Attorney-General of the Commonwealth of Australia v Pender

1. [1]

   By summons filed 29 February 2024, the Attorney-General of the Commonwealth of Australia (the plaintiff) seeks a review under s 105A.10(1A) of the Criminal Code Act 1995 (Cth) (the Code), of the extended supervision order (ESO) imposed on Blake Pender (the defendant) by N Adams J on 21 December 2022: Attorney-General of the Commonwealth of Australia v Pender (Final) [2022] NSWSC 1773. The summons seeks a variation of the ESO pursuant to s 105A.12A(2) of the Code in accordance with the plaintiff’s proposed conditions; an affirmation of the ESO otherwise, pursuant to s 105A.12(4)(b) of the Code; and certain protective orders restricting access to the Court file to non-parties absent leave of the Court and preventing disclosure of certain documents.

2. [2]

   The defendant accepts that the plaintiff’s application was made within time under s 105A.10 of the Code and takes no issue with the substance and term of the ESO made by N Adams J on 21 December 2022, except in relation to scheduling conditions, which the defendant contends are neither reasonably necessary nor reasonably appropriate and adapted to protect the community against the risk of a serious Pt 5.3 offence under the Code.

Background

1. [3]

   The summons was accompanied by a statement of agreed facts, dated 23 May 2024 (the agreed facts), which incorporates, so far as is relevant, material in the plaintiff’s possession that it is required to disclose pursuant to s 105A.12(6A) of the Code. It is to the following effect.

2. [4]

   On 18 December 2019, the defendant was sentenced to, among other offences, a terrorism offence under Pt 5.3 of the Code, specifically, intentionally possessing a knife in connection with the preparation for a terrorist act, knowing of the said connection, contrary to s 101.4(1) of the Code: R v Pender [2019] NSWSC 1814. As a result of his terrorism conviction, he fell within the scope of Div 105A of the Code, the object of which is to protect the community from serious Pt 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to either continuing detention orders (CDOs), or ESOs.

3. [5]

   On 9 November 2021, following two interim detention orders, Walton J ordered that the defendant be subject to a CDO for a period of 12 months, expiring on 13 September 2022: Minister for Home Affairs v Pender [2021] NSWSC 1644. On 28 January 2022, the defendant sought a review of the CDO, however, discontinued those proceedings after being charged with affray under s 93C(1) of the Crimes Act 1900 (NSW) following an incident involving a fellow inmate. He ultimately pleaded guilty to assault occasioning actual bodily harm in company (the affray charge was withdrawn); and received a fixed term of 6 months imprisonment to date from 19 April 2022 to 18 October 2022.

4. [6]

   On 7 October 2022, Lonergan J made an interim supervision order (ISO) in respect of the defendant, pursuant to s 105A.9A(4) of the Code, for a period of 28 days commencing on 10 October 2022: Attorney-General (Cth) v Pender (Preliminary) [2022] NSWSC 1360. He was released from custody on 18 October 2022. On 1 November 2022, the Court ordered, by consent, that the defendant be subject to a further ISO, in the same terms, for a period of 28 days commencing on 7 November 2022.

5. [7]

   On 7 November 2022, the defendant was charged with offences contrary to s 105A.18A of the Code for contravening conditions of the first ISO imposed by Lonergan J. On 21 December 2022, while he was bail refused on the breach of ISO charges, N Adams J made an ESO in respect of the defendant for a period of three years, commencing on that date.

6. [8]

   Following negotiations with the Commonwealth Director of Public Prosecutions, the defendant pleaded guilty to the breaches of the ISO. On 20 November 2023, he was sentenced to an aggregate term of imprisonment of 22 months, backdated to commence on 7 November 2022 and to expire on 6 September 2024. On 14 June 2024, he was refused parole and will not be considered again before the expiration of that sentence.

7. [9]

   On 18 January 2024, following an incident in custody on 20 December 2023, the defendant was charged with common assault. On 19 March 2024, he was sentenced to a term of imprisonment for six months, backdated to commence on 20 December 2023, and expiring on 19 June 2024.

