Minister for Home Affairs v Pender

[2021] NSWSC 1644

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 of New South Wales v Naaman (No2) [2018] NSWCA 328

TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439

Tannous v New South Wales (2020) 103 NSWLR 183

TheState of New South Wales v Sharpe [2017] NSWSC 469

Category:

Principal judgment

Parties:

The Minister for Home Affairs (Plaintiff)
Blake Nicholas Pender (Defendant)

Representation:

Counsel:
P Herzfeld SC
Z Heger, C Ernst (Plaintiff)
M Johnston SC
G Lewer and D Bhutani (Defendant)

Solicitors:
Australian Government Solicitor (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2021/192377

Judgment

1. By a summons filed on 5 July 2021, the Minister for Home Affairs (“the plaintiff”) sought, inter alia, an order pursuant to s 105A.7(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”) that Mr Blake Nicholas Pender (“Mr Pender”) be subject to a continuing detention order (“CDO”) for a period of three years.

2. Mr Pender was convicted on 18 December 2019, after pleas of guilty, to two charges relating to his offending on 14 July 2017. The charges were as follows:

1. Charge 1 (knowingly possessing a thing connected with terrorism)

On 14 June 2017, Mr Pender did possess a thing, being a knife, connected with preparation for a terrorist act and knew of the connection contrary to s 101.4(1) of the Criminal Code (“the Terrorism Offence”);

2. Charge 2 (threatening a judicial officer)

On 14 June 2017, Mr Pender did threaten to cause injury to Magistrate Keogh on account of a thing lawfully done, being Magistrate Keogh’s refusal of bail as a judicial officer, contrary to s 326(1)(b) of the Crimes Act 1900 (NSW) (“the Threat Offence”).

3. For the Terrorism Offence, Mr Pender was sentenced to a term of imprisonment of 4 years, with a non-parole period of 3 years commencing on 14 September 2017 and expiring on 13 September 2020, and the one year balance expiring on 13 September 2021.

4. For the Threat Offence, Mr Pender was sentenced to a fixed term of imprisonment of 6 months commencing on 14 June 2017 and expiring on 13 December 2017.

5. On 23 July 2021, Cavanagh J made orders pursuant to s 105A.6(3) of the Criminal Code appointing experts under the Criminal Code, namely Dr Andrew Ellis and Dr Kerri Eagle, Forensic Psychiatrists, and Dr Chelsey Dawson, a Forensic Psychologist (as well as various protective orders sought in the summons): Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921.

6. On 26 August 2021, Bellew J made, upon prayers for relief 4 and 5 of the summons, an interim detention order expiring on 11 October 2021. That order was extended by his Honour on 29 September 2021 to 15 October 2021 and by the Court as presently constituted on 15 October 2021 until 30 October 2021, and again by further order until 9 November 2021.

7. On 9 November 2021, the Court made the following orders:

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.

8. The Court indicated reasons for decision would be given at the earliest opportunity. These are the reasons for the orders made by the Court.

9. The jurisdiction to make a CDO falls within, inter alia, the jurisdiction of this Court (see s 105A.7(1)).

10. However, the jurisdiction to make a control order or interim control orders falls within the jurisdiction of an “issuing court”. By s 104.4 of the Criminal Code, “the issuing court” may make an interim control order on terms which specify the imposition of obligations, prohibitions and restrictions (see s 104.5). The Federal Court of Australia falls within the definition of “an issuing court” in s 100.1(1) (State and Territory Courts do not fall within that definition).

11. In the result, proceedings may be brought with respect to the same defendant in two courts for a CDO and an interim control order. So much has occurred in this case.

12. Parallel proceedings were brought in the Federal Court of Australia by Commander Sandra Booth of the Australian Federal Police (“AFP”) seeking interim control orders pursuant to Div 104 of the Criminal Code. An interim order was made, with the consent of Mr Pender, by Perram J on 7 October 2021 pursuant to s 104.4 of the Criminal Code (No NSD 993/2021) (“the Control Order”). The obligations, prohibitions and restrictions imposed upon Mr Pender were set out in Annexure A of the Control Order which specifies 20 control orders. The interim control order does not operate until Mr Pender is released from custody.

13. There are a number of consequences arising from that legislation framework. First, this Court will proceed to deal with the application for a CDO in circumstances where an interim control order has been made by another Court. This will have significance, as I will later discuss, for the Court’s deliberations under s 105A.7(1)(b) and (c) of the Criminal Code, particularly as a result of the parties having argued the scope and operation of the interim control order.

14. Secondly, this Court will not have the opportunity of considering, for itself, both the application for a continuing detention order and a control order under the Criminal Code brought with respect to Mr Pender as might often occur under the State legislation dealing with high risk offender matters such as the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”).

15. Thirdly, the respective Court’s may be required to pass upon similar factual issues arising under Div 104 and 105A of the Criminal Code. For example, the order issued by Perram J contains Annexure B which sets out the “grounds” for which the interim control order should be made, “having regard to a Statement of Facts relating to why an order should be made” and a Statement of Facts as to why an order should not be made. Grounds 21-29 appear under the heading “Mental Health and substance abuse”. Paragraph 29 of the grounds attracted controversy in these proceedings. It was in the following terms:

Having regard to the ideology or ideologies to which Mr Pender has subscribed in the past and may subscribe in the future, and the nature of the threats made in the past, there is a significant risk that if Mr Pender makes threats of violence or commits acts of violence, they will be accompanied by intentions that mean they amount to a terrorist act.

statutory framework and relevant principles

DIVISION 105A of the CRIMINAL CODE

16. Division 105A (“the Division”) of the Criminal Code provides for the continuing detention of terrorist offenders after their sentences of imprisonment have expired.

17. The Division was inserted into the Criminal Code by Schedule 1 of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) and came into operation on 7 June 2017.

18. There has only been one case decided under s 105A of the Criminal Code: Minister for Home Affairs v Benbrika [2020] VSC 888 (per Tinney J) (“Benbrika”).

19. The object of the Division is specified in s 105A.1 as follows:

The object of this Division is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

20. The relevant extrinsic materials further explain that the Division was inserted into the Criminal Code in order to “provide for nationally consistent preventative detention of high risk offenders”.

21. The CHRO Act and the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) are cognate, but not identical, with respect to the Division of the Criminal Code. As the parties accepted (and as is reflected in the judgment of Tinney J in Benbrika) some judgments of this Court with respect to proceedings under the CHRO Act and THRO Act are authorities bearing upon the operation of parts of the Division.

22. A continuing detention order may be made in relation to a person in respect of whom each of the following applies:

1. The person has been convicted of an offence of the kind listed in s 105A.3(1)(a), which includes a “serious Part 5.3 offence”. That is defined in s 105A.2 to mean an offence against Pt 5.3 of the Criminal Code, the maximum penalty for which is seven or more years of imprisonment.

2. The person is, relevantly, detained in custody and serving a sentence of imprisonment for the offence listed in s 105A.3(1)(a), or is the subject of a continuing detention order or interim detention order: s 105A.3(b).

3. If the person is serving a sentence of imprisonment – the person will be at least 18 years old when their sentence ends: s 105A.3(c).

23. A person who satisfies the foregoing conditions is defined as a “terrorist offender” for the purposes of the Division: ss 105A.2 and 105A.3. Mr Pender is a ”terrorist offender” because:

1. Mr Pender was convicted of an offence under s 101.4(1) of the Criminal Code, which is in Pt 5.3 and carries a maximum penalty of 15 years’ imprisonment; and

2. Mr Pender is currently the subject of an interim detention order.

To the extent it was necessary to satisfy s 105A.3(1)(c), Mr Pender was born on 1 May 1991, making him presently 30 years old.

24. There was, properly, no controversy that these conditions were met in the present matter.

25. The effect of a continuing detention order is to commit a terrorist offender to detention in a prison for the period the order is in force: s 105A.3(2). That period must be “a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk”: s 105A.7(5). That said, successive detention orders may be made in respect of the same person: s 105A.7(6). Conversely, continuing detention orders must be periodically reviewed by the Court at 12-month intervals (s 105A.10) or on application by the terrorist offender (s 105A.11). A person the subject of a continuing detention order is, subject to certain exceptions, to be treated in a way appropriate to his or her status as a person who is not serving a sentence of imprisonment and accommodated separately from persons who are serving sentences of imprisonment: s 105A.4.

26. As mentioned, an application for a continuing detention order is made to the Supreme Court of a State or Territory: s 105A.5(1). The application must be made by the Minister (or a legal representative of the Minister) administering the Australian Federal Police Act 1979 (Cth): (see s 105A.5, read with s 100.1(1)) (definition of “AFP Minister”). Pursuant to the Administrative Arrangements Order of 5 December 2019, that is the Minister for Home Affairs. Section 105A.5(3) specifies the content of an application.

Section 105A.7(1)(b)

27. Section 105A.7, which sets out the requirements for the making of a CDO, provides:

(1)   A Supreme Court of a State or Territory may make a written order under this subsection if:

(a)   an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and

(b) after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

(c)   the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1: An example of a less restrictive measure is a control order.

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1)(b) of this section (see subsection 105A.8(3) and section 105A.13).

28. There are a number of features of s 105A.7 which require particular attention.

29. The Court is to apply the rules of evidence and procedure that apply to civil matters: s 105A.13(1) (subject to the exceptions identified in s 105.13(2)).

30. However, s 105A.7(1)(b) provides that the standard of proof is to “a high degree of probability”.

31. The test in s 105A.7(b) is whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious Pt 5.3 offence if the offender is released into the community. The requirement of being satisfied to a “high degree of probability” imports a standard of proof that is higher than the civil standard but lower than the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (“Naaman No 2”). Although the standard is a high one, it is important to recognise that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit an offence of the relevant kind, but, rather, that he or she poses an “unacceptable risk” of doing so: see example, The State of New South Wales v Sharpe [2017] NSWSC 469 at [51]; State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21] (both decisions concern “unacceptable risk” in the context of the CHRO Act).

32. While that standard is a modification of the civil standard of proof, it does not amount to the criminal standard of proof (beyond reasonable doubt): Benbrika at [392] per Tinney J. Further, as explained, this elevated standard applies only in relation to the ultimate question posed by s 105A.7(1)(b).

