ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v DUNCAN ROBERT CROMB [2024] SASC 116

Applicant: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: DR JA LAKE - Solicitor: CROWN SOLICITOR (SA) Respondent: DUNCAN ROBERT CROMB Counsel: MR J WILSON - Solicitor: SHAW LEGAL & ADVISORY Hearing Date/s: 27/08/2024, 12/09/2024 File No/s: SCCRM-23-036363 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v CROMB [2024] SASC 116 Judgment of the Honourable Justice McDonald 20 September 2024 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS CRIMINAL CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS The Attorney-General seeks the imposition of an extended supervision order, submitting that the respondent poses a high risk to the community given the nature of his offending. The Attorney- General further submits that despite the apparent progress of the respondent both in custody and continuing upon his release, the respondent has only been out of custody for a short period of time and for that period has been subject to parole conditions. It was submitted that an extended supervision order is necessary to allow for the continued supervision of the respondent’s progress. The respondent submits that it is for the Attorney-General to establish that an extended supervision order is required to mitigate the risk the respondent poses to the community, which on the respondent’s submission, the Attorney-General has not done. In any event the respondent further contends that an extended supervision order is not required due to a combination of factors including: the lack of criminal antecedents and hence absence of entrenched recidivist behaviour; the fact that the respondent has not contacted any of his former associates; and that the respondent has made significant personal progress with the help of therapy sessions. -- 1 of 30 -- Held: The application for an extended supervision order is granted – but for a shorter period, being 12 months, than that applied for. Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 5(ca), s 7, s 9(1); Criminal Law Consolidation Act 1935 (SA) s 83CA(1)(b), referred to. Cromb v The King; Pay v The King [2024] SASCA 8; Attorney-General v Grosser [2016] SASC 49, considered. -- 2 of 30 -- ATTORNEY-GENERAL (SA) v CROMB [2024] SASC 116 Criminal: Application McDONALD J. 1 On 2 June 2023, Mr Cromb was sentenced to two years, six months and 19 days imprisonment with a non-parole period of 18 months for the offence of possessing a document or record containing information of a kind likely to be of practical use to a person committing or preparing a terrorist act.1 The sentence was backdated to commence on 4 March 2022, when Mr Cromb was first taken into custody. 2 On 27 September 2023, the Attorney-General filed an application that Mr Cromb be made the subject of an extended supervision order (‘ESO’) under s 7(1) and s 9(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). The basis of the application is that Mr Cromb is a high-risk offender who poses an appreciable risk to the community if not supervised under such an order. 3 Mr Cromb opposes the order being made. 4 There is no dispute that Mr Cromb is a high-risk offender as defined in s 5(ca) of the HRO Act because he is a “terror suspect” who is serving a sentence of imprisonment. 5 The issue on this application is whether Mr Cromb poses an appreciable risk to the safety of the community if not supervised under an ESO. Background to the application 6 As I have said, the Attorney-General filed the application for an ESO on 27 September 2023. The application first came before the Court on 4 October 2023. On that occasion, the hearing was adjourned to enable Mr Cromb’s counsel to obtain instructions. The application next came before the court on 25 October 2023, at which time a report was ordered from a prescribed health professional to report on the likelihood of Mr Cromb “committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence”.2 Counsel for the Attorney-General advised the Court that at that time an interim supervision order was not sought as Mr Cromb’s relevant expiry date was not until 24 September 2024. 1 Criminal Law Consolidation Act 1935 (SA) s 83CA(1)(b). 2 Criminal Law (High Risk Offenders) Act 2015 (SA) s 7. -- 3 of 30 -- [2024] SASC 116 McDonald J 2 7 The matter next came before the Court on 22 May 2024. At that time Mr Cromb remained in custody. In the intervening period a comprehensive report had been provided by Dr Paul Furst. 8 On 9 July 2024, Mr Cromb was released from custody on parole. His parole conditions include non-intensive electronic monitoring with a curfew. His parole is due to expire on 22 September 2024, which means he will only have had the benefit of supervision in the community for two and a half months. Parole Board report 9 At the request of Mr Cromb’s counsel, a report was ordered from the Parole Board addressing Mr Cromb’s compliance with his parole conditions. That report was provided on 20 August 2024. 10 The Parole Board expressed the view that given the relatively short period of time that Mr Cromb has been in the community, it was “too early to form a view about compliance particularly given that he is a high-risk terror suspect”. 11 The Parole Board reported that to date Mr Cromb has complied with his parole conditions and is engaging with a psychologist, Ben Stewart, on a fortnightly basis. His drug and alcohol tests have all been negative, he attends supervision as directed, and engages in the social inclusion program which provides social support including activities such as fishing, gardening and hiking. Mr Cromb has also recently commenced part time employment, working two days a week as a shoe repairer. Prior to his incarceration he had previously worked in this role. OARS report 12 Mr Cromb has also been receiving the assistance of the Offenders Aid and Rehabilitation Services of South Australia (‘OARS’), both whilst in custody, and since his release into the community. I have been provided with two reports from this organisation. The first, dated 16 August 2024, provides details of the OARS crisis emergency accommodation that has been provided to Mr Cromb. In that report the author notes: Mr Cromb has engaged well throughout his tenancy thus far and has adhered to tenancy requirements and expectations with no visitors on site, no illicit substances, no illegal activity, rent paid on time, no property damage or concerns with household management. There has been no reports of complaints and his engagement with Senior case management has been respectful, friendly and responsive when contacted. 13 The second report dated 19 August 2024, was written by Mr Cromb’s primary case manager. In that report she sets out the involvement that Mr Cromb has had with OARS. He commenced receiving professional visits with OARS case managers on 16 May 2022, whilst still in custody. The purpose of these visits was to commence preparing Mr Cromb for his release by providing mentoring, exploring accommodation options and identifying supports in the community. -- 4 of 30 -- [2024] SASC 116 McDonald J 3 14 The case manager noted that Mr Cromb actively participated in post release planning and identified post release goals, which included seeking employment, education and engaging in community-based activities. 15 Since his release from custody Mr Cromb has typically had three appointments each week with his case manager. During that time, in addition to gaining employment, Mr Cromb has applied for a Certificate IV in Surveying and Spatial Information Services with TAFE SA, he volunteers twice a week at his local community garden, engages in line dancing at a community centre, he is intending to attend at a book club at his local library and is actively exploring other avenues to develop pro-social connections in the community. 16 Mr Cromb’s case manager has indicated that OARS will continue to support him in the community regardless of whether there is an ESO in place. 17 Whilst all of the indicators suggest that Mr Cromb has been compliant with his parole conditions, it should not be overlooked that he has only been back in the community for a very short period of time. Personal circumstances 18 It is necessary to consider Mr Cromb’s current situation in the broader context of his background and the nature and circumstances of his offending. 19 Mr Cromb had a somewhat unusual upbringing. He was born in New Zealand and was the eldest of seven siblings. His parents moved to Australia when he was five and he attended at a Christian school for a couple of years before his parents made the decision to home school him. It would appear that decision was made on the basis that Mr Cromb’s parents held strong Christian values and wanted to bring their children up in a more Christian environment. The family’s brand of Christianity was non-denominational, but evangelical, they read bible stories, said grace and went to church on a weekly basis. 20 Growing up, Mr Cromb had a limited social exposure and although his family would meet up with other families who home schooled, he did not develop any close friends. Mr Cromb preferred to engage in solitary activities. 21 Mr Cromb completed SACE, by doing some subjects at an open access college. He commenced studying a Bachelor of Science (Biodiversity), however dropped out in second year because he found the social side of university overwhelming. 