Background
Yaqoob Benshabir was convicted of affray in February 2026 and sentenced by the Local Court to ten months’ imprisonment, backdated to September 2025 when he had been arrested on a separate (later withdrawn) Commonwealth charge of possessing violent extremist material. The State Parole Authority revoked his statutory parole on the basis that he was a terrorism-related offender who posed a serious risk to community safety. Concerned that a pending severity appeal in the District Court might result in his imminent release, the State of New South Wales filed a summons on 30 March 2026 seeking a twelve-month Extended Supervision Order (ESO) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act).
At a preliminary hearing on 1 April 2026, Weinstein J found that Benshabir was an “eligible offender” under s 7 of the THRO Act, that he was a “convicted NSW terrorism activity offender,” and that the supporting material would, if proved, justify an ESO. His Honour ordered expert examinations but declined to make an interim supervision order, not being satisfied that the defendant’s current custody would expire before final determination as a “realistic inevitability.” The following day, 2 April 2026, the District Court (David DCJ) upheld the severity appeal, set aside the term of imprisonment, and substituted a twelve-month conditional release order. That afternoon, an urgent application for an interim supervision order before Emmett J was dismissed on the basis that the District Court’s orders had taken effect when pronounced in open court and Benshabir was therefore no longer an “eligible offender.” Benshabir then moved to dismiss the entire summons and set aside Weinstein J’s orders.
The central legal questions before Yehia J were: (1) whether the District Court’s “setting aside” of the imprisonment sentence rendered it void from the outset; (2) whether s 23(2) of the THRO Act independently precluded the application because the original sentence was less than twelve months; and (3) whether, under s 20 of the THRO Act, the court retained jurisdiction to make a final ESO against a person who had ceased to be an “eligible offender” after the application was filed.
The Court’s Holding
Yehia J dismissed the summons and set aside the orders made by Weinstein J on 1 April 2026. Following the Court of Appeal’s decision in Roads and Maritime Services v Porret (2014) 86 NSWLR 467, her Honour confirmed that the District Court’s exercise of its power under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to set aside a sentence operates prospectively, not ab initio. The original term of imprisonment was therefore valid and effective while it ran, and Benshabir was lawfully in custody serving that sentence when the ESO application was filed on 30 March 2026. However, from 2 April 2026 when David DCJ’s orders took effect, he was no longer “serving … a sentence of imprisonment for a NSW indictable offence” and thus ceased to satisfy the definition of “eligible offender” in s 7 of the THRO Act.
On the critical jurisdictional question, the court rejected the State’s submission that the parenthetical phrase in s 20 of the THRO Act — “or was in custody or under supervision at the time the original application for the order was filed” — supplies an independent jurisdictional basis allowing a final ESO to be made against a person who is no longer an eligible offender at the time of the final hearing. Applying the presumption against superfluity and reading the THRO Act as a whole, Yehia J construed that parenthetical as a temporal limitation on the eligible offender requirement rather than as a standalone alternative, consistent with the Act’s scheme and the strict construction that must be applied to legislation curtailing personal liberty. Because Benshabir would not qualify as an eligible offender at the time any final order would be made, the court lacked jurisdiction to grant the ESO, and the summons was dismissed with costs against the State.
The court also noted that — consistently with Emmett J’s earlier interlocutory decision — the District Court’s orders became operative when pronounced in open court, regardless of the delayed entry onto JusticeLink, and the State’s attempt to preserve eligibility by delaying formal entry of those orders was rejected.
Key Takeaways
- Setting aside a sentence on a severity appeal under the Crimes (Appeal and Review) Act 2001 (NSW) operates prospectively only — the original sentence is not rendered void ab initio, but custody and “eligible offender” status end when the appellate orders take effect.
- A defendant must qualify as an “eligible offender” under s 7 of the THRO Act not only at the time of filing but also at the time any final Extended Supervision Order is made; the parenthetical in s 20 is a temporal clarification, not an alternative jurisdictional gateway.
- A successful sentence appeal replacing imprisonment with a non-custodial order (such as a conditional release order) can strip the Supreme Court of jurisdiction to make a final ESO under the THRO Act, even where a preliminary hearing has already been conducted and expert appointments ordered.
- District Court orders made in open court take immediate effect; a delay in entering them on the court’s electronic system does not extend an offender’s status as a person “serving a sentence of imprisonment.”
Why It Matters
This decision exposes a structural gap in the THRO Act’s coverage: where an offender’s sentence is successfully reduced to a non-custodial disposition on appeal before ESO proceedings are finalised, the court may be left without jurisdiction to impose ongoing community supervision — even when preliminary findings of risk have already been made. The ruling will require prosecutors to move ESO applications to final hearing with considerably greater urgency, and may prompt legislative attention to the Act’s eligibility preconditions in the context of pending appeals.
More broadly, the case illustrates the courts’ strict approach to statutes that abridge personal liberty. The presumption against superfluity — giving operative meaning to every word of s 20, including the requirement that an “eligible offender” remain eligible at the point of final determination — prevailed over a purposive argument that would have permitted orders against persons who had ceased to meet the statutory preconditions. Defence practitioners and Crown lawyers alike will need to account for this jurisdictional fragility when timing applications under the THRO Act.