33. Further, the elevated standard only applies to the questions posed by s 105A.7(1)(b). The resolution of questions raised under s 105A.7(1)(c) are to be resolved on the ordinary civil standard of proof on the balance of probabilities: see s 140 of the Evidence Act 1995 (NSW) as applied by s 79 of the Judiciary Act 1903 (Cth).

34. As noted above, that is defined in s 105A.2 to mean an offence against Pt 5.3 of the Criminal Code, the maximum penalty for which is seven or more years of imprisonment. These offences include: engaging in a terrorist act (s 101.1); possessing a thing connected with the preparation for a terrorist act, knowing of or being reckless as to the existence of the connection (s 101.4); and doing any act in preparation for, or planning, a terrorist act (s 101.6).

35. Counsel for the plaintiff provided a summary of the meaning of a “terrorist” act is defined in s 100.1 which, in my view, is a useful digest and is in the following terms:

40.   A ‘terrorist act’ is defined in s 100.1. In summary, it is:

(a)   an action or threat of action that causes serious harm that is physical harm to a person, or causes serious damage to property, or causes a person’s death, or endangers another person’s life, or creates a serious risk to the health or safety of the public or a section of the public, or seriously interferes with, seriously disrupts, or destroys, an electronic system (‘terrorist act’ para (a), s 100.1(2));

(b)   where the action is done or the threat is made with the intention of:

i.   advancing a political, religious or ideological cause (‘terrorist act’ para (b)); and

ii.   coercing, or influencing by intimidation, the government or intimidating the public or a section of the public (’terrorist act’ para (c)); and

(c)   the action does not fall within s 100.1(3): ie it is advocacy, protest, dissent or industrial action not intended to cause serious harm that is physical harm to a person, or to cause a person’s death, or to endanger the life of another person, or to create a serious risk to the health or safety of the public or a section of the public (‘terrorist act’ para (a), s 100.1(3)).

36. The plaintiff correctly submitted that there is an element of “intentionality” involved in those offences.

Unacceptable risk

37. It is appropriate to turn at the outset of this topic to a submission by Mr Pender relating to the balancing of considerations between community protection and individual liberty for the purposes of the Division of the Criminal Code. (The topic of community protection for the purposes of s 105.8(1)(a) will be addressed further below.) Mr Pender submitted that the interpretation of other legislative schemes for the preventative detention would have a bearing upon the proper approach of the Court to the construction of s 105.7A. The submission was developed in the following manner:

21. In Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46, the High Court considered the Dangerous Prisoners (Sexual Offenders) Act 2003, At [14], Gleeson CJ said (footnotes omitted):

In Australia, the Constitution does not contain any general statement of rights and freedoms. Subject to the Constitution, as a general rule it is for the federal Parliament, and the legislatures of the States and Territories, to consider the protection of the safety of citizens in the light of the rights and freedoms accepted as fundamental in our society. Principles of the common law, protective of such rights and freedoms, may come into play in the application and interpretation of valid legislation.

22. Similarly, in Nigro v Secretary to the Department of Justice (2013) 41 VR 359; [2013] VSCA 213, which examined Victoria’s equivalent legislation, Redlich, Osborn, and Priest JJA held (at [67]):

In turn the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required under s 9. The right to personal liberty is the most elementary and important of all common law rights, identified by Blackstone ‘to be an absolute right vested in the individual by the immutable laws of nature’ which had never been abridged by the laws of England ‘without sufficient cause’. The common law has continued to attach ‘momentous significance’ and ‘supreme importance’ to personal freedom.

The right to liberty and autonomy explains why the concept of ‘unacceptable risk’ should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose. Such an approach accords with the canon of construction that a statute which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right. The role of the principle of legality in the task of construction was referred to by French CJ in Momcilovic v R in these terms:

It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statute be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law.

23. The New South Wales Court of Appeal has also previously recognised the ongoing existence of an individual’s personal liberty alongside preventative detention schemes. In State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280, the Court, constituted by Beazley P, Macfarlane, and Leeming JJA, considered the CHRO Act as it then was and affirmed at [58]:

It is sufficient to proceed on the basis that an offender’s right to personal liberty after completing the term of imprisonment for which he or she has been sentenced was accurately described as “the most elementary and important of all common law rights”, which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen (1986) 161 CLR 278 at 292, a passage cited by the primary judge.

38. It may be accepted that, as an aspect of the principle of legality, “[s]tatutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law”: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 at [41]-[42] (French CJ).

39. However, the principle of legality in the construction of the Division must be viewed through the prism of a legislative scheme which envisages, in specified circumstances, abrogation or curtailment of the right to liberty, even after serving a sentence of imprisonment: Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314] (Gageler and Keane JJ). See also: Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820 at [192]-[193] (Bathurst CJ, Ward and Payne JJA); Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); and Athavle v New South Wales [2021] FCA 1075 at [79]‑[82] (Griffiths J).

40. This approach is consistent with, in my view, the recognition afforded to Mr Pender’s right to liberty as described in the extract from State of New South Wales v Donovan (2015) 90 NSWLR 389; (2015) NSWCA 380 in the submission of Mr Pender extracted above.

41. Turning specifically to s 105A.7(b), and the question of unacceptable risk, attention should be directed to the judgment of the NSW Court of Appeal in Lynn v New South Wales (2016) 91 NSWLR 636 (“Lynn”).

42. In the context of the CHRO Act, it has been held that a person’s common law right to liberty forms no part of the Court’s assessment of whether the person poses an “unacceptable risk”, although it may be relevant to the Court’s residual discretion to decline to make an order: Lynn at [43]-[44] (Beazley P) and [148]‑[149] (Gleeson JA); Tannous v New South Wales (2020) 103 NSWLR 183 at [46]-[47] (Basten JA).

43. I consider that questions of common law freedoms are relevant to the Court’s residual discretion as to whether to make a CDO but not to the assessment of unacceptable risk per se.

44. The exercise of such a discretion, in circumstances where the Court has already found, to a high degree of probability, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community (and there were no less restrictive ways of preventing the risk), having regard to, would, in the light of the object of the Division in s 105A.1, be exceptional.

45. Whilst Naaman No 2 was concerned with the elements of s 20(d) of the THRO Act, the following aspects of the judgment of the NSW Court of Appeal (at [29]) as to the question of unacceptable risk are applicable in the present context:

183. The elements of s 20(d) of the THRO Act were considered by the Court of Appeal in Naaman No 2. There, the Court of Appeal summarised the key aspects of the provision as follows (at [29]):

(1)   First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction.

(2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur.

(3) Thirdly, par (d) requires the Court to be satisfied to a “high degree of probability” of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court’s state of satisfaction to be “to a high degree of probability”.

(4)   ….

(5) Fifthly, the Court is then to determine whether that risk is or is not “unacceptable”. It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised defendant committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not “unacceptable” is not otherwise defined in the Act.

46. The phrase “unacceptable risk” is not defined under the Criminal Code. As was observed in State of New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [185]:

Whether a particular risk is “unacceptable” is an evaluative determination which falls to be made in the applicable statutory context in which the question arises: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [51]-[61], [116], [132]…

47. Here the Court must have regard to the object of the Division of the Criminal Code, namely, to “ensure the safety and protection of the community”.

48. Both parties placed reliance upon State of New South Wales v Ceissman (No 2) [2018] NSW SC 1237 (“Ceissman”) although Mr Pender placed reliance on [26]-[33] and the plaintiff identified a passage of the judgment of Tierney J in Benbrika which referred to [33]-[34]. Both of these passages are relevant. The passage from Ceissman was in the following terms:

26   The defendant has not been the subject of a control order. Nor has the defendant, on the evidence before the Court, ever been a member of a terrorist organisation.

27   Therefore, in order for the Court to be satisfied that the defendant is a person who is capable of being the subject of an ESO, the Court would need to be satisfied, on the balance of probabilities, that the defendant has made statements or engaged in other conduct that involved advocating support for engaging in terrorist acts or is associated or otherwise affiliated with other persons or with organisations advocating such support.

28 As a consequence of that requirement, the issues of fact that arise in these proceedings, being, amongst other things, whether the Court accepts the evidence of Witness A given in these proceedings, are issues that affect not only whether the defendant poses an unacceptable risk, but also whether the defendant is a person of the class against whom an order under the THRO Act is permitted.

29 The terms of s 20D of the THRO Act requires that the Court be satisfied “to a high degree of probability” that the defendant poses an unacceptable risk of committing a serious terrorism offence, if the defendant were not under an order of the Court requiring his supervision. On the other hand, the provisions of s 21 of the THRO Act specify that the Court does not need to determine that the risk to which s 20 of the THRO Act refers is “more likely than not”.

30   For present purposes, I will summarise the discussion of “unacceptable risk” in the First Judgment. The summary is not intended to supplant the analysis that otherwise derives from the reasons in the First Judgment.

31   The determination of an “unacceptable risk” involves consideration of a matrix of factors that include the probability that the risk will result and, secondly, the seriousness of the harm that will ensue if the risk were realised: see First Judgment, at [26] and following.

32   The unacceptable risk is the unacceptability of the risk of committing a serious terrorism offence and the harm, hazard or loss to which the “risk” refers is the harm, hazard or loss occasioned by the commission of a serious terrorism offence.

33   A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm. The unacceptability of risk balances the likelihood of “the risk” and the seriousness of the outcome of its realisation. Thus, as the seriousness of the harm which may eventuate increases, the required degree of likelihood of the risk manifesting required to overcome the threshold of “unacceptability” decreases.

34 The Court is required to evaluate that equation and to be satisfied to a high degree of probability that the defendant poses an unacceptable risk: State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. The onerousness of the order on the defendant, if the order be onerous, or the interference with the liberty of the individual, is not a factor that is to be considered in determining whether there is an unacceptable risk.

49. Reference may also be made, in that respect, to State of New South Wales v Currie (Final) [2021] NSWSC 676 at [19]:

19. I also refer to the judgment of Harrison J in Pacey (at [53]):

[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.

50. In Benbrika, at [400]-[402] Tinney J adopted observations made by the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 regarding the concept of “unacceptable risk” under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). In Nigro, the Victorian Court of Appeal observed that ”the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence”: at [117]. The Court also observed: “Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable”: at [6].

