and ideologies

23.    Prior to his release, Mr Thorne continued to have difficulty with identifying or assessing extremist views and ideologies on the one hand, and legitimate religious practices on the other.35 For example, Mr Thorne, through communications with his legal representative, indicated that he regards the ISIS flag as a flag with a religious symbol which he does not associate with ISIS.36

Lack of any positive indication that he has renounced his extremist ideology

24.    While Mr Thorne has:

24.1.    participated in the Court Integration Support Program (CISP), managed by the Countering Violent Extremism Unit in Victoria from 23 May 2019 until he relocated to Western Australia in March 202037;

24.2.    been participating in the Countering Violent (CVE) program, managed by the Western Australia Police Force (WAPOL), since 27 April 202038; and

24.3.    through the WAPOL CVE program, engaged with a Sheikh who is a spiritual mentor and counsellor39,

the AFP is not aware of any change in Mr Thorne’s ideological beliefs, any recognition by Mr Thorne that his beliefs are or were in the past extreme, or his present ideological beliefs.

Ongoing lack of respect for, or resistance, to secular authority

25.    On 30 December 2020, Mr Thorne had a conversation with his mother in which he indicated that he would not be bowing in court, when he attended to answer a charge for a traffic offence.40 Although at court Mr Thorne was polite, stood upon request and interacted, without any show of hostility, with the Police Prosecutor and Magistrate,41 his comments to his mother indicate he holds the view that a Muslim should not, or must not, bow in an Australian court. This may indicate a lack of respect for, or resistance to, secular authority, particularly in light of Mr Thorne’s previous support for, and desire to live under, sharia law.

Susceptibility to influence and continued connection to persons of security concern

26.    As noted above, Mr Thorne was influenced by Mr Cerantonio and adopted his advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines.42 This susceptibility to such influence increases the risk that Mr Thorne may pose to the community.

Conduct in custody

27.    While in custody, Mr Thorne continued to associate with Mr Cerantonio, who was housed in the same prison as Mr Thorne.43 Mr Thorne’s continued association with Mr Cerantonio demonstrated a lack of insight into the circumstances that led to his offending, and demonstrated that Mr Thorne was not motivated to avoid Mr Cerantonio’s influence despite Justice Croucher’s remarks in sentencing him.

28.    During his time in custody, Mr Thorne associated with the following individuals charged with or convicted of terrorist offences:

28.1.    <redacted>, who served a fifteen year sentence of imprisonment for various terrorism related offences under s 102.3(1) and 102.2(1) of the Criminal Code (Cth)44 and has been the subject of a continuing detention order since 24 December 2020.45

28.2.    <redacted>, who is currently serving a sixteen year sentence for engaging in a terrorist act under s 101.1(1) of the Criminal Code (Cth).46 Mr Thorne has sent a number of letters to, and received a number of letters from, <redacted>.47 In a letter to <redacted>, Mr Thorne asked <redacted> to pass on his ‘salam’ to <redacted> co-accused. At the date of that letter, <redacted>, <redacted> and <redacted> were on trial in the Supreme Court of Victoria. They were each subsequently convicted of an offences or offences connected with terrorist attacks upon the Imam Ali Islamic Centre, a Shia Islamic community prayer and religious centre.48

29.    Mr Thorne’s desire to maintain contact with others charged with or convicted of terrorist offences while himself imprisoned for a similar offence increases the risk that he will seek out similar associations of security concern once he is no longer the subject of a control order, and that he is or has been sympathetic to the view/ideology of such persons.

30.    During his time in custody, Mr Thorne also associated with the following individuals whose passports have been cancelled due to security concerns assessed by ASIO, or who have renounced Australian citizenship:

30.1.    <redacted>49

30.2.    <redacted>;50

30.3.    <redacted>;51

30.4.    <redacted>;52

30.5.    <redacted>;53

30.6.    <redacted>;54

30.7.    <redacted>;55

30.8.    <redacted>;56

30.9.    <redacted>;57

30.10.    <redacted>.58

31.    He also associated with <redacted> and <redacted>, who can each be seen in photographs, with Mr Thorne, displaying the ‘shahada finger’. In one such photograph featuring <redacted> and <redacted>, they are among a group of men posing with the ISIS flag.59