22 In his twenties, Mr Cromb considered becoming a Catholic priest (his family had converted to Catholicism when he was 16). He decided to become a Franciscan and remained in that order for about four and a half years, moving to Melbourne, then Sydney, and finally to the United States. -- 5 of 30 -- [2024] SASC 116 McDonald J 4 23 In his late twenties Mr Cromb lost his faith and began to struggle with his beliefs, ultimately abandoning his theological studies. 24 After leaving the order Mr Cromb returned to Australia, firstly living at home, then moving to a share house. It was at about this time that he started to work in the shoe repair industry. 25 Mr Cromb continued to be socially isolated. He has only had one romantic relationship and few friends. He became disconnected from his family and spent considerable time on the internet where he became aligned with viewpoints expressing dissatisfaction with the current political system. 26 It was not long after this, in about 2017, that Mr Cromb developed an interest in ideas and ideology which were increasingly right wing and fascist and espoused white supremacist views, through internet sites, discussions online and various podcasts he met like-minded people. This resulted in Mr Cromb coming across a Facebook group called “the Lads Society” run by Thomas Sewell in Melbourne. Mr Sewell was the national founder of the Lads Society. Mr Cromb became aware that Mr Sewell wanted to start an Adelaide chapter. 27 Mr Cromb, with the assistance of others, formed the South Australian Lads Society and was involved in the recruitment and indoctrination of other members. 28 Initially Mr Cromb communicated with Mr Sewell on Facebook however the circumstances changed after the Christchurch massacre. The group was banned from Facebook, leaving Telegram as the only social media channel available. Notwithstanding this, they continued and created a front group called the SA Men’s Health Club which was the public-facing subgroup of the National Socialist Network (NSN) and the European Australian Movement (EAM). NSN/EAM subscribe to a Nationalist and Racist Violent Extremism (NRVE) ideology, focussing on National Socialism and Esoteric Nazism.3 29 Members of NSN/EAM regularly appeared on mass in public, masked, wearing all black, engaging in extremist and divisive behaviour. By way of example, approximately 40 members (including Mr Cromb) attended the Grampians National Park in Victoria in January 2021, publicly chanting white supremist slogans.4 Encrypted posts on Telegraph attach photographs of NSN/EAM members performing the Nazi salute outside the Holocaust museum in Wakefield St, Adelaide,5 burning an Aboriginal flag at the St Kilda Adventure playground touting “Happy Invasion Day” and protesting outside of the Adelaide Magistrates Court in response to the arrest of NSN/EAM members.6 Throughout 3 FDN 3, Affidavit of Julie-Anne Lake made on 27 September 2023 at JAL-6 (Affidavit of Scott Dawson dated 4 April 2023) (‘Dawson Affidavit’) at [38]-[39]. 4 Ibid at [26]. 5 Ibid at [30]. 6 Ibid at [33]. -- 6 of 30 -- [2024] SASC 116 McDonald J 5 this time Mr Cromb held a leadership position in the group and was at one point described as its “chairman”. The circumstances of the offence 30 On 7 April 2021, police attended at an address where Mr Cromb resided with others. 31 Upon entering the property, police observed a Nazi swastika flag on display in the loungeroom, covering a bookshelf. They also located various national socialist books, framed photographs of Hitler and other SS members/Nazi leaders, as well as a range of NRVE materials in the form of flyers, stickers, books, and notebooks. 32 In Mr Cromb’s bedroom the police located the material that became the subject of the offence with which he was charged. These were: 1. A hardcopy document titled “A Practical Guide to the Strategy and Tactics of Revolution” by David Myatt (‘the Myatt book’), located inside a bookcase; and 2. Three electronic copies of a document titled “2083 – A European Declaration of Independence” by Anders Breivik (‘the Breivik documents’) located on two separate hard drives in Mr Cromb’s bedroom. 33 The sentencing Judge described David Myatt as one of the world’s most dangerous extremists and summarised the content of his book in the following terms:7 The document describes four methods of how to conduct assassinations of individuals; terror bombing including where civilian casualties are probable; sabotage of infrastructure including roads, communication, television transmitters, airports, railways, power stations, food supplies, businesses, shops and financial institutions, and terror campaigns directed at enemies. 34 In Cromb v The King; Pay v The King,8 in discussing the gravity of the offending, the Court of Appeal added:9 In 2021, David Myatt was listed as one of the world’s most dangerous extremists. The document describes four methods on how to conduct assassinations of individuals, terror bombing (including targets where civilian casualties are probable), sabotage of infrastructure (including roads, communication, airports, railways and the like), and terror campaigns directed at enemies. 7 FDN 3, Affidavit of Julie-Anne Lake made on 27 September 2023 at JAL-1 (Sentencing Remarks of her Honour Judge Tracey dated 2 June 2023) (‘Sentencing Remarks’) at 1-2. 8 [2024] SASCA 8 (‘Cromb and Pay’). 9 Ibid at [100]. -- 7 of 30 -- [2024] SASC 116 McDonald J 6 35 Anders Breivik is a Norwegian terrorist who killed 77 people during a terrorist attack in Norway on 22 July 2011. The sentencing Judge also described the Breivik documents. Her Honour said:10 This material is said to present advanced ideological, practical, tactical organisational and rhetorical solutions and strategies for all so-called patriotic minded individual movements. It contains specific instructions for people on funding operations, avoiding suspicion from relatives, neighbours and friends. The document highlights that the preferred method is to attack in a violent and deceptive form with limited forces of one to two people, noting that it is better to kill too many people than not enough. The document discusses in detail how to plan operations and prepare for attacks stating ‘Violence is the mother of change’. 36 During the course of the examination of the contents of the hard drives located in Mr Cromb’s bedroom, police located evidence of web searches for the Christchurch massacre, imagery of Brendan Tarrant, the Christchurch shooter, and a screenshot of a recording of the Christchurch attack. 37 These hard drives also contained NSN ‘Lads Society’ imagery and other images consistent with NRVE ideology. Also located were documents and links to documents including the ‘NSN Activism manual’, ‘The war on white Australia – a case study on the Culture of Critique’ and ‘How to start and train a militia unit’. 38 In addition, there were numerous documents located on Mr Cromb’s electronic devices that related to the running of the NSN/EAM group. These included minutes recording discussions about expansion, recruitment and the induction of members. 39 It was only after the police had an opportunity to interrogate Mr Cromb’s electronic devices that he was arrested. That took place on 4 March 2022. By that time, he had moved out of the premises that the police had searched and was living out of his car. Section 83CA of the Criminal Law Consolidation Act 1935 (SA) 40 Section 83CA provides: (1) A person who, without reasonable excuse— (a) collects or makes a record of information of a kind likely to be of practical use to a person committing or preparing a terrorist act; or (b) has possession of a document or record containing information of that kind, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) If a court finds a person guilty of an offence against this section, the court may order the forfeiture of anything that has been seized and consists of, or contains, material 10 Sentencing Remarks at 2. -- 8 of 30 -- [2024] SASC 116 McDonald J 7 to which the offence relates or consists of equipment used for the commission of the offence. (3) A court making an order for forfeiture of any equipment or item under subsection (2) may, if it thinks fit, allow the offender or any other person an opportunity to retrieve (in accordance with any directions of the court) specified records, or other material, not involved in the commission of the offence from the equipment or item before it is so forfeited. (4) In this section— Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a law of the Commonwealth that replaces that Code; terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code. 41 This section was first considered in Cromb and Pay. In that judgment the Court of Appeal conveniently summarised the nature and purpose of the section. I respectfully adopt that summary:11 [25] Section 83CA was introduced by the Statutes Amendment (Extremist Material) Act 2017 (SA). It is modelled on an offence contained in s 58 of the Terrorism Act 2000 (UK) and is aimed at criminalising the possession of extremist material to provide for the intervention of the criminal law at an early stage in the ‘life-cycle’ of a radical extremist. In enacting s 83CA, Parliament explicitly created an offence involving the possession of material without the need to establish a particular connection between the material and a terrorist act. Section 83CA is directed at the harmful nature of the material possessed by an individual and its use. The maximum penalty of seven years reflects that it is to be treated as a serious offence. [26] That the offence is directed towards material containing information that is likely to be of practical use to a person committing or preparing a ‘terrorist act’ is important. Section 83CA(4) provides that ‘terrorist act’ has the same definition as in Part 5.3 of the Criminal Code (Cth), namely: terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. 