51. The Court raised with parties one aspect of the construction of s 105A.7(1)(b). The issue arose from the closing words of s 105A.7(1), namely, “if the offender is released into the community” which may be contrasted to the words “if not kept in detention under the order” in s 34(1)(d) of the THRO Act (or the counterpart words of s 20(d) of the THRO Act with respect to an application for an extended supervision order, namely, “if not kept under supervision under that order”).

52. The issue raised was whether measures which may be described as “less restrictive” than a CDO, and which will be in place when Mr Pender is released, should factor into the Court’s assessment of “unacceptable risk” or, alternatively, whether they should be reserved for consideration under s 105A.7(1(c). Section 105A.7(1)(c) requires, as a precondition to the making of a CDO, that the Court be satisfied there is no “other less restrictive measure” that would be effective in preventing the unacceptable risk.

53. In my view, the proper construction of s 105A.7(1)(b) requires the Court to consider the circumstances that will actually prevail if the offender is released into the community in considering whether Mr Pender poses an unacceptable risk of committing a serious Pt 5.3 offence.

54. The reasons for that conclusion appear below and derive from submissions of counsel for the plaintiff and Mr Pender in support of a conclusion to that effect.

55. First, s 105A.7(1)(b) requires the Court to consider the position that would prevail if the offender were “released into the community”. That situation is necessarily a hypothetical one. Nonetheless, it is grounded in an assessment of the actual risk posed by the particular offender. The Court should not, therefore, undertake that assessment in a vacuum. Rather, the risk must be assessed having regard to the available evidence about the circumstances into which the offender will, in fact, be released. In many cases that will include some kinds of measures which are directed at reducing the risk of reoffending (and in some cases, the risk of committing a serious Pt 5.3 offence). To excise those measures from the evaluation of “unacceptable risk” would require the Court to proceed on the basis of a picture that was incomplete.

56. Secondly, the Court is considering what risk (i.e. what probability of harm and what magnitude of harm) might occur if the offender is released into the community. This calls for consideration of what might occur when the offender is released into the community. The question is what circumstances is the offender going to face when in the community (will he be supervised? what is his accommodation going to be? what support does he have? how is he likely to engage in with those supports? how effective are these supports likely to be? etc). The question the Court asks is what is his level of risk in the actual circumstances likely to be faced by Mr Pender if released into the community.

57. Thirdly, the Division offers no workable boundary between those “measures” that would form part of the risk assessment in s 105A.7(1)(b), and those measures which, although it is known they would be in place upon release, could be considered only under the s 105A.7(1)(c) stage of the analysis. A “measure” is a broad descriptor. It is capable of encompassing a range of arrangements, whether imposed by a court (such as a continuing detention order) or a tribunal (such as a community treatment order (“CTO”)), or delivered by the government as part of the publicly funded support services available to persons recently released from custody. There is no principled basis for determining which of those measures are to factor into the analysis in s 105A.7(1)(b), and which are to be deferred for consideration under the auspices of s 105A.7(1)(c).

58. Fourthly, that construction of s 105A.7(1)(b) does not leave s 105A.7(1)(c) without any work to do. Specifically, “less restrictive measures” for the purposes of s 105A.7(1)(c) are measures which the evidence does not establish will be in place if the offender were to be released, but rather, which the Court would be satisfied realistically could be in place. An obvious example is given by Note 1 to s 105A.7(1): a hypothetical control order under Div 104 of the Criminal Code. In the present proceedings, a control order has already been made. However, in other circumstances, an application for a control order may not yet have been determined. In such circumstances, the Court would not presuppose the existence of a control order in evaluating whether the offender posed an “unacceptable risk”. That would be speculative. Rather, consideration of the (hypothetical) control order would occur under s 105A.7(1)(c), together with consideration of such other measures as might realistically be imposed. If the Court considered that a control order or another measure less restrictive than a continuing detention order would be effective in preventing the unacceptable risk, the Court could not make a continuing detention order because the precondition in s 105A.7(1)(c) would not be satisfied.

59. Thus, an inquiry under s 105A.7(1)(c) in the present case becomes a largely arid inquiry because of all of the measures reasonably available to minimise his risk will be in place.

60. Fifthly, the approach outlined above broadly coheres with the approach that the courts have taken to the construction of cognate, though not identical, provisions of the CHRO Act. In State of New South Wales v Rigby (Final) [2021] NSWSC 472 (“Rigby”), Rothman J explained that, in assessing “unacceptable risk” for the purposes of s 5B of the CHRO Act, the Court was entitled to take into account the circumstances that would prevail if the relevant order (there, an extended supervision order) were not made: [41]. At [42], his Honour gave the hypothetical example of a law that required an offender to be handcuffed to a police officer at all times. Such a measure would plainly reduce the risk posed by that offender, and would therefore inform the Court’s assessment of whether the risk would be unacceptable.

61. The position is different, of course, in respect of measures that might otherwise be imposed in the proceedings themselves. Under the CHRO Act, the Court has the power to decide, in a single set of proceedings, whether to make a continuing detention order under s 5C or an extended supervision order under s 5B. Against that background, it would make little sense for a Court, in evaluating the unacceptable risk, to presuppose that an extended supervision order had been made. As Rothman J explained in Rigby at [40], it is in that context that Basten JA’s observation in Lynn at [126] – to the effect that “the assessment [of unacceptable risk] must be based on an absence of protective measures” – should be read. However, unlike under the CHRO Act, the Court determining an application under Division 105A does not have the power to make some alternative, less restrictive order than a continuing detention order. Accordingly, the issue raised in Lynn does not arise (see also Currie at [21]-[22]).

50. As I have mentioned, a key difference between the THRO Act and the Division of the Criminal Code is that this Court does not have the power to make a supervision order such as an extended supervision order, or a Control Order, under s104 Criminal Code. The absence of the power to make such a supervision order, gives rise to the need to consider what is in place if the Mr Pender is released into the community and what is capable of being put in place.

51. In the light of this construction, it was common ground that the following factors or measures should be taken into account in assessing whether there was an unacceptable risk for the purposes of s 105A.7(1)(b):

1. The Control order including 20 controls (set out later in the judgment).

2. A Firearms Prohibition Order, including a search power (see Booth T68).

3. Psychiatric case management and medication under a CTO including the breach power under the Mental Health Act2007 (NSW) (an application was made for the variation of the CTO on 1 October 2021 – see Ex 2 in the proceedings and as discussed later in this judgment).

4. Stable accommodation.

5. NDIS support including the support of United Care which incorporates a 24/7 on-site support with staff who are trained and experienced in working with individuals who experience psychosocial disability and have complex needs, and 5 hours a day of one-on-one support.

6. Mr Pender’s participation with Proactive Integrated Support Model (“PRISM”) since February 2021.

7. Mr Pender’s involvement with the New South Wales Engagement and Support Program (“ESP”) and the support provided.

8. (collectively “the seven measures” or “the suite of measures”)

64. As to the interim status of the control orders, I accept the submission of the plaintiff that it is sufficient for the purposes of the present application to confine attention to the interim control orders without speculating as to whether a final order may or may not be made. This is particularly so as the interim orders were made by consent and there is no submission by Mr Pender that, as circumstances presently exist, there would be an application for a different approach by him on 11 April 2022 when the application for Control Orders is again listed before the Federal Court.

65. In assessing whether the offender poses an unacceptable risk, the Court must have regard to the matters enumerated in s 105A.8(1). Section 105A.8(2) clarifies that sub-s (1) does not prevent the Court from having regard to any other matter it considers relevant.

66. This brings to attention the provisions of s 105A.8(1)(a).

Section 105A.8(1)(a)

67. An issue arose as to the relevance of rehabilitation to s 105A.8(1)(a) and more broadly to the question of unacceptable risk.

68. Mr M Johnston SC who appeared for Mr Pender contended that s 105A.8(1)(a) does not, as a matter of statutory construction, preclude the consideration of Mr Pender’s rehabilitation. Further, it was submitted the Court needed to consider that there is a connection between his offending and mental illness and substance abuse disorder, and that in “recognising these features are the building blocks of any future risk”, the Court needs to assess the “safety and protection of the community” test achieved by addressing those factors in a custodial setting or in the community. It was submitted that the risk factors posed by Mr Pender are best addressed and managed in the community.

69. The plaintiff accepted that the question of rehabilitation is relevant to the assessment of the degree of risk, but that is a different question to the court having regard, for the purposes of s 105A.7(1)(b), whether further rehabilitation will be better achieved by detention or release.

70. By virtue of s 105A.8(1)(e) of the Criminal Code it is plain that “treatment or rehabilitation programs” is relevant to the question of unacceptable risk. However, I accept the submission of the plaintiff that s 105A.8(1)(a) is not concerned with whether Mr Pender’s rehabilitation in the future would benefit more from detention or treatment in the community. In particular, the question of whether Mr Pender’s ongoing rehabilitation would be better served by his removal from custody is not a consideration bearing upon whether he presently poses an unacceptable risk.

71. In reaching that conclusion, I note, with respect, my concurrence with a passage of Tinney J’s judgment in Benbrika at [408]-[411] as follows:

408 The first matter outlined in s 105A.8(1) to which the Court is required to have regard is the safety and protection of the community, which is unsurprising bearing in mind the sole object of Division 105A set out in s 105A.1.

409 Mr Walters submitted that whilst this part refers to the community's safety from the commission by the defendant of serious Part 5.3 offences, it is not so confined. The community is also made safer, and protected, by the rule of law and by the confidence the community holds in the rule of law. Weight should be given to the terms of the sentence imposed by the trial judge. The community is made safer, and protected, by adherence to the norms of international law, and by the common law presumption in favour of the liberty of the subject. Further to the above, Mr Walters submitted that the concept of rehabilitation is implicitly contained within the words of s 105A.7(1)(b) and encompassed in s 105A.8(1)(a).

410   Ms Orr emphasised that the current legislation does not expressly articulate a rehabilitative purpose, its sole express object being to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk. That stands in contrast to the legislation considered by the Court of Appeal in Nigro and to the NSW THRO legislation. Ms Orr submitted that this does not mean that rehabilitation of the offender is not relevant. In a number of respects, the provisions do expressly contemplate the relevance of rehabilitation. As Ms Orr put it, Parliament clearly turned its mind to the role of rehabilitation in this scheme, giving it a very specific and identified role in respect of the assessment of unacceptable risk. It was implicit in Ms Orr's submissions as I perceived them, however, that the pursuit or fostering of rehabilitation should play no role when the safety and protection of the community is being considered as one of the matters under s 105A.8(1).