8. [10]

   The agreed facts also described, in considerable detail, the defendant’s time in custody prior to release into community; his time in the community while subject to the ISO by Lonergan J; breaches of that ISO; his time in custody since those breaches; his visitation and communications; matters relating to his accommodation, rehabilitation and community support; and his interest in various religions. The following is a summary of notable matters relevant to this review arising from that discussion.

9. [11]

   The defendant’s primary diagnoses have been schizophrenia with co-morbid diagnoses of substance use disorders (involving cannabis, stimulants, opioids, inhalants and hallucinogens); borderline personality disorder, antisocial personality disorder, attention deficit hyperactivity disorder (ADHD) and a cognitive impairment.

10. [12]

    While the defendant was generally accepting of his ISO conditions as fair and appropriate, understanding their importance as a ‘safety net’ that would provide him with discipline and order, he expressed some frustration with them. He often experienced difficulty complying with his weekly plan of his proposed movements in advance of each week (his schedule), which was attributed to his ADHD and noted to friends, family and carers that he felt ‘trapped’, and that there was ‘nothing to do’ in the community.

11. [13]

    On 7 November 2022, the defendant was arrested for alleged contraventions of the ISO, each relating to his use of technology. These were: deleting browser search and watch histories from his permitted mobile phone; recording and sending multimedia messages of himself rapping violent lyrics; asking to be recorded while freestyle rapping and for the recording to be uploaded to social media; downloading, installing and accessing applications on his permitted mobile phone without prior approval; and opening a vocal studio recording application and creating an account. None of the alleged contraventions involved conduct related to terrorism or religious extremism, or behaviours of concern such as drug taking. He pleaded guilty to the charges at the earliest available opportunity.

12. [14]

    A week before his arrest, on 29 October 2022, the defendant asked his neighbour to purchase tobacco for him in the event he was arrested, so that he would have “a pack to take back to jail”. He later told his neighbour that in order to smuggle the tobacco into prison, he would require a condom. The following morning, the defendant requested that his carer purchase condoms for him, explaining that he would need them ‘eventually’. On 7 November 2022, when arrested, the defendant informed police officers that he had secreted a foreign object internally. A condom that contained tobacco was surgically removed. That incident was not the subject of a charge.

13. [15]

    On the sentence proceedings for those offences, a number of expert reports and statements from the defendant’s support workers in the community were tendered. One was a report dated 8 November 2022 prepared by Dr Andrew Ellis, a forensic psychiatrist who had prepared a number of previous reports in relation to the defendant. Dr Ellis opined that at the time of the offending, the defendant was receiving sub-optimal treatment for his schizophrenia. He was also experiencing mild cognitive impairment, mild thought disorder, periodic hallucinations and delusions, in the context of significant adjustment, ostensibly from being in custody to being in community, and strict expectations of his behaviour. Dr Ellis considered that the defendant’s wrongdoing likely related to his general boredom, impulsivity and need to connect with social supports, rather than from any extremist ideation. The sentencing judge took into account Dr Ellis’ report, holding that the defendant’s moral culpability was reduced by factors that included his mental health, his dysfunctional upbringing and the circumstances of the offending, which reflected his difficulties in adjusting to living in the community under a supervision order.

14. [16]

    A supplementary statement of agreed facts (the supplementary agreed facts), signed on the date of the hearing, was tendered at the hearing of the review application, which provided further detail as to the defendant’s time in custody since he breached the ISO; his visitation and communications; his finances, rehabilitation and community support; and his interest in various religions. Amongst other matters, it referred to a Forensic Community Treatment Order (FCTO) made by the Mental Health Review Tribunal (MHRT) on 25 January 2024. A copy of the FCTO was forwarded to the Court following the hearing.

15. [17]

    Two reports prepared by Dr Chelsey Dewson, forensic psychologist, were tendered into evidence on the question of the defendant’s level of risk of committing a criminal offence, in particular, a terrorist offence. The first report, dated 8 November 2023, was prepared following a one-and-a-half-hour interview with the defendant. A supplementary report, dated 17 June 2024, was prepared based on a brief of further material. Dr Dewson had previously assessed the defendant for the purposes of the CDO proceedings before Walton J and given evidence at that hearing.