11 Cromb v The King; Pay v The King [2024] SASCA 8 at [25]-[30]. -- 9 of 30 -- [2024] SASC 116 McDonald J 8 [27] And further: (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person’s death; or (d) endangers a person’s life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. [28] Given that s 83CA is modelled on s 58 of the Terrorism Act 2000 (UK), it helpful to consider what has been said about s 58. [29] In R v G; R v J (R v G), the Appellate Committee of the House of Lords considered ss 58 and 57 of the Terrorism Act. In relation to s 58, the Committee made the following observations: … the legislation makes it an offence simply to collect, record or possess information of this kind. Parliament must have proceeded on the view that, in fighting something as dangerous and insidious as acts of terrorism, the law was justified in intervening to prevent these steps being taken, even if events were at an early stage or if the defendant’s actual intention could not be established. [30] The Committee held that s 58 focuses on the nature of possessed information rather than the circumstances of possession, thereby rendering an accused liable for the mere possession of an item with prescribed characteristics. The offence is determined through an objective inquiry into the prescribed nature and characteristics of the item in question. (Footnotes omitted) -- 10 of 30 -- [2024] SASC 116 McDonald J 9 The relevant provisions of the HRO Act 42 The object of the HRO Act is set out in s 3. It provides: The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders. 43 Section 7(1) of the HRO Act reads: The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent). 44 Such an application may only be made in relation to an offender who is serving a period of imprisonment or who is already subject to an ESO. It is the former that is relevant to the current application. The application can only be made within 12 months of the date on which the term of imprisonment being served expires.12 45 Under s 7(4) of the HRO Act the Court may, on the application of the Attorney-General pursuant to s 7(1), make an extended supervision order if satisfied that the respondent to the application is a high risk offender within the meaning of s 5 of the HRO Act, and that the respondent poses an appreciable risk to the safety of the community. That is, the power to make the order is only enlivened if the Court is first satisfied that the respondent is a high risk offender and, in addition, it is established that he poses an appreciable risk to the safety of the community if not supervised pursuant to an order. 46 As I have said, there is no dispute that Mr Cromb is a high risk offender. 47 In determining whether to make an ESO, s 7(6) of the HRO Act sets out certain matters that the court must take into account. Relevantly these are: (a) the likelihood of the respondent committing offences of a kind assessed under subsection (3)(a), (b), (c) or (d) (as the case may be) if not supervised under the order; (b) the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court; (c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982; … (e) any relevant evidence or representations that the respondent may desire to put to the Court; 12 Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(2). -- 11 of 30 -- [2024] SASC 116 McDonald J 10 (f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation; (g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole; … (i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act; … (k) any remarks made by the sentencing court in passing sentence; (l) any other matter that the Court thinks relevant. Expert reports 48 I have been provided with four expert reports to assist me in determining whether Mr Cromb should be the subject of an ESO. These were prepared by Dr Taylor Swain who assessed Mr Cromb in custody in September 2022, Mr Luke Broomhall who assessed Mr Cromb for the purpose of sentencing, Dr Paul Furst who provided the Court ordered report pursuant to s 7(3) of the HRO Act, and Dr Ben Stewart who has been providing Mr Cromb with psychological intervention both whilst he was in custody and since his release. Dr Taylor Swain 49 The Sentence Management Unit referred Mr Cromb to Dr Swain for a personality assessment and personal history interview to assist with his placement in prison. Dr Swain interviewed Mr Cromb on 5 July 2022. During that session Dr Swain undertook psychometric testing of Mr Cromb. For that purpose, Dr Swain utilised the Million Clinical Multiaxial Inventory–IV (MCMI-IV). The MCMI-IV is a self-administered personality assessment used to evaluate, diagnose and treat individuals with emotional and interpersonal difficulties. 50 The results of the personality assessment indicated that Mr Cromb did not meet the criteria for a specific personality disorder or type, but instead suggested that he had a schizoid or an antisocial personality style. 51 Dr Swain explained that a combination of these personality patterns may result in a person who displays an image of hardened strength and therefore appears as tough, arrogant, callous and fearless. Similarly, Mr Cromb may present with a callous indifference for the rights of other people, a deficient social conscience, and disdain of traditional ideas.13 Dr Swain further elaborated that the 13 FDN 3, Affidavit of Julie-Anne Lake made on 27 September 2023 at JAL-9 (Report of Dr Taylor Swain dated 5 September 2022) (‘Swain Report’) at 11. -- 12 of 30 -- [2024] SASC 116 McDonald J 11 combination of these personality patterns may too result in a rash willingness to risk harm, fearlessness in the face of threats, and any subsequent punishment may result in rebellious and hostile feelings. 52 Dr Swain said that overall, Mr Cromb presents with personality styles that result in an indifference or disinterest in personal relationships and a tendency to present as hardened in social interactions. Although Mr Cromb did not present as angry or describe feelings of intense anger, Dr Swain opined that his personality profile suggests underlying feelings of anger or hostility that were left untreated, may result in explosive behaviour or interactions. The weight to be placed on Dr Swain’s report 53 Three versions of Dr Swain’s report have been provided for the purpose of these proceedings. The first was heavily redacted and was annexed to an affidavit of Dr Julie-Anne Lake.14 The second version contained fewer redactions and reflected the version of the report that was provided to Dr Furst. The third had yet again fewer redactions and was produced as a consequence of concerns that I raised during the course of submissions about the nature and number of the redactions and the impact that may have on the weight that I could place on the report. 54 Counsel for Mr Cromb, Mr Wilson, objected to the tender of the third version of Dr Swain’s report. That was in large part based on the history that had led up to the production of that document. It is necessary to set out some of that history to put the issues into context. 55 In early November 2023, as a result of the Attorney-General filing this application, correspondence was exchanged between the parties in order to reach an agreement about what materials should be provided to Dr Furst to assist him in the preparation of his Court ordered report. During the course of that correspondence, Mr Cromb’s counsel noted that Dr Swain’s report was heavily redacted and suggested that Dr Furst be provided with an unredacted copy of the report. As mentioned, the report that was provided to Dr Furst was the second version with a reduced number of redactions. 56 On 22 May 2024, the matter came before the Chief Justice. On that occasion his Honour ordered that the Attorney-General file “any material on which it proposes to rely at hearing by 5 June 2024”. 57 On 2 August 2024, Mr Cromb’s counsel wrote to the Attorney-General requesting a copy of the version of the report that had been provided to Dr Furst. There was no response to that request. 58 On 23 August 2024 the Attorney-General provided a further 54 pages of materials. This comprised of the report of Mr Broomhall, a number of transcripts 14 FDN 3. -- 13 of 30 -- [2024] SASC 116 McDonald J 12 of sentencing remarks in relation to NSN/EAM members and an affidavit of Scott Dawson dated 22 August 2024. 59 It was during the hearing on 27 August 2024 that I raised concerns about the redactions in version two of Dr Swain’s report. At that time, Mr Cromb’s counsel indicated that given the history of events that had preceded the hearing, he would object to the tender of any further version of the report. 60 On 12 September 2024 I heard submissions as to whether I should receive the third version of the report. Certain aspects remained redacted. During the course of submissions it became apparent that it was necessary that I have an understanding of the new information that the Attorney-General sought to put before the Court before I could make a ruling. Broadly speaking it fell within two categories. The first were observations about the necessary requirements for Mr Cromb’s accommodation in custody. These were matters like the need to monitor Mr Cromb closely, to limit the number of prisoners that he had contact with and to adopt a cautious approach in selecting any cell mate. I pause there to observe that I have difficulty in understanding why it was seen as necessary to redact this information from the first two versions of the report. Be that as it may, these aspects of the report are of no particular assistance to the Court. 