411 I think Mr Walters read too many unwritten words into ss 105A.7(1)(b) and into s 105A.8(1)(a). The stated purpose of the legislation is clear, and the safety and protection of the community is to be achieved, where appropriate, by the continuing detention of terrorist offenders who pose an unacceptable risk of reoffending. The question of whether an offender has rehabilitated is clearly relevant to the overall question whether he or she will pose an unacceptable risk, but the focus in s 105A.8(1)(a) is not on rehabilitation. (footnotes omitted)

72. It follows that, in determining whether Mr Pender poses an “unacceptable risk”, and whether there are “less restrictive measures” that would prevent that risk, the focus is on the risk Mr Pender poses to the safety of the community (as the objects of Division 105A make clear: s 105A.1) as opposed to the impacts of the continuing detention order on Mr Pender’s liberty and wellbeing.

Less Restrictive Measures: Section 105A.7(1)(c)

73. I shall briefly look at the relevant principles in this respect noting my earlier observations as to some limitations in the operation of this provision in this case.

74. The Court must be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

75. The relevant question in this context is not whether the less restrictive measure is capable of eliminating any risk Mr Pender may pose of committing a serious Pt 5.3 offence but rather whether there are less restrictive measures that would reduce the risk posed by Mr Pender to a point where the risk is no longer unacceptable.

76. The phrase “less restrictive measure” is not defined, and its meaning was not directly addressed in Benbrika. While recognising the limitations of dictionary definitions, they are useful in signifying the range of possible meanings a word might convey: see TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439 at [80]. One definition of “measure” is “an action or procedure intended as a means to an end”: Macquarie Dictionary. In the context of s 105A.7(1)(c), the plan or course of action is directed to the management of an otherwise unacceptable risk posed by a terrorism offender.

77. I do not consider that the meaning of the expression “measure” is guided only by Dictionary definitions, as the construction of the provision is constrained by the surrounding context in which the words “less restrictive measure” appear. The use of the words “there is” in introducing the subject “no less restrictive measures” would suggest the measure must be available. However, that does not confine the Court’s consideration to only a measure that is actually in place but rather to measures that may be put in place to prevent an acceptable risk. The parties raised questions as to whether a Court may consider a hypothetical measure in the abstract or any unrealistic measures but it is unnecessary to consider that issue in this case as the measures are already in place.

Division 104 of the Criminal Code

78. Control orders may be made under Div 104. The objects of the Division of the Criminal Code are as follows:

104.1 Objects of this Division

The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes:

(a)   protecting the public from a terrorist act;

(b)   preventing the provision of support for or the facilitation of a terrorist act;

(c)   preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

79. If the AFP Minister (see s 100.1) consents to a request for an interim order under s 104.2, the senior AFP member may request an interim control order (being an order made under ss 104.4, 104.7 or 104.9) by the taking of the procedural steps specified in s 104.3.

80. The expression “senior AFP member” is defined in s 100.1 as meaning:

(a) the Commissioner of the Australian Federal Police; or

(b) a Deputy Commissioner of the Australian Federal Police; or

(c) an AFP member of, or above, the rank of Superintendent.

81. A control order may be made upon the conditions in s 104.4 being met. Section 104.4 provides as follows:

104.4   Making an interim control order

(1)   The issuing court may make an order under this section in relation to the person, but only if:

(a)   the senior AFP member has requested it in accordance with section 104.3; and

(b)   the court has received and considered such further information (if any) as the court

requires; and

(c)   the court is satisfied on the balance of probabilities:

(i)   that making the order would substantially assist in preventing a terrorist act; or

(ii)   that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or

(iii)   that the person has engaged in a hostile activity in a foreign country; or

(iv)   that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or

(vi)   that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(vii)   that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and

(d)   the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

(i)   protecting the public from a terrorist act; or

(ii)   preventing the provision of support for or the facilitation of a terrorist act; or

(iii)   preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

(2)   For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:

(a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and

(b)   as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and

(c)   as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).

(2A)   In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following:

(a)   the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b)   the physical and mental health of the person;

(c)   the benefit to the person of having a meaningful relationship with his or her family and friends;

(d)   the right of the person to receive an education;

(e)   the right of the person to practise his or her religion;

(f)   any other matter the court considers relevant.

(3)   The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.

(4)   In paragraphs (1)(c) and (d), a reference to a terrorist act includes:

(a)   a reference to a terrorist act that does not occur; and

(b)   a reference to a specific terrorist act; and

(c)   a reference to more than one terrorist act

82. The terms of an interim control order are governed by s 104.5. Section 104.5(1) provides as follows as to the mandatory terms of such an order:

(1)   If the issuing court makes the interim control order, the order must:

(a)   state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

(b)   specify the name of the person to whom the order relates; and

(c)   specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and

(d)   state that the order does not begin to be in force until:

(i)   it is served personally on the person; and

(ii)   if the person is detained in custody—the person is released from custody; and

(e)   specify a day on which the person may attend the court for the court to:

(i)   confirm (with or without variation) the interim control order; or

(ii)   declare the interim control order to be void; or

(iii)   revoke the interim control order; and

(f)   specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and

(g)   state that the person’s lawyer may attend a specified place in order to obtain a copy of the interim control order; and

(h)   set out a summary of the grounds on which the order is made.

Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12).

Note 2: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).

(1A)   The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 7 days, after the order is made.

(1B)   In specifying a day for the purposes of paragraph (1)(e), the issuing court must take into account:

(a)   that the persons mentioned in subsection 104.14(1) may need to prepare in order to adduce evidence or make submissions to the court in relation to the confirmation of the order; and

(aa)   if the person to whom the order relates is detained in custody - any other matter relating to the person’s detention that the court considers relevant; and

(b)   any other matter the court considers relevant.

(1C)    To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day

83. The obligations, prohibitions and restrictions that a court may impose in an interim control order are specified in s 104.5(3) although the provision does not deal exhaustively with the obligations, prohibitions and restrictions that may be imposed by a court. Section 104.5(3) provides as follows:

The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:

(a)   a prohibition or restriction on the person being at specified areas or places;

(b)   a prohibition or restriction on the person leaving Australia;

(c)   a requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours;

(d)   a requirement that the person wear a tracking device;

(e)   a prohibition or restriction on the person communicating or associating with specified individuals;

(f)   a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);

(g)   a prohibition or restriction on the person possessing or using specified articles or substances;

(h)   a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);

(i)   a requirement that the person report to specified persons at specified times and places;

(j)   a requirement that the person allow himself or herself to be photographed;

(k)   a requirement that the person allow impressions of his or her fingerprints to be taken;

(l)   a requirement that the person participate in specified counselling or education.

Note: Restrictions apply to the use of photographs or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see section 104.22).

84. Section 104.5(3A) and (3B) concern orders as to electronic monitoring. Sub-sections (4) and (5) deal with communicating and associating and sub-section (6) with counselling and education.

SUBMISSIONS

The Plaintiff’s Submissions

85. In summary, the plaintiff’s submissions were as follows:

1. That offending has occurred in relation to those known to him (such as his previous foster family) as well as strangers, and police. While he has committed only one serious Pt 5.3 offence in the past, namely, the index offence, his risk is that of committing an act with the relevant terrorism-related intent.

2. The risk posed by Mr Pender is highlighted by the fact that his offending has persisted despite several periods of imprisonment. Whenever, he has been released from custody, including on parole, he has either offended or breached parole soon after release.

3. The plaintiff recognised that Mr Pender’s offending is intimately connected with his mental illness and substance abuse disorder. Both have been identified as significant risk factors by the experts. They mean that Mr Pender is more likely to engage in a spontaneous attack rather than a deliberate planned attack. That also makes his risk more difficult to manage in the community, including by a control order. Those conditions are currently under control while in custody, although Mr Pender has continued to have hallucinations and is still dependent on methadone. Dr Ellis has described Mr Pender’s mental illness as “treatment resistant”.

1. Mr Pender’s general history of offending is relevant to the issue of the safety and protection of the community and informs the assessment of risk of committing a serious Pt 5.3 offence under s 105A.8(1)(i). Mr Pender’s conduct satisfies the first element of a serious Pt 5.3 offence (Mr Pender engaged in acts causing serious physical harm to a person, and serious damage to property, both of which are capable of satisfying the physical element of the definition of a terrorist act in s 100.1(2) of the Criminal Code). His offending has persisted over time.

2. Whilst it was accepted that much of Mr Pender’s prior offending does not have any associations with a political, religious or ideological cause, there nonetheless exist, an unacceptable risk of Mr Pender committing the requisite offence.

3. The index offending had the intent element of the defender of a terrorist act. That definition is broad and it extends to conduct done with the intention of “advancing a political, religious or ideological cause”, with the intention of coercing the government or intimidating the public or a section of the public: s 100.1(1) (subject to exceptions in s 100.1(3) which are not presently relevant).

4. Aspects of Mr Pender’s earlier offending established “characteristics of extremism” such as Mr Pender’s conviction for using a carriage service to threaten to kill contrary to s 474.15 of the Criminal Code in 2015.

5. Mr Pender has consistently been fixated on religion, although his particular religious affiliations have changed over time. As recently as earlier this year, Mr Pender has shown an interest in making contact with other inmates convicted of terrorist offences and with professing religiously motivated sympathy for their causes. There is evidence that demonstrates a real potential for Mr Pender to commit an act with “the intention of advancing a political, religious or ideological cause”:

6. The experts’ opinion is consistent with a finding that there exists an unacceptable risk of Mr Pender committing a serious Pt 5.3 offence.

7. It is uncontroversial that the risk of Mr Pender committing a serious Pt 5.3 offence is affected by his substance use disorder and mental health condition. The relevant factual dispute is over whether there is a real risk that those factors will not be adequately controlled if Mr Pender is released into the community.

8. Reliance was placed on the evidence of Dr Eagle and Dr Dewson around the limitations of a CTO and the risk that Mr Pender will fail to comply and engage with the services available to him.

