Minister for Home Affairs v Pender

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Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Minister for Home Affairs v Pender [2021] NSWSC 1644
Hearing dates: 13, 14, 15 and 19 October 2021
Date of orders: 9 November 2021
Decision date: 15 December 2021
Jurisdiction:Common Law
Before: Walton J
Decision:

(1) Pursuant to s 105A.7(1) of the Criminal Code the defendant be subject to a continuing detention order.

(2)   The continuing detention order be in force for a period of one year from 13 September 2021.

Catchwords:

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

Legislation Cited:

Australian Federal Police Act 1979 (Cth)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code 1995 (Cth)

Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth)

Evidence Act 1995 (NSW)

Judiciary Act 1903 (Cth)

Mental Health Act 2007 (NSW)

Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Athavle v New South Wales [2021] FCA 1075

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1

Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321

Booth v Dacre [2020] FCA 751

Booth v Granata [2020] FCA 668

Booth v Kadir Kaya [2020] FCA 764

Booth v Murat Kaya (No 2) [2020] FCA 1119

Booth v Naizmand [2020] FCA 244

Booth v Thorne No 2 [2020] FCA 1196

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Lynn v New South Wales (2016) 91 NSWLR 636

Minister for Home AffairsvBenbrika [2020] VSC 888

Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921

Nigro v Secretary to the Department of Justice (2013) 41 VR 359

R v Pender [2019] NSWSC 1814

Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820

State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367

State of New South Wales v Ceissman(No2) [2018] NSW SC 1237

State of New South Wales v Currie(Final) [2021] NSWSC 676

State of New South Wales v Donovan (2015) 90 NSWLR 389; (2015) NSWCA 380

State of New South Wales v Ibrahim (Final) [2021] NSWSC 793

State of New South Wales v Rigby (Final) [2021] NSWSC 472

State…

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Details
Case
[2021] NSWSC 1644
Decision Date

CaseChat Overview and Summary

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

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

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

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