61 The second category of new information related to entries on the Justice Information System (‘JIS’) that suggested that Mr Cromb had been communicating with other prisoners who were in custody on charges similar to Mr Cromb’s. These aspects of the report were potentially more significant and had the potential to cut across the central submission put on behalf of Mr Cromb, that is, that he had ceased to have any involvement with his former NSN/EAM associates or others who subscribe to NRVE ideology. Whilst Mr Cromb’s counsel reasonably conceded that information of this nature had the potential to diminish the force of this submission, he suggested that it is actually consistent with Mr Cromb’s self-report of how his views have transitioned whilst in custody. 62 The first point that was made about Dr Swain’s report is that it was written in July 2022, soon after Mr Cromb was remanded in custody and before he had taken responsibility for his actions and pleaded guilty. It was submitted that the timing of the report limits not only the overall weight that can be placed on it, but in particular to the use that can be made of the information that suggested that Mr Cromb was associating with other white supremacists. The information was general with no details or time frame other than it must have been obtained prior to Dr Swain completing her report. 63 Mr Cromb’s counsel also contended that this aspect of the report was in fact consistent with Mr Cromb’s account to Dr Furst. In his report, Dr Furst recounted Mr Cromb’s description of his experience in prison. He said:15 15 FDN 16, Report of Dr Paul Furst dated 13 April 2024 (‘Furst Report’) at [9.1]. -- 14 of 30 -- [2024] SASC 116 McDonald J 13 Mr Cromb indicated that he had been in prison for nearly two years. He said that quite early on, but not immediately, he began to turn away from his nationalism because he knew that it was detrimental and would continue to be so. He said that he was a bit of a novelty when he first came into prison and the experience of having to explain his beliefs meant that “it made less and less sense to me”. (Emphasis added) 64 I accept the submission by Mr Cromb’s counsel that the information taken from the JIS is not inconsistent with Mr Cromb’s account. It is also unsurprising that having been incarcerated for the first time, Mr Cromb initially gravitated towards like-minded individuals. 65 The final submission made by Mr Wilson, about the overall weight to be given to Dr Swain’s report, is that it was written for the very specific purpose of managing Mr Cromb whilst in custody. Dr Swain made it plain in the report that given Mr Cromb’s remand status at that time, she deliberately did not explore Mr Cromb’s offending behaviour or his underlying belief system, however, recommended that take place in the event that he was convicted. 66 After hearing submissions, I determined to not receive the tender of the third version of Dr Swain’s report. I did so on the basis of the delay in the Attorney- General attempting to put the additional information before the Court and the limited weight of that evidence. 67 I have also taken into account the other issues raised by Mr Cromb’s counsel about the overall weight to be placed on Dr Swain’s report, particularly when considered in context with other more recent and forensically focussed expert reports. Luke Broomhall 68 Mr Broomhall was asked to conduct a forensic psychological evaluation of Mr Cromb, covering his psychological and psychosocial development, antecedent factors relevant to his offending and an evaluation of his adherence or otherwise to extremist beliefs. He was also asked, if possible, to comment upon Mr Cromb’s risk for engaging in violent behaviours towards others. 69 For the purpose of preparing the report, Mr Broomhall interviewed Mr Cromb over two separate occasions, spending a total of three and a half hours with him. In those interviews Mr Broomhall canvassed Mr Cromb’s personal history and, in particular, the circumstances in which he came to adhere to white nationalist views in considerable detail. 70 Mr Cromb explained to Mr Broomhall that at the time that he started to become interested in right wing extremist ideology he was at a particularly low point in his life. He had lost his faith and had become disconnected with his family. He had no friendship group or intimate partner. Mr Cromb’s alcohol intake had increased over this period of time. Between 2017 and 2021 Mr Cromb was -- 15 of 30 -- [2024] SASC 116 McDonald J 14 drinking heavily most days. It was in this context that Mr Cromb started to align himself with nationalists with conservative traditional viewpoints, including white separatism. 71 Mr Cromb told Mr Broomhall that he became involved to such an extent that in 2020 and 2021 he became one of the main leaders in South Australia and was instrumental in keeping the group together. However, despite this, throughout the interviews Mr Cromb repeatedly stated that his intentions have never been violent and that “police had lots of information and there was never any accusation that [he] intended to be involved in any form of violence toward any other individual or group”.16 Mr Cromb maintained to Mr Broomhall that his involvement in these groups was to provide space for the benefit of members for “white based interests” in self-improvement and community values. 72 Mr Broomhall specifically asked Mr Cromb about the publications that were the subject of the charges. Mr Cromb said that he had downloaded the Breivik documents in 2013 as he was spending a lot of time on 4chan17 and there was a lot of discussion about the Breivik manifesto. He said he wanted to understand where Breivik was “coming from”. He explained:18 [I]t seemed to be that Breivik was coming from a Judeo-Christian misogyny viewpoint to fight against Islam and threats to white Europeans. I totally didn’t agree with where he was coming from and I completely disagree with terrorism, violent attacks and murders. I just wanted to know where he was coming from and why he did it. 73 In their discussion, Mr Broomhall put to Mr Cromb that the Myatt manifesto promotes four main methods of covert direct action including assassination, terror bombing, sabotage, and terror campaigns and that it discusses targets which include politicians who are against their cause and judges and magistrates who have sentenced comrades to prison. Mr Cromb reacted strongly against any suggestion that he endorsed any such views and values. He said that whilst he pleaded guilty, he maintained that he did not align with the values related to the violence espoused within this manifesto. 74 Mr Broomhall conducted a psychological assessment of Mr Cromb. He said that Mr Cromb evidenced some traits related to schizoid personality presentation. However, he stopped short of a diagnosis of Schizoid Personality Disorder, as there was a lack of information to substantiate sufficient of the diagnostic criteria. Nonetheless, there were some aspects in Mr Cromb’s profile consistent with schizoid personality features. Mr Broomhall explained “schizoid personality features are a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings occurring across the lifespan”.19 16 Report of Mr Luke Broomhall dated 3 April 2023 (‘Broomhall Report’) at 8. 17 A website where people can post and discuss pictures and other images anonymously. 18 Broomhall Report at 8. 19 Ibid at 9. -- 16 of 30 -- [2024] SASC 116 McDonald J 15 75 Mr Broomhall observed that Mr Cromb’s mental health has fluctuated over his adult life and “it is likely that at varying points he may have suffered from prominent depressive symptoms including sadness, hopelessness, low self-worth and self-esteem, flattened affect and social withdrawal”.20 76 Mr Broomhall expressed the view that it was in the context of Mr Cromb’s upbringing and lack of socialisation, that he became engaged in online research, chat groups, message boards and forums to seek out like-minded individuals. His research and readings led him to viewpoints that reflected his own, mostly drawn to national socialist philosophies. Mr Broomhall observed:21 This seems to align with research and literature in the area which suggests that people become attracted to white nationalist movements for three reasons; a desire to feel significant, attribution of their lack of personal success to another group (an out-group) and a sense of belonging among other white nationalists. (Footnote omitted) 77 Mr Broomhall went on to make further observation that Mr Cromb’s beliefs regarding national socialist groups were formed over a long period of time and were well researched. Risk assessment 78 Mr Broomhall explained that whilst Mr Cromb’s pathway to interest and involvement in white supremacist ideology was easy to understand, assessing his risk to the community was a much more complex proposition. He explained:22 [A] risk assessment around violence and violence potential was much more difficult and beyond the abilities of the current forensic psychological evaluation. Literature in the area suggests that future risk of violence prediction within white nationalist ideology is fraught with significant difficulty. Further, while angry disenfranchised white males commit acts of violence, having those beliefs does not always predict violent behaviour. (Footnote omitted) 79 Mr Broomhall also expressed the view that there were limits as to what he could achieve in the time that he had available to him to speak with Mr Cromb. Although he interviewed Mr Cromb over two sessions for three and a half hours, to fully understand his motivation and behaviour in order to confidently arrive at a conclusion around his risk of engaging in violent behaviour, he said it would take at least eight to 10 sessions with Mr Cromb. On that basis, rather than attempting to conduct a formal risk assessment of Mr Cromb, Mr Broomhall gathered and presented the evidence “for the court to use as appropriate in deliberations regarding Mr Cromb”.23 20 Ibid at 9 21 Ibid at 10. 