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Minister for Home Affairs v Pender

Minister for Home Affairs v Pender

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Case Copied 15 December 2021 80 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Minister for Home Affairs v Pender [2021] NSWSC 1644
Hearing dates: 13, 14, 15 and 19 October 2021
Date of orders: 9 November 2021
Decision date: 15 December 2021
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) Pursuant to s 105A.7(1) of the Criminal Code the defendant be subject to a continuing detention order.
(2) The continuing detention order be in force for a period of one year from 13 September 2021.

Catchwords:
CRIMINAL CODE – continuing detention order – unavailability of control order – control order by Federal Court – relevant principles operating s 105A.7(b) – comparable State legislation – unacceptable risk – less restrictive measures – criminal history – views of sentencing court – expert evidence – concurrent evidence – practical management in the community – treatment and rehabilitation programs – mental health – fixation with religion – suite of measures to mitigate risk – accommodation - community treatment order – control order - NDIS – Firearms order – control order limitations – serious Part 5.3 offence – risks associated with deterioration of mental state and substance abuse – susceptibility to develop violent extremist beliefs – future prospects – duration – continuing detention order

Legislation Cited:
Australian Federal Police Act 1979 (Cth)
Crimes (High Risk Offenders) Act 2006 (NSW)
Criminal Code 1995 (Cth)
Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (Cth)
Mental Health Act 2007 (NSW)
Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)
Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:
Athavle v New South Wales [2021] FCA 1075
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1
Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321
Booth v Dacre [2020] FCA 751
Booth v Granata [2020] FCA 668
Booth v Kadir Kaya [2020] FCA 764
Booth v Murat Kaya (No 2) [2020] FCA 1119
Booth v Naizmand [2020] FCA 244
Booth v Thorne No 2 [2020] FCA 1196
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lynn v New South Wales (2016) 91 NSWLR 636
Minister for Home AffairsvBenbrika [2020] VSC 888
Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
R v Pender [2019] NSWSC 1814
Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820
State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
State of New South Wales v Ceissman(No2) [2018] NSW SC 1237
State of New South Wales v Currie(Final) [2021] NSWSC 676
State of New South Wales v Donovan (2015) 90 NSWLR 389; (2015) NSWCA 380
State of New South Wales v Ibrahim (Final) [2021] NSWSC 793
State of New South Wales v Rigby (Final) [2021] NSWSC 472
State…

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: [2021] NSWSC 1644
Decision Date: 15 December 2021

CaseChat Overview and Summary

In the case of Minister for Home Affairs v Pender, the Minister sought to continue the detention of the respondent, Mr. Pender, under a continuing detention order due to concerns about his potential to engage in violent extremist activities. The Federal Court was tasked with determining whether the conditions outlined in the Criminal Code were met for issuing such an order. The central issue before the Court was whether the criteria for a continuing detention order under the Criminal Code were satisfied, particularly in light of the absence of an available control order, and whether less restrictive measures could effectively mitigate the risk posed by Mr. Pender.

The Court considered whether the principles guiding the operation of section 105A.7(b) of the Criminal Code could be applied in the context of comparable State legislation. It evaluated whether the risk posed by Mr. Pender was unacceptable, whether less restrictive measures could be implemented, and assessed his criminal history and the views of the sentencing court. The Court also examined expert evidence and concurrent evidence related to Mr. Pender’s mental health, his fixation with religion, and the effectiveness of various treatment and rehabilitation programs. The Court concluded that despite the availability of a suite of measures to mitigate the risk, including accommodation, community treatment orders, and NDIS support, the risks associated with Mr. Pender’s potential deterioration of mental state and substance abuse, coupled with his susceptibility to develop violent extremist beliefs, warranted a continuing detention order.

Ultimately, the Court found that the criteria for issuing a continuing detention order were met, and it granted the order. The Court noted the importance of balancing the protection of the community against the rights of the individual, and considered the duration of the order necessary to address the ongoing risk. In reaching its decision, the Court emphasised the necessity of preventing Mr. Pender from engaging in serious Part 5.3 offences, given his future prospects and the limitations of control orders in this context. The Court also acknowledged the comprehensive measures already in place but determined that these were insufficient to fully mitigate the risk posed by Mr. Pender.

Orders