16. [18]

    In her first report, Dr Dewson assessed the defendant’s risk against the Level of Service/Case Management Inventory (LS/CMI); the Violence Risk Scale (VRS); and the Violent Extremism Risk Assessment – Version 2 Revised (VERA-2R) tools. As to general offending risk, the defendant was assessed at a very high risk of reoffending against the LS/CMI tool. As to violent risk assessment, he was assessed as being at high risk of committing a violent offence against the VRS tool. Dr Dewson said, as to the defendant’s violent extremist risk profile:

17. [19]

    Dr Dewson summarised her findings as follows:

18. [20]

    In her supplementary report, Dr Dewson noted the facts of the common assault offence that was committed on 20 December 2023, the defendant’s progress in the mental health transition unit at the Metropolitan Remand and Reception Centre (the MRRC) and his progress more generally since her initial report. She concluded that his risk profile pertaining to violent extremism, having regard to the new evidence, including his additional conviction for violence, was unchanged.

19. [21]

    The plaintiff tendered reports that it had relied upon at the hearing before N Adams J, by Dr Dewson dated 14 November 2022 and by forensic psychiatrists Dr Kerri Eagle (6 August 2022) and Dr Ellis (11 November 2022).

20. [22]

    Read at the hearing were three affidavits of John Banton, who is the High Risk Offender Applications and Operational Governance Officer at Corrective Services. The first affidavit in time, dated 4 June 2024 (the first affidavit), proposed conditions of the ESO and canvassed the defendant’s risk factors and support services in the community. The second affidavit in time, dated 9 August 2024, provided updated information about the availability of accommodation and support services for the defendant in the community upon release (the second affidavit). The most recent affidavit, dated 12 August 2024 (the third affidavit), confirmed the arrangements that are in place for the defendant. An affidavit by an Australian Federal Police officer that supported the proposed ESO conditions was read. In addition, two confidential affidavits, relied upon by the plaintiff, were read by me.

21. [23]

    The defendant relied upon a report dated 15 September 2023 by a clinical neuropsychologist who is attached to Statewide Disability Services in Corrective Services NSW (CSNSW), Joshua Barber, and a letter from the defendant’s specialist support coordinator, Joshua Thompson, who will assist him with arranging mainstream and National Disability Insurance Scheme (NDIS) services. Both were annexed to an affidavit by the defendant’s solicitor.

Legislative Scheme

1. [24]

   Section 105A.10 of the Code provides:

2. [25]

   Section 105A.18C(2) of the Code relevantly provides:

3. [26]

   In essence, s 105A.10 of the Code obliges the plaintiff to periodically seek a review of a ‘post-sentence order’ [1] that is in force in relation to a terrorist offender. Ordinarily, the application for review must be brought either within 12 months of the order coming into force or within 12 months of the most recent review: s 105A.10(1B)(a), (b) of the Code. However, if the CDO or ESO is suspended because the defendant is detained in custody in a prison, the application for review must be sought on or before the day the offender’s detention in a prison ends: s 105A.10(1B)(c) of the Code. In the circumstances of this case, s 105A.10(1B)(c) applies, so that the application for review must occur before 6 September 2024, that is, the date on which the defendant’s sentence in relation to the breaches of the ISO will expire.

4. [27]

   Section 105A.12A(4)(b) of the Code sets out the process for review of an ESO:

5. [28]

   Section 105A.7A of the Code sets out the conjunctive conditions, which, if satisfied, provide the Court with the power to make an extended supervision order. In particular, s 105A.7A(1)(b) provides that the Court can only make an ESO if:

6. [29]

   Section 105A.7A(1)(c) also requires the Court to be satisfied on the balance of probabilities that each of the conditions, and the combined effect of all of the conditions, to be imposed on the offender by the order are “reasonably necessary, and reasonably appropriate and adapted” for the purpose of protecting the community from that unacceptable risk. However, as noted above, the Court can affirm an ESO “disregarding” s 105A.7A(1)(c).