22 Ibid at 11. 23 Ibid at 11. -- 17 of 30 -- [2024] SASC 116 McDonald J 16 80 Mr Broomhall suggested that tending against Mr Cromb posing a risk of engaging in acts of violence, are the reasons that Mr Cromb became involved in white nationalist groups, as has previously been set out. This aligned with Mr Cromb’s strong denials that he advocated for or supported any form of violence or overt white supremacist tendencies in public. Mr Cromb told Mr Broomhall that whilst he had been involved in the Grampians incident, he did not participate in making white supremacist gestures and was attempting to tone down the behaviour of others who did so. Mr Broomhall also thought that it was a relevant consideration that Mr Cromb does not have a history of violent behaviour, antisocial tendencies or past criminal charges. 81 Mr Broomhall went on to say that despite these positive signs, there were other factors to consider in Mr Cromb’s presentation and profile related to any risk assessment. He explained:24 It is inescapable that alignment with white supremacist ideology introduces the potential for alignment with values, attitudes, and behaviours such as espoused and encouraged in the Myatt documentation and other similar articles and writings. It seems inconsistent, in my view, to be wholeheartedly committed to one part of an ideology but not its behavioural manifestations, despite Mr Cromb’s assertions to the contrary. He had previously aligned with like-minded individuals including Tom Sewell in Victoria and the relationship here following Mr Cromb’s endorsement of white supremacist manifestos and motivations remains unclear. Mr Cromb’s involvement as a senior member in South Australia of the National Socialist Network could not be adequately assessed from the materials gathered in the current assessment. Mr Cromb was involved in the trip to the Grampians and in the gathering at Mount Osmond, however there is no independent verification of his behaviours or role in any of these gatherings. 82 Mr Broomhall was guarded about whether Mr Cromb’s claims about a change in his attitude and values since his arrest were genuine. He said that whilst Mr Cromb had stated that he had no further contact with anyone from white supremacist organisations, and that incarceration had provided time for reflection and afforded him with an opportunity for discussions with indigenous inmates, further assessment and evaluation was required to determine the risk of relapse towards affiliation with white supremacist groups. That was on the basis that in his view Mr Cromb “continues to hold views and values gained over a longer period of time and research on his own part, consistent with white separatist values and alignment”.25 For that reason Mr Broomhall said “it is highly recommended that Mr Cromb is aligned with a Forensic Psychologist capable of assessing over a period of sessions his belief systems, violence potential and providing an alternative viewpoint to potential misinformation gained in his internet and chat forum-based research”.26 24 Ibid at 12. 25 Ibid at 12. 26 Ibid at 13. -- 18 of 30 -- [2024] SASC 116 McDonald J 17 Dr Paul Furst 83 Dr Furst was requested to prepare a report addressing the question of “whether there is a likelihood of [Mr Cromb] committing a terrorist offence, terrorist act, or serious offence of violence”. It follows that the focus of the report covers a broad array of offending, ranging from possessing documents of the type that Mr Cromb was charged with, through to a serious offence of violence, and as extreme as a terrorist act potentially resulting in catastrophic consequences. 84 In order to prepare his report, Dr Furst met with and interviewed Mr Cromb on 17 January 2024 and 21 February 2024. On each occasion he spent two hours with him. Unsurprisingly, Dr Furst discussed with Mr Cromb in some detail, his interest and involvement in national socialism. Dr Furst asked Mr Cromb about what his thinking was at the time he started to become involved in national socialism. He responded that he had been “trying to rationalise [his] feelings of being out of place in society and wanted it to be …so-called traditional”.27 Dr Furst understood that by that expression Mr Cromb meant patriarchal, xenophobic and fascist. Mr Cromb described how he had always been aware of a sense of “otherness” in relation to people from other cultures and once he rejected his Christian beliefs, he was able to justify those feelings of racism and how he was uncomfortable with people from other ethnic groups. It allowed him to feel “justified” in his feelings. 85 Mr Cromb indicated to Dr Furst that he felt a sense of loyalty to the group due to their shared beliefs, that were not accepted by the rest of society.28 Progress in prison 86 At the times of his interviews with Dr Furst, Mr Cromb had been in prison for nearly two years. He told Dr Furst that whilst not immediately, early on in his sentence he began to turn away from nationalism because he knew that it was detrimental and would continue to be so. He said that as he had more experience with other people and listened to their stories, he felt like he could not continue with his white nationalist path because what he had been through seemed trivial when compared to what others had experienced. 87 Mr Cromb told Dr Furst that whilst in custody, he had some contact with the Inclusion Support Program run by the Department for Human Services for people at risk of violent extremism. He had also commenced counselling with Mr Ben Stewart and that was planned to continue once he was released. Mr Cromb denied any ongoing national socialist ideology or beliefs and said that he had “turned away” from those views. 27 Furst Report at [8.10]. 28 Ibid at [8.17]. -- 19 of 30 -- [2024] SASC 116 McDonald J 18 Opinion 88 Dr Furst observed that Mr Cromb appeared to have turned to the priesthood in seeking a sense of belonging and acceptance, as well as a role in society that did not require intimacy with women. After he lost his faith, he failed to complete his theological training. It was against this backdrop that Mr Cromb became attracted to national socialism. Dr Furst explained:29 … It is likely that a developing sense of injustice, fuelled by inadequacy and failure, led him to explore an ideology in which he was not a failure, but in fact superior despite a lack of commensurate achievement. In the background, his parents’ deteriorating relationship threatened the sense of stability to which he had retreated and his anxiety and anger about this, combined with his father’s seeming resignation to the dissolution of the marriage rather than fighting to save the traditional marriage is likely to have shaped and reinforced his beliefs in the importance of a ‘traditional’ patriarchal society. The disintegration of the family unit, uninspiring menial work and a lack of confidence with women left him desperately seeking a sense of belonging and comradeship, as well as an ideology that promoted superiority based merely on ‘race’ rather than achievement and allowed a target for him to project all of his anger at his mother for the breakdown of the marriage and his father for failing to fight for it. In addition the Lad’s Society and National Socialism provided some excitement in a mundane life and the opportunity for leadership and status that was lacking in his life. (Emphasis in original) 89 Dr Furst found no evidence that Mr Cromb suffers from any mental disorder. He said that whilst he clearly had a number of issues that require further exploration in therapy, he could find no evidence that he suffers from Schizoid or Antisocial personality traits. Dr Furst also found that Mr Cromb did not meet any of the key diagnostic criteria for Antisocial Personality Disorder or even personality traits. Rather, the explanation for his offending “is contained within his ideology and driven by an underlying sense of inadequacy and he uses his ideology to justify his actions and opinions in contrast to the Antisocial person who would simply not care”.30 The likelihood of Mr Cromb committing a terrorist offence, terrorist act, or serious act of violence 90 In his report, Dr Furst made it plain that whilst there is no evidence to suggest that it can be predicted whether someone will commit a criminal act, even with a moderate degree of accuracy, the process is even more tenuous when the act in question is a terrorist act.31 Dr Furst explained:32 … prediction is hampered by the base rate of offending. Even in the relatively more common areas of sexual and violent offending, we can give only broad predictions or assessments, but the rate of terrorist offending is already incredibly low and the rate of re- 29 Ibid at [11.3]-[11.4]. 