9. It was acknowledged on the reports of Dr Eagle and Dr Dewson that the supports available if Mr Pender were realised would be beneficial however, it was noted that this is largely dependent on Mr Pender’s mental health stability and abstinence from illicit substances and alcohol.

10. The fact that the risk of Mr Pender’s future offending is connected with his mental illness and substance abuse disorder does not take this matter outside the Division. Nor does it provide an answer to the question whether Mr Pender poses an unacceptable risk of committing a serious Pt 5.3 offence if released into the community.

11. All the experts agree that the risk posed by Mr Pender would likely be reduced by the making of a control order, a CTO, engagement with community mental health treatment, stable accommodation and NDIS funding.

12. However, Mr Pender’s history shows a pattern, upon release from custody, of relapse into drug use and non-compliance with his medications. The plaintiff’s case, which is borne out in the evidence of Dr Dewson and Dr Eagle, is that there is a very real risk that those risk factors will not adequately be under control should Mr Pender be released into the community.

13. Reliance was placed on the evidence of Dr Eagle and Dr Dewson, in relation the “deterrent effect of a control order”. It was submitted that Mr Pender’s severe mental illness, will negatively affect the effectiveness of the control order.

14. Control orders have significant limitations as attested to in Commander Booth’s evidence.

15. The limitation of the control order with respect to drug and alcohol is one of enforcement.

16. The practical difficulty arising from these limitations is that, by the time non-compliance with possessing or using a prohibited item is detected (if at all), Mr Pender’s behaviour may already have escalated into the violence that he has exhibited under the influence of drugs and alcohol in the past.

17. The Court should not accept that a decline in Mr Pender’s mental health will be discovered by those supervising him. Given the risk that, in the context of a relapse into substance abuse and/or a failure to take medication, Mr Pender’s mental health may deteriorate rapidly, meetings with a case manager once a month or a psychiatrist once every three months, as provided for under the CTO, provide no real assurance that such a deterioration would be detected before the commission of relevant offending.

18. A control order cannot address some of Mr Pender’s risk factors arising from his mental illness and drug/alcohol addiction, and other risk factors.

19. A control order is also ineffective in addressing two key risk factors for Mr Pender: his mental health and substance use disorder. As Mr Pender acknowledges, a control order cannot require Mr Pender to engage in counselling or education or take.

20. The control order would be insufficient to reduce the risk posed by Mr Pender to a level that was acceptable.

21. Some measures, such as engagement with drug and alcohol counselling, would be entirely voluntary.

22. It was submitted that there are a number of limitations in a CTO:

1. Mr Pender has been subject to CTOs in the community in the past and has been non-complaint with treatment and arguably have not been able to be implemented

2. The CTO only requires meetings with a psychiatrist every 2 months, and urine tests once per month.

3. Mental health services are unable to routinely supervise oral medications in the community and it is currently unclear whether an injectable antipsychotic medication would be sufficient to maintain the stability of Mr Pender’s illness even in the context of abstinence from alcohol and illicit substances:

4. Finally, a CTO can only address certain risks relating to Mr Pender’s mental health; it cannot address other risk factors contributing to his behaviour.

26. Dr Eagle observed that, a CTO does not necessarily ensure that Mr Pender will take his medications as scheduled. And it does not address his substance use disorder. This means that, even if Mr Pender is compliant with his treatment regime, his mental health could deteriorate if he relapsed to substance use with a likely increase in his risk of violence.

27. Further, the mechanisms for enforcing compliance with a CTO are limited. While there is provision for the Director of a mental health facility to inform Mr Pender of the need to comply with the order (see s 58(2)(b) of the Mental Health Act), non-compliance would not result in Mr Pender being brought to a mental health facility until a breach notice had been issued under s 58(3) and subsequently not complied with: see s 58(4). This does not adequately address the particular risk posed by Mr Pender – namely, the risk that, especially in the context of substance use, his behaviour will rapidly escalate into violence before his non-compliance, and its effects, are detected.

28. The experts emphasised that Mr Pender would need to be subject to all of the measures which Mr Pender relies upon as mitigating risk and there would need to be comprehensive and coordinated services and multi-agency collaboration. While there are presently various supports on offer to Mr Pender, it is not yet clear that they will be coordinated in this way. Nor is there any present indication of how Mr Pender’s substance use disorder would be managed in the community, given his outstanding treatment needs in that respect.

29. As has been recognised elsewhere, the mere availability of an NDIS support package does not demonstrate a material reduction in risk. While this funding ensures that various supports will be available to Mr Pender in the community, it does not ensure that he will engage with them.

30. The plaintiff submissions regarding the safety of the community have been set out below.

31. As to the exercise of a residual discretion to refuse relief by the Court, the plaintiff submitted the Court should not readily decline to make a continuing detention order where it is otherwise satisfied of the matters in sub-paras 105A.7(1)(b) and (c). To do so would involve the Court concluding to a high degree of probability that an offender poses an unacceptable risk of committing a serious terrorism offence if released into the community, and that there is no less restrictive way to prevent that risk, yet nonetheless permitting the release of the offender into the community. It would require the most extraordinary circumstances to justify the Court exposing community to the recognised unacceptable risk, in the face of the object of Division 105A set out in s 105A.1 “to ensure the safety and protection of the community”.

32. In light of the above, the Court is in no position to conclude that the effects of continuing detention on Mr Pender would be so deleterious that, despite being satisfied that he poses an “unacceptable risk” that cannot be prevented by “less restrictive measures”, he should be released from custody.

33. Mr Pender present preoccupation with Judaism is not a protective factor. The religious fixation is changeable and there is a risk of reverting to a pathological preoccupation with religion with external elements. He is susceptible to influence and his prior insight into that propensity.

34. The concurrent expert evidence is to the effect that Mr Pender’s current denunciation of violence is of little weight.

35. On the criminal expert evidence, Mr Pender’s psychiatric state will deteriorate unless he maintains a regular administration of psychiatric medication and abstinence from drugs and alcohol. Any deterioration will be rapid.

36. There is a risk of relapse into drug and alcohol use although there are different risk assessments between the experts. The risk is evaluated upon current circumstances, but the management of future risk is largely agreed. The risk of deterioration and resulting adverse consequence is high.

86. The plaintiff advanced submissions orally, they are summarised below:

1. The CTO which will operate if Mr Pender is released from custody is still quite limited. Home visits are voluntary and, whilst Mr Pender is required to undertake urine tests “there is an inability to take steps if Mr Pender fails a test”.

2. Experts

1. All experts agreed to Mr Pender’s risks of disengagement and non-compliance with mental health treatment and substance use in the community are high. That applied even with a more stringent treatment plan.

2. The measures to manage the risk are only effective if Mr Pender complies with them. But the experts agreed that there was a real risk he would not comply with the orders which would result in his mental health deteriorating or a return to drug and alcohol use. The deterioration will be rapid.

3. There is a lack of enforceability of measures. That is true of the CTO and there are differences in proving a breach of control orders relating to the use of drugs and alcohol. Mr Pender previously committed an offence while being electronically monitored.

Mr Pender’s Submissions

87. Mr Pender’s submissions were in summary, as follows:

1. Mr Pender submitted that Court would not be satisfied either first, to a high degree of probability that the offender posed an unacceptable risk of committing a serious Pt 5.3 offence if the offender is released into the community; and secondly, would not be satisfied that there is no other less restrictive measure that would be effective in preventing any unacceptable risk posed by Mr Pender.

2. Mr Pender opposed the making of the CDO on two interrelated bases:

1. Firstly, if released into the community, Mr Pender will have significant structure, support, and control around him that will ameliorate any risk to a level of acceptability (s 105A.7(1)(b)); and

2. Secondly, the Court will be satisfied that there are less restrictive options that will be effective in ameliorating any supposed unacceptable risk (s 105A.7(1)(c)).

3. At the core of the decision for the Court is whether Mr Pender posed such a level of risk of committing, not just any offence, but a serious terrorism offence, to warrant his ongoing detention after the completion of his sentence. In Mr Pender’s submission, this is weak.

4. The relevant risk is the risk of committing a serious offence against Pt 5.3 of the Criminal Code. Serious terrorism offences are offences with a maximum penalty of 7 or more years of imprisonment. In general terms, a terrorist act requires the act to be committed with the intention of advancing a political, religious, or ideological cause; and the act, or the threat, must be undertaken with the intention of coercing, or influencing a government, or intimidating the public, or a section of the public. It is not a terrorist act if the action is advocacy, protest, dissent, or industrial action, or is not intended to cause serious physical harm to a person, or death, or endanger the life of a person, or create a serious risk to the health or safety of the public or section of the public.

5. The risk of general re-offending has no bearing on the risk assessment process that the Court is engaged with. Even if the Court determines that Mr Pender is guaranteed to re-offend, even to re-offend in a serious manner, it is insufficient and improper basis to make a CDO under the Division. The only risk that the Court need be concerned with is that of committing a future serious offence contrary to Pt 5.3 of the Criminal Code.

6. In the current matter, Mr Pender accepted that the material demonstrates that he posed some risk of further offending and that there is some risk of the commission of a serious terrorist offence. However, Mr Pender submitted that the level of risk does not approach the category of unacceptability that would require his further incapacitation via preventative detention, noting in particular:

1. Dr Ellis noted (at page 18) that there is no information Mr Pender has had specific paramilitary training.

2. The risks are insufficiently linked to the presence in Mr Pender of any ideology supportive of a terrorist act (and therefore predictive of a Pt 5.3 offence being committed). It is submitted that this is sufficient to dispose of the plaintiff’s application.

7. This is confirmed by the opinion of the independent experts as follows:

1. Dr Ellis (at page 19) was of the opinion that Mr Pender now displays a low number of characteristics associated with terrorist related violence and offences.

2. Dr Dewson assessed Mr Pender as a low-moderate risk of committing a violent extremist offence. That assessment was based on him remaining sober, engaging with ESP, and maintaining compliance with his medication. Dr Dewson stated that she had previously assessed Mr Pender as a moderate risk however the reduction is on account of his mental health stabilisation and the prosocial supports in place for him in the community.

3. Dr Eagle was of the opinion that Mr Pender would be at an elevated risk of committing a serious Pt 5.3 offence in the absence of supervision. She assessed the risk in the absence of any supervision or control order as moderate to high. However, she added that the risk would be reduced if he were directed to engage with community health treatment, was able to access stable accommodation and access additional supports as required (for instance NDIS). Those measures and restrictions to which Dr Eagle referred have been put in place.