7. [30]

   The meaning of “adapted” in the context of s 105A.7A is not immediately apparent. In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 the meaning of “reasonably appropriate and adapted”, as that phrase appears in s 104.4(1) of the Code, was considered in the joint judgment of Gummow and Crennan JJ at [102]-[103]:

8. [31]

   I proceed on the basis that, by that term, the court is to consider whether the proposed conditions, in the words of the judgment in McCulloch, are appropriate means to the desired end of the object of the legislative scheme as expressed in s 105A.1 of the Code, namely, of protecting the community from the unacceptable risk of the defendant committing a serious Pt 5.3 offence. In so doing, I note that it adds little to the immediately preceding qualifiers of the conditions being “reasonably necessary and reasonably appropriate”.

9. [32]

   The matters under s 105A.6B, referred to in those sections, are as follows:

10. [33]

    The Court also has the power to vary the ESO if it decides to affirm it on review: s 105A.12A of the Code. In particular, the Court must vary or remove a condition if not satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Pt 5.3 offence: s 105A.12A(2) of the Code. If a condition is varied, the Court must be satisfied that the varied condition is reasonably necessary, and reasonably appropriate and adapted for that purpose: s 105A.12(3) of the Code. The Court may also vary an ESO to add one or more conditions if satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted for that purpose: s 105A.12(4) of the Code.

11. [34]

    For the purposes of s 105A.12A(3) and (4), in determining whether a condition to be varied or imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a “paramount consideration” in all cases, the object of the Division: s 105A.12A(5) of the Code. That object is to protect the community from serious Pt 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject either to a CDO or an ESO: s 105A.1 of the Code.

The issue in dispute

1. [35]

   There is only one issue in dispute between the parties, namely, whether the defendant should be subject to the current scheduling conditions. Otherwise, the defendant does not dispute the necessity and appropriateness of the current conditions. Accordingly, the parties’ submissions were confined to that issue.

2. [36]

   Dr Dewson, in her report dated 14 November 2022, observed that although defendants who are subject to an ISO or ESO typically struggle with scheduling conditions, such conditions have been, and are likely to continue to be, even more challenging for the defendant, in view of his mental health diagnoses. Mr Barber, in his report, canvassed those diagnoses and their behavioural challenges:

3. [37]

   The defendant was present at the hearing of this matter via audio video link from his custodial location. I observed him to be constantly moving in his seat or standing, apparently unable to keep still; in short, behaving in a manner that was consistent with the treating psychologist’s observations.

4. [38]

   The significance of this issue to the success or otherwise of the defendant’s prospective release is highlighted in two entries in the agreed facts. On 21 October 2022, while the defendant was in the community subject to the ISO, various stakeholders in his support team met to discuss “teething issues” that had occurred post release. The relevant entry continued:

5. [39]

   A further passage in the agreed facts that deals with this issue is as follows.

6. [40]

   Mr Banton, in his first affidavit, noted that the defendant had previously deviated from his schedule and that he had expressed difficulty understanding and complying with the schedule. He added:

7. [41]

   Mr Banton outlined those steps as follows. A “behavioural support practitioner”, assisted by Community Corrections staff, would “deliver training” to the defendant’s carers so that they could assist the defendant to comply with the schedule and other ESO conditions. His carers will be requested to print off a large copy of the schedule and place it in a prominent position so that it is visible to the defendant and staff, and encourage the defendant to keep a copy on his mobile phone. Mr Banton said that the carers would be given assistance to produce simplified schedules and that AFP officers would scope suitable locations near the defendant’s proposed place of residence that could be included in his schedule.

8. [42]

   In his third affidavit, Mr Banton stated that he had been informed by the Community Corrections ESO team that the staff at the proposed residence are familiar with ESOs and how they can be managed. He also stated that staff at the proposed residence and other stakeholders would be assisted by Community Corrections staff, in particular, psychologists who have previously worked with the defendant to understand the defendant’s obligations and offer guidance in successfully managing his diagnosed conditions and behaviour.