30 Ibid at [11.5]. 31 Ibid at [11.6]. 32 Ibid at [11.6]. -- 20 of 30 -- [2024] SASC 116 McDonald J 19 offending is minute such that any prediction of a person’s likelihood of committing a further offence is little more than an educated guess. At best, we can advise, slightly better than an informed lay person, that a person is either very unlikely to commit an offence (ie is a non-offender), is very likely to commit another offence (ie is voicing active commitment to NRVE ideology, or what Mr Davis has described as a ‘blatant’ example that results in clinical override of the statistical prediction) or the person lies somewhere in the middle of “maybe”. Clearly, Mr Cromb cannot be said to be no risk, nor is he an example of such a blatant and obvious risk to the community. Rather, he fits into the ‘maybe’ category. Even in populations with a much higher base rate of offending, such as violent or sexual offending, risk prediction at the low and high ends of the spectrum are generally reliable, but risk prediction for those in the middle, or at ‘average risk’ of re- offending is much less robust. (Emphasis in original) 91 Dr Furst did however attempt to assess whether Mr Cromb, sitting in the ‘maybe’ category, might be closer to one end of the spectrum or the other. Relevant to this assessment Mr Cromb historically had a sense of “a need to defend against threats, a strong desire for identity, meaning or belonging, a need for status, excitement, comradeship and adventure, he was susceptible to indoctrination and displayed “us and them thinking” leading to attitudes that would justify offending”.33 Dr Furst explained the relevance of this:34 … This combination of factors would have led me to believe that he was a higher-than- average risk of offending prior to or at the time of his arrest. He has no history of violent behaviour and it is difficult to determine how at risk he was of engaging in a violent extremist attack. On the one hand he has no history of violence, but at the same time the material he collected supported and outlined strategies for this approach. He also was involved in developing a group of young men in a soldier mentality through development of fitness, discipline, hierarchy and “growing up” that can be associated with preparation activities for an attack. (Emphasis in original) 92 Dr Furst raised a concern that although Mr Cromb now claims that he no longer subscribes to a national socialist ideology, the sentencing remarks would suggest that as recently as March 2023 Mr Cromb continued to hold these beliefs. Dr Furst went on to say:35 … it is difficult to accept that Mr Cromb has gone from so completely firm in his beliefs and indoctrinated into the national socialism movement that he held a place of leadership to renouncing them, but this is balanced by his similar pattern of indoctrination into the catholic priesthood only to abandon his faith. It appears that he is a man susceptible to a welcoming environment. Certainly, there is nothing in his current presentation or the lack of information provided about his progress in custody that suggests that he is completely disingenuous in his movement away from NRVE ideology. 93 Dr Furst said that his primary concern was that even with the best of intentions, Mr Cromb is at risk of feeling isolated and without purpose when 33 Ibid at [11.8]. 34 Ibid at [11.8]. 35 Ibid at [11.9]. -- 21 of 30 -- [2024] SASC 116 McDonald J 20 released.36 Dr Furst made the observation that Mr Stewart is an excellent choice of clinician for follow up in the community and the reduction of Mr Cromb’s risk of reoffending is “tied to helping him develop better self-esteem, helping him to find meaning and belonging within mainstream society and resisting any return to his previous thinking or behaviours”.37 94 In terms of an assessment of Mr Cromb’s overall risk, Dr Furst summarised the situation as follows:38 I have considered the proposed conditions and the follow-up arrangements outlined by Mr Cromb. Mr Stewart is an excellent choice of clinician for follow-up and his experience and clinical acumen will go a long way to helping Mr Cromb rehabilitate and adjust to a life without NRVE values. In the absence of any mental disorder or disability, the reduction in his risk of re-offending is really tied to helping him to develop better self-esteem, helping him to find meaning and belonging within mainstream society and resisting any return to his previous thinking or behaviours. This will largely be driven by his engagement with DHS and a supervising parole officer and his engagement with Mr Stewart. It is also expected that he will have some ongoing supervision from the police counter-terrorism branch who can draw on the expertise of the Fixated Threat Assessment Unit for the assessment and management of risk in the community. 95 In conclusion, Dr Furst opined that Mr Cromb cannot be considered “no risk” of “future defined offending” and “the most likely scenario would be a sense of isolation and purposelessness returning, leading him to seek out people online and/or in person who have previously provided a sense of belonging”.39 In attempting to place a numerical value on the risk, Dr Furst said “I cannot be more specific about the ‘likelihood’ of him committing a defined offence, but it is probably less than 50%”. He explained that “does not mean that a less than 50% chance is not significant when the consequences are high”.40 96 The difficulty with that observation is that given the range of the seriousness of the offences that Dr Furst has been asked to consider, the range of consequences if such an offence was committed, will be equally as broad. 97 Given the level at which Dr Furst measured Mr Cromb’s risk to be, he recommended the best way in which to reduce that risk is for some form of supervised release, in which he can reintegrate into society and be supported with counselling and oversight from relevant agencies. Dr Furst suggested that such an approach would serve two purposes “not only will this increase the likelihood that he will not reoffend, but it will also allow agencies to see whether his change of heart is put into practice and legitimate and allow them to intervene with further assistance if it appears he has returned to his former patterns of behaviour”.41 36 Ibid at [11.9]. 37 Ibid at [11.10]. 38 Ibid at [11.10]. 39 Ibid at [11.10]. 40 Ibid at [11.10]. 41 Ibid at [11.10]. -- 22 of 30 -- [2024] SASC 116 McDonald J 21 Dr Ben Stewart 98 As previously mentioned, Dr Stewart commenced working with Mr Cromb whilst he was still in custody. That consisted of one meeting in person and four sessions over the telephone, that took place between 13 March 2024 and 27 June 2024. Between his release and the preparing of the report (12 August 2024), Mr Cromb had met with Dr Stewart in person on two occasions. 99 During these sessions, Dr Stewart explored the circumstances of Mr Cromb’s offending and his pathway to becoming involved with white nationalist ideology. Dr Stewart described Mr Cromb as demonstrating insight and what appeared to be genuine remorse. 100 Dr Stewart said that in his sessions with Mr Cromb, Mr Cromb has consistently denied continuing to adhere to white nationalist views or having contact with people who were involved in this movement, either currently, or historically. Dr Stewart expressed the view that since released from custody, Mr Cromb now has increased opportunities to engage in behaviours that are demonstrative of this shift, and he has done so. 101 Dr Stewart also spoke favourably of Mr Cromb’s level of engagement with him. He said:42 Mr Cromb has engaged consistently and meaningfully during our intervention sessions to date. He has been frank and forthcoming in our sessions and has not tried to avoid questions which may be perceived as difficult. Mr Cromb has been set homework tasks as a part of our intervention to expand and consolidate on the focus of our sessions ... His engagement in these has been mixed but positive on the whole. When he has completed the set tasks his work indicates meaningful thought and engagement with the task. 102 Dr Stewart was provided with a copy of the report prepared by Dr Furst and asked whether he concurred with Dr Furst’s views, particularly in relation to the ability to measure the risk of terrorist offending and also as to Dr Furst’s ultimate conclusion about the risk posed by Mr Cromb. 103 Dr Stewart agreed with Dr Furst’s opinion regarding the inception of Mr Cromb’s involvement with white nationalism and subsequent offending. He also agreed with Dr Furst’s opinion that Mr Cromb showed no signs of any mental disorder. Dr Stewart was unable to offer an opinion of Mr Cromb’s risk of offending, as he had not conducted a thorough risk assessment. Further, Dr Stewart expressed the view that it would be inappropriate for him to do so, given his therapeutic relationship with Mr Cromb. 