32.    These individuals listed in [30] and [31] either visited Mr Thorne in prison, had phone calls with him, or both.

Impact of control order

33.    The control order in respect of Mr Thorne prohibited Mr Thorne from communicating or voluntarily associating with each of his co-offenders and the individuals listed in [28], [30] and [31], with the exception of <redacted>, <redacted> and <redacted>.60 Mr Thorne was prohibited from communicating or voluntarily associating with <redacted> and <redacted>, except for the purpose of discussing his child or facilitating contact with his child.61

34.    Mr Thorne’s co-offenders and members of the <redacted> family are located in Melbourne, Victoria.62 Mr Thorne was released from custody on 7 March 2020 and moved from Melbourne to Perth on 13 March 2020.63 In the period in which the control order has been in force there have been reduced opportunities for Mr Thorne to associate with persons previously known to him in Melbourne, including members of the <redacted> family. However, Mr Thorne has recently indicated that he is considering the options of visiting Melbourne or moving back to Melbourne.64

Connection to <redacted> family

35.    Mr Thorne has a young child with the daughter of <redacted>, who has been convicted of terrorism offences and <redacted>.65

36.    Since his release, Mr Thorne has associated with <redacted> largely within the parameters of the control order in respect of Mr Thorne. However, prior to relocating to Perth, Mr Thorne expressed interest in meeting with <redacted> on two occasions for purposes that did not appear to be within the parameters of the control order (noting a meeting occurred on only one of those occasions).66

37.    <redacted> also provided Mr Thorne’s phone number to <redacted> (an associate of Mr Thorne’s brother, <redacted>) who spoke to Mr Thorne on the phone. <redacted> is on bail, having been charged with firearms offences, and is the subject of a firearm prohibition order.67

Other associates

38.    Mr Thorne attended a farewell dinner in Melbourne knowing that a person of security concern (<redacted>) would be in attendance.68

Intention to contact co-offenders

39.    Mr Thorne has also indicated to the AFP that he would probably contact three of his co-offenders, Paul Dacre, Kadir Kaya and Antonino Granata, once he is no longer subject to a control order preventing him from doing so.69

Overall assessment of risk

40.    In view of the matters outlined above, while the risk Mr Thorne now poses is lower than it was at the time he was released from custody, there is still a real risk that in the absence of appropriate controls, Mr Thorne will commit, support or facilitate a terrorist act in Australia or overseas or support or facilitate the engagement in a hostile activity in a foreign country.

41.    While Mr Thorne has not professed a desire to commit, support or facilitate a terrorist act in Australia, the risk of this exists. There is insufficient information to indicate that Mr Thorne’s ideological beliefs have changed or to indicate he has developed sufficient mechanisms to resist the influence of others without the safeguards provided by controls.

42.    The mere passage of time and lack of recent anti-social behaviour does not necessarily mean that the risk posed by Mr Thorne does not exist.

43.    The obligations, prohibitions and restrictions set out in the proposed interim control order are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing a terrorist attack, preventing the provision of support for or the facilitation of a terrorist attack here or abroad and preventing the provision of support for or facilitation of the engagement in hostile activity in a foreign country. They will ensure that Mr Thorne is:

43.1.    provided with the opportunity to engage positively with the community through employment, religious observation, counselling and education;

43.2.    capable of being monitored by police during his engagement with the community; and

43.3.    prohibited from engaging in those behaviours, and being exposed to those influences, which may lead him to commit a terrorist act or provide support for or facilitate a terrorist act,

and thereby reduce the risks outlined above.

44.    The interim control order should be made notwithstanding the matters set out in the SOFN, for the following reasons:

44.1.    Mr Thorne’s conduct in the community, including the positive steps he has taken to reintegrate into the community70, has been while he is the subject of a control order, and he was aware that his compliance with the order was being monitored. It is noted that Mr Thorne has largely complied with the control order, has self-reported breaches of the control order to police and has sought and obtained exemptions to the order, as set out in the SOFN;

44.2.    While Mr Thorne has taken the positive steps outlined in the SOFN including in respect of his studies, employment, medical needs and finances71, he has done so with the support of CVE72 and his mother73, who is he required to reside with pursuant to the control order;

