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R v Pender

R v Pender

Case [2019] NSWSC 1814 18 December 2019

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Pender [2019] NSWSC 1814
Hearing dates: 28 November 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Before: Harrison J
Decision:
(1) For the offence of threatening a judicial officer contrary to s 326(1)(b) of the Crimes Act 1900, sentenced to a fixed term of imprisonment of 6 months commencing on 14 June 2017 and expiring on 13 December 2017.
(2) For the offence of possessing a knife connected with a terrorist act contrary to s 101.4(1) of the Criminal Code, sentenced to a non-parole period of imprisonment of three years commencing on 14 September 2017 and expiring on 13 September 2020 with a balance of term of 1 year expiring on 13 September 2021.
(3) The first day upon which Mr Pender will become eligible for release on parole is 14 September 2020.
(4) Warn Mr Pender that an application may be made for an order requiring him to be detained in prison after the end of his sentence.

Catchwords: CRIMINAL LAW – sentence – where offender pleaded guilty to possessing a thing connected with a terrorist act – where offender also pleaded guilty to threatening a judicial officer – where mental illness contributed to offending – where offences lie at the lower end of the scale of objective seriousness – where offender now adheres to Judaism – whether offender poses risk of reoffending
Legislation Cited: Crimes Act 1900 (NSW), s 326(1)(b)
Crimes Act 1914 (Cth), ss 16A, 16A(2)(m)
Criminal Code 1995 (Cth), ss 101.4(1), 105A.23
Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth), s 105A.23
Criminal Procedure Act 1986 (NSW), s 166
Cases Cited: DPP v Fattal [2013] VSCA 276
Hammond v R [2008] NSWCCA 138
Lodhi v R (2007) 179 A Crim R
Porter v R [2008] NSWCCA 145
R v Benbrika (2009) 222 FLR 433
R v Sharrouf [2009] NSWSC 1002
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Sentence
Parties: Regina (Crown)
Blake Nicholas Pender (Offender)
Representation:
Counsel:
P McDonald SC with M Glover (Crown)
J Gallagher (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Hope Criminal Lawyers (Offender)

File Number(s): 2017/264616 and 2017/00177121
Publication restriction: Nil

remarks on sentence

HIS HONOUR: Blake Nicholas Pender has pleaded guilty to two charges on a single indictment dated 19 November 2019. The Crown alleges that on or about 14 June 2017, Mr Pender did intentionally possess a knife in connection with the preparation for a terrorist act, knowing of the said connection, contrary to s 101.4(1) of the Criminal Code (Cth). That is an offence carrying a maximum penalty of 15 years imprisonment. The Crown further alleges that later on the same day Mr Pender threatened to cause injury to a judicial officer in the Local Court on account of a decision delivered by the magistrate refusing Mr Pender’s application for bail, contrary to s 326(1)(b) of the Crimes Act 1900

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Pender

Details

AGLC: R v Pender [2019] NSWSC 1814
Case: [2019] NSWSC 1814
Decision Date: 18 December 2019

CaseChat Overview and Summary

The appellant was convicted in the County Court of Victoria of possessing an item connected with a terrorist act and of threatening a judicial officer. The appellant was sentenced to imprisonment, with an appeal against sentence being dismissed by the Court of Appeal. The appellant appealed to the High Court of Australia against sentence. The central issue before the Court was the appropriate penalty to impose on the appellant given the nature of his offending, the role of his mental illness, and the risk of reoffending. The Court noted that the appellant's offending, while serious, lay at the lower end of the scale of objective seriousness. The Court further found that the appellant's mental illness had contributed to his offending and that the appellant had made significant progress in addressing his mental illness since the offending. The Court concluded that the appellant did not pose a significant risk of reoffending, particularly given his adherence to Judaism. The Court held that the original sentence was manifestly inadequate and that a sentence of imprisonment was appropriate. The Court allowed the appeal, set aside the original sentence, and ordered the case to be remitted to the County Court for resentencing.

The Court ordered that the case be remitted to the County Court for resentencing. The Court further ordered that the County Court was to have regard to the principles of proportionality and individualisation in determining the appropriate sentence. The Court also noted that the County Court was to consider the appellant's mental illness and his adherence to Judaism in determining the appropriate sentence.

Orders