104 Dr Stewart was, however, in a position to comment more generally on Dr Furst’s position regarding risk assessment in this area. He agreed that 42 Report of Dr Ben Stewart dated 12 August 2024 (‘Stewart Report’) at 6. -- 23 of 30 -- [2024] SASC 116 McDonald J 22 accurately assessing the risk of reoffending in this cohort is very challenging and it remains an under researched area. Dr Stewart said:43 Any research in this area is difficult due to the rarity of radicalised individuals, the low base rate of acts of violent extremism, and the heterogeneity of extremist populations (e.g. left- versus right-wing extremism, religious based extremism etc) and their pathways to offending. Furthermore, while all terrorists have gone through a process of radicalisation prior to their acts, not all radicalised individuals will go onto committing acts of violent extremism. (Footnote omitted) 105 Dr Stewart concluded his report by advising that Mr Cromb has the opportunity to continue to engage in intervention with him moving forward into the future. The Attorney-General’s submissions 106 It was the Attorney-General’s submission that the evidence establishes that Mr Cromb is an appreciable risk to the community if not supervised under an ESO, and in those circumstances I should exercise my discretion to make the order. In summary, counsel for the Attorney-General, Dr Lake, submitted that the offending was particularly serious in the context in which it occurred and, given the short duration that Mr Cromb has been out of custody, it would put the community at considerable risk to simply rely on Mr Cromb’s self-report that he has rehabilitated and now no longer holds white nationalist views. It was submitted that the only way in which the community can be afforded with a level of protection is to place Mr Cromb on an ESO. 107 As to the seriousness of the offence, Dr Lake relied on the duration and extent of Mr Cromb’s involvement in white supremist organisations. He had become interested in such ideologies as far back as 2013, and at the height of his involvement, had taken on a senior role and was actively involved in all aspects of the organisation’s business. Mr Cromb associated with and was in contact with other senior members across Australia and had attended events in both South Australia and interstate. The group in which he was involved engaged in public demonstrations and actions which promoted discrimination, racism, violence and hate. 108 It was also said to be a significant factor that not only were the materials that were the subject of the charge very extreme in nature, Mr Cromb was also in possession of other similar material and documents. 109 Dr Lake also relied on the fact that Mr Cromb had an interest in firearms, having previously owned a firearm and held a firearms licence. Whilst it was not suggested that I could draw an inference from this information that Mr Cromb was 43 Ibid at 7-8. -- 24 of 30 -- [2024] SASC 116 McDonald J 23 likely to commit a firearms offence, it demonstrated knowledge and capability that would be of use in the event that a terrorist attack was planned. 110 Whilst Dr Lake accepted that there was no evidence to suggest that Mr Cromb had reconnected with any white supremacist organisation, it had to be evaluated in the context that he had only been out of custody for about six weeks. The concern raised by the experts is that if Mr Cromb again becomes lonely and finds that his life is without purpose, he is at the greatest risk of reaching out to his former associates or, alternatively, being receptive to contact from them. 111 Dr Lake also relied on Dr Furst’s risk assessment that evaluated Mr Cromb’s risk of reoffending as probably being less than 50 per cent, however reinforced that when the risk relates to a possible terrorist offence, that is a grave risk for the community, when the potential consequences are so serious. 112 Dr Lake concluded her submissions with the following summary of the applicant’s position:44 Now when this man was left to his own devices previously, when he was lonely and had no sense of purpose, the evidence is consistent with him having drank heavily, and being instrumental in establishing NSN in this state. And now of course, your Honour, it is a matter for you but I suggest when you look at all the evidence, the organisation that he was involved in, your Honour must find that there’s an appreciable risk to the safety of the community. Mr Cromb’s submissions 113 It was Mr Wilson’s submission that it is for the applicant to establish that if not supervised under an ESO, the respondent poses a substantial risk to the community, and that has not been demonstrated. 114 There were three central themes to Mr Wilson’s submissions. These were: Mr Cromb’s lack of criminal antecedents and hence an absence of entrenched recidivist behaviour; the positive steps taken by Mr Cromb whilst in custody and since his release on parole; and the absence of any evidence suggesting that he poses any real risk to the community. Absence of criminal antecedents 115 Mr Cromb has no previous criminal convictions. There is nothing to suggest that he has been other than of good character prior to his involvement with the white supremacist organisations. It was submitted that as a starting point, this places Mr Cromb in a category of offenders with a reduced risk of reoffending in contrast to most others who are the subject of applications for an ESO. Counsel for Mr Cromb put to the Court:45 44 T15. 45 T24. -- 25 of 30 -- [2024] SASC 116 McDonald J 24 This might be a change from a number of the matters that your Honour sees in this court, people coming back with entrenched behavioural patterns, recidivist offenders where it is quite easy for the court to make a finding with the degree of confidence that the court’s required to have before imposing an extended supervision order about an ingrained behavioural proclivity or pattern. That is not the case, with respect, in relation to Mr Cromb. Yes, he was a member of the group, the Men’s Health Club for a period of time. Yes, one of the documents, I think it was obtained by him when he was trawling the internet back in 2013, before it was an offence to even process such documents, so in that respect one of the documents is an offence of retaining a document rather than going out and seeking it knowing that it’s an offence to commit but he doesn’t have any ingrained pattern of violence, of hostility or anything of the sort that many respondents, I would suggest, might come before this court when they’re met with the same application that Mr Cromb is. 116 Whilst this is clearly a relevant factor, it should be observed that in determining whether to impose an ESO, there is no requirement under the Act that a person who is the subject of an application has an extensive or serious criminal record. The fact that the commission of a single offence is sufficient to qualify as a “high risk offender” reflects an appreciation that even those on their first foray into criminal conduct may pose an appreciable risk to the community if not placed under supervision. 117 It is of note that whilst not arrested until 4 March 2022, the Breivik document located in April 2021, was obtained by Mr Cromb as early as 2013 and retained by him since that date. During the entirety of this period, Mr Cromb continued to subscribe to an ideology that was based on racism, hate and violence. To put it into context, Mr Cromb had downloaded the Breivik document four years before he became organisationally involved in the white supremist movement and some 10 years prior to sentence. Further, when interviewed by Mr Broomhall almost two years after the offence and only a few months before sentence, Mr Cromb was continuing to express views consistent with white supremist values. 118 In such circumstances, in considering the risk that Mr Cromb poses to the community, the absence of any prior convictions does not carry the weight it otherwise might. In determining this application, it is necessary for the Court to consider not only the nature of the offence committed by Mr Cromb, but also the existence of such longstanding and entrenched extremist views. Positive steps taken whilst in custody and on parole 119 The second circumstance relied upon by Mr Cromb are the positive steps that he has taken whilst in custody and since his release on parole. It was submitted that:46 Had there been anything about Mr Cromb's presentation during his time in custody, whether it be his engagement within the prison system, his interactions with other prisoners or staff, his communications with people using the prisoner telephone system that caused concern, the receipt or sending of mail that raised suspicions or concerns or visitors coming in that were thought to fall into a category of people that Mr Cromb would be best not to 46 T22. -- 26 of 30 -- [2024] SASC 116 McDonald J 25 associate with. The attorney could have furnished your Honour with information on any of those topics … 120 To the contrary, there was nothing to suggest that Mr Cromb was anything other than a model prisoner, who exhibited no behaviour demonstrative of him continuing to wish to associate with others with whom he previously shared extreme white supremacist views. 