44.3.    While Mr Thorne has engaged positively with the WAPOL CVE program, and with his spiritual mentor and counsellor74, there is no information to indicate that this has had any impact on his ideology, and no information to indicate that he has resiled from the extremist ideology that led to his offending as outlined in the SOF;

44.4.    While Mr Thorne has largely complied with controls concerning members of the <redacted>, the ability of <redacted> to influence others, including through his sons <redacted> and <redacted> and his dominant role in the <redacted> family, remains a risk factor for Mr Thorne;

44.5.    While Mr Thorne has appeared cautious to avoid breaching his control order when contacted by others75, he is susceptible to the influence of persons with extremist views and may be less circumspect about persons who contact him if he is not subject to a control order, particularly as he has previously been assessed as unable to identify or assess extremist views and ideologies;

44.6.    While <redacted> provided a report in which he opined that a control order was unnecessary76, his opinions were not tested in court as the confirmation of the first control order was not contested.

44.7.    While nearly 12 months have passed since his release from custody, Mr Thorne has held extremist views since at least 2014 and possibly as early as 2011 when he was incarcerated in Saudi Arabia. At 33 years old Mr Thorne has thus held these views for a large portion of his adult life. As it can take some time for an individual to disengage from extremist ideology, it is unlikely that Mr Thorne has resiled from the beliefs that led to his offending within 12 months to an extent sufficient to enable his risk to be managed in the community in the absence of an interim control order.

  1.     SOF [5].

  2.     SOF [10]

  3.     SOF [11].

  4.     SOF [13].

  5.     SOF [15].

  6.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), Part IV.

  7.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), Part VI.

  8.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [51] – [52]; Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-04 (Statement of facts of which the deponent is aware relating to why the order should not be made’ dated 24 February 2020) [9].

  9.     SOF [31].

  10.     SOF [19] – [28].

  11.     SOF [29] – [30].

  12.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [26].

  13.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [27].

  14.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [28], [34].

  15.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [29] – [42].

  16.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [44] – [6].

  17.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [47].

  18.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [41].

  19.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [30] - [31].

  20.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [25].

  21.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [21].

  22.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [24].

  23.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [12] – [13].

  24.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [20].

  25.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [21].

  26.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [22].

  27.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [23].

  28.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [18].

  29.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.6].

  30.     ‘Ahaadeeth’, otherwise referred as ‘hadith’ means ‘statement or actions of Muhammad’.

  31.     This phrase ‘fortress of the Muslims’ is in Arabic and refers to the book Fortress of the Muslim, author Said Bin Al-Qahtani.

  32.     ‘Azkar’ is an Arabic word which means devotional act, in which short phrases or prayers are repeatedly recited silently within the mind or aloud.

  33.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.9.5].

  34.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49].

  35.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-04 (Statement of facts of which the deponent is aware relating to why the order should not be made’ dated 24 February 2020), [9].

  36.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [51] - [52].

  37.     SOFN, [20].

  38.     SOFN, [21] – [23].

  39.     SOFN, [24] – [25].

  40.     SOF, [31].

  41.     SOFN, [47].

  42.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [8].

  43.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [50].

  44.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.2].

  45.     SOF [20]

  46.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.6].

  47.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.6].

  48.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.6.4] – [49.6.5];

  49.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.1] – [49.5].

  50.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.3].

  51.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.4].

  52.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.7].

  53.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.8].

  54.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.9].

  55.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.13].

  56.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.14].

  57.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.17].

  58.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.18].

  59.     Annexure A to SOF (Affidavit of Sandra Booth sworn 26 February 2020), at Annexure SB-03 (Statement of facts as to why the order should be made dated 24 February 2020), [49.15], [49.16].

  60.     Annexure E to SOF, Control 11.

  61.     Annexure E to SOF, Control 11.1(c).

  62.     SOF, [18].

  63.     SOF, [18].

  64.     Annexure G to SOF (Affidavit of FA Robert Garner dated 17 February 2021).

  65.     SOF [19] – [20].

  66.     SOF, [22] – [27].

  67.     SOF, [28].

  68.     SOF [26].

  69.     SOF [29].

  70.     SOFN, [20] – [48].

  71.     SOFN, [20] – [48].

  72.     SOFN, [23].

  73.     SOFN, [26], [33] – [35].

  74.     SOFN, [20] – [25].

  75.     SOFN, [14] – [19].

  76.     SOFN, [37].