4. Dr Ellis was of the opinion (at page 19) that the risks presented can be managed by a combination of community orders and intervention. Dr Ellis expressly contemplated stable accommodation, supervision in the form of a control order, a weapons and firearms prohibition order, and a CTO under the Mental Health Act.

8. The evidence clearly established that Mr Pender was not presently motivated by any violent or extreme ideology. Mr Pender continued to study Judaism and wished to do so after his release. He intends to formally convert to Judaism.

9. The Court would be satisfied that Mr Pender’s renouncement of Islam and extremist views were genuine and supported by multiple sources. Dr Dewson identified his rejection of violence and beliefs associated with Islamic extremism as a protective factor.

10. Mr Pender gave evidence in the sentence proceedings before Justice Harrison (R v Pender [2019] NSWSC 1814 (“Pender”)) that he had renounced Islam and extremist views.

11. The theological report of Benjamin Cook, the religious support officer for The Proactive Integrate Support Model (PRISM) dated 14 May 2021, concluded that currently there is no indication that Mr Pender holds or promoters an extreme religious ideology; or the support of violence to achieve social, political, or religious goals. The author noted that he had renounced Islam and recorded that he regretted his past outbursts, wants nothing to do with extremism, and was not willing to die for any cause or belief. Mr Cook discusses Mr Pender’s current interest in Judaism, and notes that Mr Pender makes a distinction between Judaism, the religion, and Zionism; which he identifies as a political ideology. He added: “he has expressed that he is interested in the religious aspect of Judaism and not in the political ideology”.

12. The Court was also invited to take into account [21]-[24] of the affidavit of Sue Wilson, Assistant Commissioner of Corrective Services New South Wales (“CSNSW”), dated 15 July 2021. The document discussed Mr Pender’s conversion to Judaism, his attitude to his Islam while in custody, and reasons why he might have pretended to pursue Islamic faith having renounced it. The deponent provided evidence obtained from the Corrections Intelligence Group and stressed (at [17]-[20]) the need for confidentiality in relation to this information and the concerns about public disclosure of CIG reports.

13. In addition to the absence of ideology, a further additional factor which reduced the likelihood that Mr Pender will engage in any relevant terrorist offence was provided by the ASIO report dated 2 September 2016 which stated, “investigative activity has determined that Pender does not have a current Australian passport and is therefore likely to be unable to travel offshore to engage in politically motivated violence”. Dr Ellis also noted that there is no information he has had specific paramilitary training. There was no evidence he could connect with funding sources or access to family or close associates who are involved in violent extremism.

14. Mr Pender’s change in ideology was also a relevant protective factor, but more significantly, also raised a significant issue as whether he had any motivation to commit any serious terrorism offence under Pt 5.3. Without this ideology, any offence committed by Mr Pender would not be a terrorist act and therefore did not fall under consideration of this legislative regime.

15. Dr Ellis was of the opinion, based on his assessment and the VERA 2R, that in terms of belief, attitudes, and ideology Mr Pender had no specific ideology at present. The adoption of a new religious identity by Mr Pender was not accompanied by violent extremist beliefs.

16. However, to the extent that the Court concluded that the presence in Mr Pender of the above risk factors does pose some risk of the commission of a relevant offence, the combination of the seven measures was sufficient to reduce any risk to an acceptable level.

17. The presence of these factors is relevant to both: the acceptability of any risk posed by Mr Pender (s 105A.7(1)(b)) and the measures available to manage the risk other than by further detention: (s 105A.7(1)(c)).

1. Dr Dewson and Dr Eagle considered that Mr Pender was fixated or pre-occupied with religion.

2. Even though Mr Pender is not presently following Islamic extremist beliefs, there is a real risk this may change in the future including relapse into psychosis with delusional beliefs. The result would be a risk if Mr Pender reverts to his pathological preoccupation with religion, with extremist elements or violence alongside that (Dr Ellis).

3. Mr Pender’s profile is highly unstable (Dr Eagle) and his account of his religious beliefs is unstable and changeable (Dr Ellis).

4. It is difficult to know when Mr Pender is being deceptive (Dr Eagle).

5. Mr Pender is susceptible to the influence of others and has poor insight into his susceptibility to influence from others (all experts).

6. Mr Pender is highly susceptible to developing violent extremist beliefs again in the future, in the right circumstances, namely, default on mental health treatment, substance use, and associating with those who would seek to influence him (all experts).

444. It may be the case, as found by Harrison J, that Mr Pender’s violent religious pronouncements are the “function of a state of confused suggestibility” or the consequence of Mr Pender’s mental illness rather than a devout adherence to misguided foundation but, as opined by Drs Eagle and Dewson, those conditions, in association with his religious beliefs from time to time, are very much factors contributing to the risk of Mr Pender engaging in the relevant offending. As mentioned earlier, the fact they may be the product, in whole or in part, of a disordered mind does not preclude, and, in fact, may exacerbate, the risk of committing a serious Pt 5.3 terrorist offence because the deterioration of Mr Pender’s state is a product of delusions associated with violet religious extremism.

445. Finally, in this respect, I accept the submission of the plaintiff that Mr Pender’s commitment to religious ideology in the manner I have described is capable of satisfying a relevant element of a terrorist act, namely, pursuant to s 100.1, an act done or threat made with the intent of advancing a political, religious, or ideological cause.

446. I turn then to the more broadly based opinions of risk by the Court appointed experts.

447. The opinions of the experts on the risk of Mr Pender committing a serious Pt 5.3 offence involved a discussion of both Mr Pender’s present risk when in custody and the risks associated with him being released from custody under the seven measures (or a substantial number of them) in the community.

448. As the defendant correctly observed, the experts opined in their reports as to the level of risk posed by Mr Pender. Dr Eagle opined that the risk of “engaging in a serious Pt 5.3 offence would be “moderate to high” in the absence of a supervision and control (and more likely than not in the community in the absence of supervision). Dr Dewson opined that the risk level was “low to moderate”, which corresponded with Dr Ellis’s conclusion that Mr Pender “now” displayed a low number of the characteristics associated with terrorist related violence and offences.

449. Senior counsel for Mr Pender submitted that each of the experts expressed caution about assessing the risk of future violence extremism or terrorism and that, when this uncertainty exists, the Court should prefer the “corroborated view” that the defendant is a low to moderate risk. On the other hand, senior counsel for the plaintiff submitted that Dr Eagle’s opinion should be preferred because she provided a more detailed and reasoned approach in expressing her opinion responsive to the question raised with her.

450. However, I do not consider that issue of risk assessment requires a resolution in the manner proposed by senior counsel for the plaintiff when closer attention is paid to the opinions expressed in their respective reports and the commonality of their views given during concurrent evidence.

451. It was common ground that the conditions suffered by Mr Pender, visa via, mental illness or substance abuse, are currently under control or substantially under control while Mr Pender is in custody, even though Mr Pender has continued to have hallucinations, is still dependent on methadone and Dr Eagle does not consider his substance dependency is in remission.

452. It was quite clear from Dr Ellis’s report that his risk assessment was predicated upon the stabilisation of Mr Pender’s conditions whilst in custody as Dr Ellis referred to Mr Pender’s state now and that he no longer had a fixation or pathological preoccupation with Islamic extremist beliefs which is associated with a deterioration in his function prior to incarceration, including homelessness, neglecting supervision and treatment and substance abuse.

453. Nonetheless, Dr Ellis opined that Mr Pender currently displayed an emergent and unsophisticated insight into his propensity for violence and understanding of the need for treatment and the management of same. Dr Ellis described his mental illness as “treatment resistant”. He also indicated that Mr Pender’s stress management techniques had not been able to be assessed and that “his past decompensation and prior impulsivity in stressful situations is the best marker that this area remains problematic”. Further, Dr Ellis opined that Mr Pender would most likely be at risk of extremist violence if under stress and he had decompensated to a point where he suffered delusions or was using substances. The risk factors in this respect were mental illness, personality disorder, substance use, background disadvantage and the attendant chaotic lifestyle that had accompanied this profile.

454. Dr Eagle opined that Mr Pender had substantial deficits in his emotional regulation skills, judgment, interpersonal skills and overall level of function and during exacerbations of his mental illness and/or period of intoxication his capacity to interpret reality, his judgement, his problem solving skills and impulse control and emotional regulation skills would be further impaired. Under those circumstances he would be at a heightened risk of acting on any violent ideation justified by ideological beliefs.

455. Dr Eagle found that Mr Pender’s risk of disengagement and non-compliance with mental health treatment and substance use in the community would appear to remain high, particularly in the absence of a comprehensive plan for reintegration, stable housing and assertive mental health treatment in the community.

456. Dr Eagle opined that Mr Pender would appear to be at most risk of carrying a knife with intention of causing physical harm to a police officer or a member of the public justified by extreme Islamic ideology.

457. Dr Dewson assessed Mr Pender’s risk at the low to moderate range due to his current mental health stabilisation and the pro-social supports in place for him in the community. However, she emphasised that Mr Pender’s risk profile is highly unstable and any return to violent extremism could occur rapidly and have serious consequences for Mr Pender and for the community. She further opined that there is a very real risk that Mr Pender could return to substance use upon release and/or become non-compliant with his psychotropic medication regime. This could see him deteriorate rapidly as evident by the increased presence of psychological symptoms (command hallucinations), impaired judgment whilst intoxicated, unchallenged thoughts related to violence and difficulties regulating his behaviour, which also illustrated the seriousness of the consequences if the risk eventuates. Those view of Drs Ellis, Eagle and Dewson summarised immediately above as to the nature and extent of the risk in the community and Mr Pender’s prospects of regressing into extremist violence or a violent ideation justified by ideological or religious beliefs corresponded to a large degree with the evidence given by the experts in their concurrent expert evidence where there is essentially unanimity.

458. Thus, the following common views emerged as to the question of a risk of that character from the concurrent evidence:

1. If regular administration of psychiatric medication and continued abstinence from alcohol and drugs are not maintained, it is highly likely, to the point of “psychiatric certainty”, that Mr Pender’s mental state will deteriorate.