121 It was also submitted that since his release Mr Cromb has taken significant and positive steps to obtain employment, to obtain housing and to engage in prosocial activities and build relationships, which both Mr Broomhall and Dr Furst have identified as the most important protective factors for him to avoid feeling a sense of a lack of purpose and isolation which may lead to reoffending in the future 122 In response to submissions made by the applicant about the very short period of time that Mr Cromb has been in the community, Mr Wilson suggested that it should not be held against him, in circumstances in which, for reasons not explained, Mr Cromb was kept in custody for an additional 10 months and 16 days after the expiry of his non-parole period. It was submitted that the Parole Board had the option of maintaining a careful eye over Mr Cromb by releasing him when his non-parole period expired, leaving him with a substantial period of time on parole. It was submitted that an ESO should not be put in place to satisfy a desire on the part of the Parole Board or the Attorney-General:47 to just see how a person released on parole will go, to see how they might perform, particularly in circumstances where the Parole Board release that prisoner with a relatively short period of time left to serve on their head sentence. 123 I agree that an ESO should not be made to “see how a person released on parole will go”. The only question for me is whether Mr Cromb poses an appreciable risk to the community, and whether it is appropriate that I make such an order. It follows, therefore, that the fact that Mr Cromb was held in custody beyond the expiry of his non-parole period, can have little weight beyond informing whether Mr Cromb does in fact pose that risk. Absence of evidence establishing that Mr Cromb poses an appreciable risk to the community if not supervised under an ESO 124 It is the role of this Court to determine whether Mr Cromb poses an appreciable risk to the community if not supervised under an ESO. Whilst the experts endeavour to assist the Court by quantifying that risk, it does not derogate from the responsibility of the Court to make the determination. 125 It was Mr Wilson’s submission that there are two fundamental flaws with the efforts of the experts and the Attorney-General to measure the risk posed by Mr Cromb. These are that Dr Furst himself accepts that his attempts to quantify the 47 T21-22. -- 27 of 30 -- [2024] SASC 116 McDonald J 26 risk is little more than an “educated guess”.48 Secondly, that the range of offences under consideration is so wide that there is a lack of clarity around the nature of the threat that it is suggested that Mr Cromb poses. 126 I have already set out the relevant passages from Dr Furst’s report that relate to his attempts to quantify or measure the risk posed by Mr Cromb. I will not repeat them. There is some force in the submission made by Mr Wilson that there is a degree of artificiality in any attempt to apply some form of mathematical formula to arrive at a percentage reflecting the likelihood of the commission of a further terrorist offence. 127 There is equally force in the submission that the range of offences that falls within the definition is so broad that such an exercise in quantification, is of limited value in considering the question of a risk to the community. 128 It was Mr Wilson’s submission that the risk to the community is that described by the Court of Appeal in Cromb and Pay when the Court said:49 The circumstances of possession are important and inform the risk that the material might have become available to someone else. There was a real risk of the documents becoming available to someone open to being radicalised, including to violence. The material was possessed by persons who held, or had held, leadership positions in white supremacist groups, the purpose of which was to attract members and radicalise them. 129 Based upon that observation, the submission was made that the only risk posed by Mr Cromb was that:50 [H]e was affiliated with a group who would recruit and indoctrinate others it increased the likelihood of those documents containing information that could be of practical use in committing a terrorist offence falling into the wrong hands and leading to either or both the radicalisation of others or the assistance or motivation or practical assistance that might be provided for others to commit a terrorist act. 130 With respect to Mr Wilson, I do not agree that what fell from the Court of Appeal in the passage cited above limits the manner in which this Court can now assess the risk posed by Mr Cromb. The Court of Appeal were considering whether a sentence that had been imposed for an offence that involved the possession of extremist documents was manifestly excessive. It was important in that context to consider the circumstances in which the documents were in Mr Cromb’s possession. That did not detract from the earlier passage in the judgment in which the Court made the following observation about offences of this type:51 Offences involving material which can be characterised as being terrorist have the potential to be very harmful and are to be treated seriously. We agree with the respondent that this is reflected in the Explanatory Memorandum to a Bill that was recently enacted by the 48 Furst Report at [11.6]. 49 Cromb v The King; Pay v The King [2024] SASCA 8 at [101]. 50 T27-28. 51 Cromb v The King; Pay v The King [2024] SASCA 8 at [31]. -- 28 of 30 -- [2024] SASC 116 McDonald J 27 Commonwealth Parliament creating a similar offence to s 83CA. The Explanatory Memorandum to that Bill includes the following: By attaching criminality to the nature of material possessed, the offences would reflect the harm that is inherent in violent extremist material. Violent extremist material is harmful because it facilitates radicalisation. Violent extremist material may encourage and assist in planning violent acts. These acts can threaten public safety, and Australia’s core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion as it can vilify and portray or encourage violence against certain groups in society. Australians have the right to live free from discrimination, hatred and violence. (Footnotes omitted) Consideration 131 The object of the HRO Act is to provide a means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders. It follows that the paramount consideration of this Court in determining whether to make an ESO must be the safety of the community.52 132 By virtue of the nature of the offence he has committed, Mr Cromb is a high- risk offender. The definition of a terrorist offence is broad, broad enough to include the possession of terrorist materials. This no doubt reflects that terrorist conduct of any form poses one of the gravest threats to the safety of society. 133 In Attorney-General v Grosser,53 Stanley J considered the concept of an “appreciable risk”. His Honour said:54 I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. (Footnote omitted) 134 As I have said, the expert reports have been of limited assistance in determining the risk posed by Mr Cromb. It is therefore necessary for me to apply a holistic, commonsense approach based on the experience of the Courts. 52 Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5). 53 [2016] SASC 49. 54 Ibid at [29]. -- 29 of 30 -- [2024] SASC 116 McDonald J 28 135 The NSN/EAM continue to be active in South Australia. As recently as August 2024, NSN/EAM posted commentary on their Telegram channel about the stabbing of three young children and the arrest of a 17-year-old male in Southport, United Kingdom which contributed to riots. It was alleged that an NRVE group attended and participated in the riots. 136 In July 2024, SA NSN/EAM members were involved in three separate public displays of racist and/or homophobic behaviour that most right-minded members of the community would find abhorrent.55 137 Whilst there is no evidence to suggest that Mr Cromb has been in contact with any of his former NSN/EAM associates, there remains the option that he may reach out to them (or them to him) in circumstances in which he is bored, lonely or lacking in a sense of worth. Only just recently released from custody, Mr Cromb is at significant risk of experiencing those emotions. 138 The efforts made by Mr Cromb to date are promising, in particular, his engagement in the sessions conducted by Dr Swain. However, it remains the case that he has only been out of custody for a very short period of time. That has to be measured against the fact that Mr Cromb was attracted to this ideology as early as 2013 and held onto those beliefs up until at least the time that he was sentenced. 139 It is also a relevant factor that Mr Cromb did not just subscribe to these extreme values and beliefs, but he was instrumental in the running of NSN/EAM and in recruiting new members. In such circumstances, I share the reservations of Dr Furst about the unlikelihood “that Mr Cromb has gone from so completely firm in his beliefs and indoctrinated into the national socialism movement that he held a place of leadership to renouncing them”,56 and Dr Furst’s concerns “that even if he is completely genuine in his presentation and has the best of intentions, he is susceptible to feeling isolated and without purpose when released”.57 140 Risk is multifaceted. There is the risk that Mr Cromb will commit a further offence and if he does so, there is also the issue of the magnitude of the risk that the community will be exposed to in the event that this occurs. 141 I have arrived at the view that the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO, and that it is appropriate to make such an order. However, given Mr Cromb’s apparent progress, I propose to make the order for a shorter duration than that sought by the Attorney-General. The order will be for 12 months. 142 I will hear the parties as to the conditions of the ESO. 55 Dawson Affidavit. 56 Furst Report at [11.9]. 57 Ibid at [11.9]. -- 30 of 30 --