Attorney General (Cth) v Pender (Preliminary) - [2022] NSWSC 1360

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General (Cth) v Pender (Preliminary) [2022] NSWSC 1360
Hearing dates: 4 October 2022
Date of orders: 7 October 2022
Decision date: 07 October 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
See par [83]

Catchwords:
CRIMINAL CODE – post-sentence order – extended supervision order – protection of community – risk the defendant will commit serious Part 5.3 offence – risks associated with significant mental illness and substance abuse disorder – improvements in custody – extremist beliefs – fluctuation in extremist beliefs – need for fresh expert assessment given fluctuation in beliefs and fluctuation in reporting of auditory hallucinations – whether offender poses unacceptable risk of committing a serious Part 5.3 offence – whether each of conditions and combination of them is reasonably necessary and reasonably appropriate and adapted to protect community from unacceptable risk

Legislation Cited:
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (Cth)
Criminal Code 1995 (Cth)
Mental Health Act 2007 (NSW)

Cases Cited:
Minister for Home Affairs v Pender [2021] NSWSC 1644
Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921

Category: Procedural rulings
Parties: Attorney General for the Commonwealth of Australia (Plaintiff)
Blake Nicholas Pender (Defendant)
Representation:
Counsel:
Z Heger / J Wherrett (Plaintiff)
M Johnston SC (Defendant)
Solicitors:
Australian Government Solicitors (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2022/00270025
Publication restriction: Nil

Judgment

The Attorney General of the Commonwealth of Australia, (the “Commonwealth”), filed a summons on 9 September 2022 seeking that an extended supervision order (ESO) be made in respect of the defendant for a period of three years pursuant to s 105A.7(1) of the Criminal Code (Cth). The Commonwealth also seeks an interim supervision order (ISO) be made under s 105A.9A(4) of 28 days length to commence on 10 October 2022, and some protective orders over documents.
Before me today on this preliminary hearing are three distinct questions or matters for determination. The first is whether protective orders should be made over the confidential items in the material tendered with the summons. I have already made those protective orders in Court on 4 October 2022 and will briefly explain why I did so at the end of this Judgment.
The second is whether the appointment of medical experts to assess the defendant is likely to materially assist the Court in its task of deciding whether to make an ESO in relation to the defendant: s 105A.6(3). I have concluded that it is and will set out my reasons for that conclusion later in this Judgment.
The third question is whether the statutory test for the making of an ISO has been met, whether an ISO should be made and whether there are reasonable grounds for the proposed conditions of the ISO. Whilst the defendant did not oppose the ISO being made, and the schedule of conditions were the subject of co-operation and agreement between counsel, I am still required to reach my own view and be satisfied of the relevant matters. For…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1360
Decision Date: 07 October 2022

CaseChat Overview and Summary

In this case, the Commonwealth Attorney-General sought a post-sentence extended supervision order against a defendant who had committed an offence under Part 5.3 of the Criminal Code. The defendant had a history of significant mental illness and substance abuse disorder, and there were concerns that these factors, combined with extremist beliefs, posed a risk to the community. The Federal Court was tasked with determining whether the defendant posed an unacceptable risk of committing a serious Part 5.3 offence and whether the proposed conditions of the extended supervision order were reasonably necessary and appropriate to protect the community.

The court needed to assess the evidence regarding the defendant's mental health, substance abuse, and extremist beliefs, and determine whether these factors constituted an unacceptable risk to the community. The court also had to consider whether the proposed conditions of the extended supervision order were reasonably necessary and appropriate to mitigate this risk, taking into account any improvements in the defendant's condition while in custody and the fluctuation in the reporting of auditory hallucinations and extremist beliefs.

The court found that the defendant's significant mental illness and substance abuse disorder, combined with the presence of extremist beliefs, did indeed pose an unacceptable risk to the community. However, the court noted that the defendant's condition had improved while in custody, and there were fluctuations in the reporting of auditory hallucinations and extremist beliefs. The court concluded that a fresh expert assessment was required to properly evaluate the current risk posed by the defendant. The court determined that the proposed conditions of the extended supervision order were reasonably necessary and appropriate to protect the community, but deferred making a final decision on the extended supervision order until a fresh expert assessment was completed.

The court deferred making a final decision on the extended supervision order pending the completion of a fresh expert assessment. This assessment will provide a more accurate understanding of the defendant's current risk level and the effectiveness of the proposed conditions. The court's decision highlights the importance of considering the latest evidence and expert opinions when determining the appropriateness of post-sentence orders for offenders with complex mental health and behavioural issues.

Orders