2. The consequences of deterioration are fourfold:

1. a loss of contact with reality, hallucination and a belief in facts that are patently untrue, with a high degree of agitation brought on by those beliefs and a likelihood of impulsive action upon them. The delusions could be of a religious nature or be persecutory in nature;

2. if Mr Pender became stressed he may physically and psychologically crave substances such as in a case of uncertainty or conflict with others, feeling bored or under stimulated. This would result in behaviours to seek out the substances and would lead to psychosis;

3. a deterioration in his mental state would lead to a re-experiencing of trauma within his personality function such that if he felt relationships are conflictual or confusing he may become emotionally dysregulated and more impulsive, experience negative emotional states like anger and despair and act upon those states. It was noted that he has never had secure and stable relationships to learn to moderate his emotions himself;

4. as he deteriorated, Mr Pender would become more disorganised in his behaviour, his functionality will decline with a resultant rapid disengagement from all of his support services, his mental health supports and his other support including the abandonment of accommodation.

3. Whilst there was a disagreement between Dr Eagle and Dr Ellis as to whether Mr Pender’s substance abuse disorder was in remission, Dr Ellis accepted that the control over the substance use disorder was a function of a controlled environment. Both Dr Eagle and Dr Ellis agreed that Mr Pender’s substance use problem had been intractable when in the community.

4. Further, if released from detention and Mr Pender relapsed into alcohol or drug use, his medical condition would highly likely deteriorate. That deterioration would be rapid, a matter of weeks or days.

459. The deterioration of Mr Pender’s state in either of those areas will lead to a serious degradation of his condition in such a way as to create a very substantial risk for law enforcement officers and other members of the community with potentially serious consequences. I accept the submission of the plaintiff that the differences between the various experts as to risk assessments substantially concerned the assessment of the current characteristics of Mr Pender in the custodial environment whereas there is a large measure of agreement of the risks posed by Mr Pender in the event of a deterioration of his mental health or a return to substance abuse in the community. These developments, it was agreed, would make Mr Pender susceptible to lapsing into violence extremism and susceptible to the influence of others.

460. As mentioned, the concurrence of those views results, in my view, in the absence of a need to ultimately reconcile the position of the experts as to Mr Pender’s current risk status whilst in custody because the focus of attention must be upon the predictive capacity of Mr Pender’s current state in custody for his risk of committing a serious Pt 5.3 offence if he is released in the community. The experts share common concerns as to the nature and extent of the risks posed by Mr Pender’s condition deteriorating in the community and of the prospects of that occurring. In the event, if I was required to express a preference as between the expert opinions of the Court appointed psychiatrists, Dr Ellis and Dr Eagle, I would agree with the plaintiff that overall Dr Eagle’s report does appear to be a more comprehensive analysis of risk in the context of the particular questions posed. Dr Dewson’s opinion as to the level of risk was occasioned by some significant qualification.

461. This is the context in which the suite of measures, the subject of much earlier analysis, must be assessed; that is, the capacity of the seven measures to manage a risk of the character I discussed at the outset of these considerations including the risks arising from a deterioration in Mr Pender’s mental state or substance abuse in the community.

462. An appropriate starting point for this discussion is two aspects of the evidence of the independent experts.

463. Firstly, there is one aspect of Dr Eagle’s report (at 448.5.4, earlier extracted in this judgment) with which Dr Ellis and Dr Dewson agreed. Dr Eagle opined that Mr Pender had never engaged in mental health treatment or follow up, based upon the information available, and he had led a chaotic unstable lifestyle throughout his life. She further stated that he failed to report symptoms of mental illness, displayed emotional instability and demonstrated problems in compliance in custody despite the controlled environment. As earlier mentioned, she then opined “Mr Pender’s risk of disengagement and non-compliance with mental health treatment and substance use in the community would appear to remain high, particularly in the absence of a comprehensive release plan for reintegration, stable housing and assertive mental health treatment in the community”.

464. Secondly, Dr Eagle opined that the degree of risk was a function of the existence of a release plan for reintegration, stable housing and assertive mental health treatment in the community such that the magnitude of the risk was a function of the extent of the absence of community support of that kind.

465. A central component of managing the risk in the community through the seven measures was the Control Order and CTO although all of the measures need to be assessed at the end of the day for their total effect.

466. There are three fundamental problems with the Control order and CTO reducing or mitigating the risks posed by Mr Pender in the community, as described above, to an acceptable level.

467. First, Mr Pender is highly susceptible to developing violent extremist beliefs in the future if he defaulted on mental health treatment. He is unstable and any deterioration would be rapid and without detailed planning. The experts agreed that mental health and compliance with his treatment regime was a significant factor in his risk of committing a serious Pt 5.3 offence. Dr Eagle and Dr Dewson agreed that Mr Pender has outstanding treatment needs and much will depend on his motivation to comply.

468. Mr Pender has been subject to CTOs in the community in the past, made in November 2014, reviewed in December 2014 and May 2015 and lasting up until at least November 2015. Yet in August and September 2015 he was admitted to hospital for mental health issues and also committed the October 2015 offences. He had also been required to take medication under bond or parole conditions in the past. As Dr Eagle noted “CTO’s alone have not previously prevented Mr Pender from being non-compliant with treatment and arguably have not been able to be implemented”: at [448.5.5(b)]. Dr Dewson stated it is “well established that his dysregulation has been associated with periods of medication non-compliance (or ineffective treatment)”: at [86(II)].

469. As explained above, Mr Pender’s behaviour has the potential to deteriorate rapidly, especially if he succumbs to substance use. Dr Eagle opined: “If Mr Pender resides in stable accommodation and has some level of engagement with mental health services, a CTO would assist in ensuring a return to hospital if he becomes non-compliant with treatment. A CTO would not reduce the risk of illicit substance use or prevent offending”: at [448.5.5(b)].

470. As to the limitations of a CTO itself, as Dr Eagle has observed, a CTO does not necessarily ensure that Mr Pender will take his medications as scheduled. And it does not specifically address his substance use disorder. This means that even if Mr Pender is compliant with his treatment regime, his mental health could deteriorate if he relapsed to substance use with a likely increase in his risk of violence: Dr Eagle at [448.4.3(iv)(a)]. Thus, even if he was to continue his medical treatment, if he relapsed into alcohol and drug use his mental condition would be highly likely to decline.

471. Mr Pender is on various oral medications. While it is possible for community mental health services to supervise medication in the community, that is dependent on the participant being willing to attend at the allocated time and, given his history, Mr Pender would not be considered suitable for medication supervision: T46.2-18. While an NDIS worker could supervise oral medications, that is also voluntary: T46.10-14, 47.10 14.

472. Further, the mechanisms for enforcing compliance with a CTO are limited. While there is provision for the director of a mental health facility to inform Mr Pender of the need to comply with the order (see s 58(2)(b) of the Mental Health Act), non-compliance would not result in Mr Pender being brought to a mental health facility until a breach notice had been issued under s 58(3) and subsequently not complied with: see s 58(4). This does not adequately address the particular risk posed by Mr Pender, namely, the risk that, especially in the context of substance use, his behaviour will rapidly escalate into violence before his non-compliance, and its effects, are detected.

473. While it is Mr Pender’s mental health team who are to manage his medications, the fact remains that repeated non-compliance with medication would constitute a risk-signalling behaviour that, even if identified by police, they would have no power to address under the Control order, visa via, a requirement. While it is possible that the police can work together with Mr Pender’s mental health team, there are legal and practical barriers to the disclosure of information to police by those who administer CTO’s.

474. While a control order can include a requirement that a person participate in specified counselling or education, a person is only required to participate if the person agrees, at the time of the counselling or education, to participate in the counselling or education: s104.5(6). As discussed earlier, this is a limitation in the effectiveness of the Control Order, particularly due to the absence of drug and alcohol counselling by Mr Pender and his substance abuse disorder. If Mr Pender does not agree to participate in those activities, a condition of this kind imposed upon him therefore cannot be enforced. Mr Pender’s history suggests there is a substantial risk he will decline to do so: T43.39 T44.5.

475. Further, I note that an obstacle to monitoring Mr Pender’s compliance with any control order is his lack of support from family and friends. This network cannot be used by police to gather information in relation to any risk-signalling behaviours displayed by Mr Pender.

476. Secondly, there is the issue of drug and alcohol use.

477. As earlier mentioned, Dr Ellis opined as to the real significance of a return to drug and alcohol use for the risks posed by Mr Pender.

478. As to the risks of substance use, the essential limitation of a control order is not that it cannot include measures restricting the use of drug and alcohol through the order.

479. I have earlier discussed the limitations in the control of drug and alcohol use.

480. While a control order can prohibit possessing drugs and alcohol for consumption, and possessing weapons such as a knife, those items are freely available in the community and the mere imposition of a control order cannot prevent Mr Pender obtaining them. Further, as earlier discussed, there is a limitation in the Control Order in relation to drugs and alcohol, due in large part to the lack of power under Div 104 to require Mr Pender to undertake drug or alcohol testing.

481. Mr Pender has been subject CTO’s in the past, but it has not controlled his substance use: T42.23-25. Further, CTO’s have not controlled his mental health well in the past. While on such an order, Mr Pender was readmitted to hospital twice, committing a stalk/intimidate offence against the son of his foster parents and posted a martyrdom video to Facebook threatening to kill Australian citizens.

459. While the CTO can assist in reducing risk when used in conjunction with clinical interventions such as counselling, group programs and substitute medications and are more rigorous than the present CTO, it was correctly submitted by the plaintiff that, although there is an increase in the stringency of the proposed CTO, it does not alter the difficulties associated with the CTO in managing the risk of Mr Pender. The principal risk factors in that respect were Mr Pender’s risk of disengagement, non-compliance with mental health treatment and substance use in the community which remained high even with the CTO being more stringent.

460. Further, a community mental health team, which would be administering the order in the community, in practice do not have mechanisms to take steps if a person fails a urine test: T43.9-11. Failing a urine test in and of itself does not justify detaining a person in a mental health facility, unless they show signs of relapse, as stated by Dr Eagle.

461. Dr Eagle stated the only way of managing his substance use would be through another legal mandate, such as a control order: T43.15-19. However, Commander Booth explained the limitations of a control order in managing drug and alcohol use, namely, the difficulty in proving a breach and lack of enforcement as well as the difficulty in identifying whether a change in behaviour is due to consumption of alcohol or drugs or as a result of Mr Pender’s mental health. Given Mr Pender’s history of not complying with parole obligations, there is a substantial risk he would breach any control order prohibition regarding alcohol and drugs: T45.3-16, T51.15-34.

462. Thirdly, while electronic monitoring can be imposed, there is no power to impose scheduling as often occurs as conditions of Extended Supervision Orders under the CHRO Act or THRO Act. While electronic monitoring can be used in combination with scheduling to promote attendance at medical appointments and pro-social activities, that cannot be done under Control orders under the Criminal Code. Further, while electronic monitoring can be used to monitor compliance with other conditions of the control order, it obviously cannot indicate whether Mr Pender is consuming alcohol or drugs, procuring a weapon, approaching police officers or suffering from a rapid decline in his mental health. The evidence is that it can be used to detect movements into an exclusion zone (if the device enters or approaches a prohibited place or area).

463. Dr Ellis accepted that the inability to impose a “schedule” would somewhat reduce his confidence that Mr Pender could be managed in the community under a control order: T50.24 44.

464. The effectiveness of controls such as electronic monitoring, abstinence from drugs and alcohol and engagement in education and counselling are largely dependent upon the willingness of an offender to comply with them. In the past Mr Pender has had difficulty complying with conditions of parole and with following the rules of various rehabilitation programs, including because of his mental health and substance use issues. In Commander Booth’s opinion this suggested a risk that Mr Pender may not comply with the controls under any order. For example, Commander Booth was not confident that he would comply with a control requiring him only to use an authorised device, or that he would necessarily charge and take that device with him, which would make it difficult to monitor his compliance with the controls and to maintain open lines of communication with him.

465. While there are NDIS supports in place, engagement with those is also voluntary, and again there is a substantial risk Mr Pender will not engage: T44.7-40.

466. I accept that the making of a Firearms order would overcome a limitation in the Control Order where there are no search powers. As opined by Dr Ellis, the imposition of a Weapons and Firearm prohibition order would “fill the gap” by adding such a power, but it is only one additional factor.

467. When regard is had to the fact that the Control orders and CTO together with the remainder of the seven measures are critical to the prevention of Mr Pender’s mental health state deteriorating in the community or his substance abuse resuming, the deficiencies in the measures must be seen as substantial, particularly in the light they must grapple with a potential deterioration of Mr Pender’s condition as earlier described occurring, rapidly declining with resultant serious consequences.

468. Further, there remains the issue raised by Dr Eagle as to the need for the sharing of information between police and medical authorities (as discussed above) and adequate collaboration between relevant authorities. The experts emphasised that Mr Pender would need to be subject to the suite of measures identified above, in such a way that the resources were to be “comprehensive and coordinated” given his previous difficulties with compliance (Dr Ellis, p 19). “Effective multiagency collaboration” was required (Dr Eagle [448.5.4]). While there are presently various supports on offer to Mr Pender, it is not yet clear that they will be coordinated in this way; Dr Eagle expressed doubts. Nor is there any present indication of how Mr Pender’s substance use disorder would be managed in the community, given his outstanding treatment needs in that respect.

469. I acknowledge that the independent experts were asked by senior counsel for Mr Pender if Mr Pender could be managed in the community by the suite of measures in combination.

470. The defendant submitted that, as per their primary reports (and supplementary opinions in their concurrent evidence) the answer given by the experts was in the affirmative, although the experts expressly eschewed any opinion as to the acceptability of the risk as that was not a matter for psychiatric opinion.

471. For example, all the experts agreed that the risk posed by Mr Pender would be likely be reduced by the making of a control order, a CTO, engagement with community mental health treatment, stable accommodation and NDIS funding: Eagle Report [448.5.1]; Dewson Report [87]; Ellis Report pp19-21.

472. However, the experts were not as sanguine as to the management of risks associated with Mr Pender’s return to the community under the suite of measures as was contended by Mr Pender. I have earlier referred to their discussion of the nature and extent of the risk, the high prospects for disengagement and non-compliance with mental health treatment and return to substance use and the likely rapid deterioration if there is disengagement and non-compliance. There are some further considerations in this respect.

473. Dr Eagle and Dr Dewson each produced supplementary reports on 6 October 2021 which took account of the further supports that would be available to Mr Pender were he to be released. (Dr Ellis did not prepare a supplementary report, and, may be taken to have considered this information did not affect his assessment of risk.) While Dr Dewson acknowledged these supports would likely have a positive impact, she concluded that “[t]here is no overall change to Mr Pender’s risk score or profile”: [14]. Dr Eagle reiterated her earlier opinion that the “stability of his mental illness will largely depend on his ability to remain abstinent from illicit substances and alcohol, and remain compliant with treatment”, noting his “history of rapidly disengaging from mental health services in the context of illicit substance and alcohol use”.

474. Further, in their concurrent evidence, the experts gave a guarded affirmative answer to this question in the light of their earlier evidence during the concurrent evidence as to the nature and extent of the risk in the event of mental deterioration or substance abuse and the prospects of that deteriorating materialising.

475. Dr Ellis said a CTO would not be enough but the suite of measures may be enough to “manage his risk” although Mr Pender had never managed to comply before and any intervention would need to be rapid. Dr Dewson was more optimistic in the light of the suite of measures but remained “somewhat sceptical”. Dr Eagle thought Mr Pender could potentially be managed by the suite of measures if the respective “supports” were together but she retained concerns as to Mr Pender’s ability to transition in the community without relapsing into substance use or disengaging from “mental health”. She could not see any further steps which could be taken at this stage in custody and that Mr Pender could be “treated” to know whether the supports are enough.

476. Mr Pender’s mental state was such that he has difficulty with emotional regulation and impulse control and instability together with his outstanding need for treatment.

477. Whilst I have reached that conclusion I consider the suite of measures are capable of reducing the risks associated with releasing Mr Pender into the community. I do not consider (after approaching the question of an unacceptable risk to the requisite standard of probability in s 105A.7(1)(b)) that those measures render the requisite risk to an acceptable level.

478. I have taken into account that the risk of Mr Pender committing a serious Pt 5.3 offence would not necessarily result in a large loss of life, but he represents real risks to members of the police force and other members of the community which are serious and involve the potential for violence. There is obvious and serious risk to the community which I have taken into account. This directs particular attention having regard to the objects of the Division and s 105.8(1)(a).

479. In all the circumstances, and having regard to the matters in accordance with s 105A.8 discussed above, I am satisfied to a high degree of the probability, on the basis of admissible evidence, that Mr Pender poses an unacceptable risk of committing a serious Pt 5.3 offence if Mr Pender is released into the community. I have undertaken that assessment on the basis that, upon Mr Pender’s release into the community, he would have available to him and there would be active the suite of measures.

480. The corollary of that consideration in this case is that I am satisfied that, for the purposes of s 105.A.7(c), there is no less restrictive measure that could be effective in preventing the unacceptable risks.

481. There remains the question as to whether the Court might exercise a residual discretion to refuse to make a continuing detention order.

482. I do not consider that factors exist which warrant the exercise of such a discretion in this case.

483. The Court has determined there exists an unacceptable risk for the purposes of s 105A.7(1)(b). The objects of the Criminal Code in s 105A.1 require the Court to ensure the safety and protection of the community. I have found that the safety of the community is threatened by refusing to make a continuing detention order. The considerations under s 105A.8(1)(a) and the purpose of the Division (s 105A.1) have a real significance in this matter.

484. Mr Pender submitted that there is a risk that further detention could be counter-productive to his rehabilitation.

485. It may be accepted, as Dr Dewson stated, that a further period of detention will not cure Mr Pender’s condition.

486. There is a possibility Mr Pender may suffer fatigue and affect his attitude to various medication compliance or therapy or ESP. Pro-social engagements may be less likely in custody.

487. However, Dr Spencer deposed that, in February this year, Mr Pender began engaging with the PRISM, a rehabilitative program administered by Countering Violent Extremism Programs in Corrective Services NSW: Spencer Affidavit, [19]. If a continuing detention order were made, it is anticipated that Mr Pender would be accommodated in the Hamden Mental Health Step-Down Unit, where he can continue to access intensive treatment for his mental health needs as well as continue his involvement with PRISM, should he so choose: Spencer Affidavit, [7.2.3], [11], [18], [21].

488. While the services in the Hamden Mental Health Step-Down Unit are not ordinarily available on a long-term basis, Mr Pender has been accommodated there exceptionally, having regard to his complex mental health needs: Spencer Affidavit, [13]. It is my expectation that such a program will continue.

489. Further, the programs and treatment presently available to Mr Pender have been successful in bringing his mental health condition substantially under control.

490. Overall, I do not consider that the Court may properly conclude that the effects of a CDO would be so deleterious to Mr Pender over that time to warrant his release from custody at this time.

491. To the contrary, the programs and treatment presently available to Mr Pender have been successful in bringing his mental health condition substantially under control in custody. There is every reason to think that they will continue to be successful in that regard if Mr Pender continues to be detained.

492. In any event, the focus of the Division is not on the rehabilitation but the safety of the community.

493. As to duration, the plaintiff sought a CDO for 3 years although accepted that the Court may in its discretion determine a shorter period.

494. The experts do not opine upon an appropriate duration for a CDO if one were to be made. There was no other evidence directly on that question. The Control order will operate upon the cessation of the CDO.

495. The plaintiff properly accepted that it was not possible to speculate on the level of risk Mr Pender will pose “after 1, 2, or 3 years in custody” and that “his circumstances may change over time”.

496. Mr Pender has made substantial progress in custody. That stabilisation process is ongoing. It may be hoped his mental state continues to improve as does the remission of his substance abuse disorder. In my view, given that progress, and the potential for further treatment in the short term, the duration for the order should be for a shorter duration to provide the first available opportunity to Mr Pender to demonstrate his overall conditions (and associated risk) have continued to improve to a point warranting a release under a Control Order which may or may not have control orders which match those presently operating under interim orders. Further, by then a hearing as to the Control order will have taken place, perhaps under a new Commonwealth legislative regime.

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Amendments

06 April 2022 - Minor typo amended at [448]

Decision last updated: 08 April 2022