9. [43]

   Mr Banton also gave evidence concerning the scheduling process. He said that each Monday, the Community Corrections Officer assigned to oversee the defendant would liaise with the defendant by phone and produce a draft schedule for the 7-day period commencing that Wednesday. The draft would then be sent to the AFP, and the following morning, being the Tuesday, to a “stakeholders” meeting. Thereafter, the draft schedule would be forwarded to a senior managers’ meeting, where it would be approved. It would be entered into the electronic monitoring system that night.

10. [44]

    Mr Banton said that the Tuesday morning stakeholders’ meeting would be attended by a Community Corrections psychologist, who had been “working with” the defendant “for a number of years” and who would “give guidance to the case managers”. He said that the same psychologist would be available to work with the defendant, so that there was continuity of health care personnel. He expected that the psychologist would contact the defendant once per week for a period of 12 weeks following his release. Thereafter, if the defendant wished to have the benefit of psychological counselling, it could be arranged with another Community Corrections psychologist.

11. [45]

    Mr Banton said the defendant would not be provided with the assistance of a psychologist to assist him in understanding and complying with the conditions of an ESO. However, he confirmed that Community Corrections did have those human resources and that, if recommended, an appropriate disability specialist would be made available to assist the defendant to comprehend and comply with those conditions, in view of his diagnosis of ADHD.

12. [46]

    In her report dated 14 November 2022, Dr Dewson said, referring to the difficulties that the defendant is likely to have in confirming to scheduling obligations:

13. [47]

    Mr Barber said, as to the purpose of his report dated September 2023:

14. [48]

    Mr Barber proposed steps that should be taken by the defendant’s support staff that would enhance the defendant’s ability to comply with ESO conditions:

15. [49]

    The scheduling conditions proposed by the plaintiff would oblige the defendant to provide and seek approval of his schedule three days before it is to start, or at such other time as required by a Community Corrections officer. As to deviations from the schedule, the conditions include the following:

16. [50]

    The plaintiff amended the condition by adding the words in italics in light of the defendant’s concerns as to the schedule, as were apparent from his pre-hearing submissions, in order to introduce a greater degree of flexibility.

17. [51]

    The parties’ submissions are succinct. The plaintiff adopts the opinion of Dr Dewson, which was that, although scheduling conditions are particularly challenging for the defendant, they are nevertheless a necessary measure in view of the level of risk that he presents with respect to the commission of a Pt 5.3 offence.

18. [52]

    The defendant does not oppose a scheduling condition per se. He accepts that there is a therapeutic benefit to scheduling; that providing structure in his life is an important part of the transition from custody into the community. The critical issue is the threat of criminalisation of an inadvertent breach.

Consideration

1. [53]

   In view of the defendant’s cognitive and mental health diagnoses, any restraints on his freedom, stringent or otherwise, will be challenging for him and not necessarily reflective of a deterioration of a worsening of his level of risk of committing a Pt 5.3 offence. It is noteworthy that none of his breaches of the ISO was of the scheduling conditions, which were in similar terms to what was initially proposed by the plaintiff. I do not mean to minimise, by that observation, the challenge that compliance with the scheduling conditions posed for the defendant.

2. [54]

   I accept the defendant’s submission that some latitude is appropriate in relation to his scheduling conditions, but not to the extent, at least initially, that he would be relieved from obtaining the authorities’ approval for where he intends to go, by which means of travel and at what time, in reasonable detail. The ISO breaches involving the deletion of files, searches and watch histories, and the composing, recording and uploading of videos of him expressing a desire to perpetrate acts of extreme violence, mitigate against any immediate relaxing of scheduling conditions. The defendant must demonstrate that he can be trusted to move peacefully in the community, and behave consistently with ESO obligations, before those conditions are relaxed. I have given careful consideration to the proposition that there be a form of sunset clause to the scheduling conditions with a view to a review after a set period of time, but it is not possible to predict when the defendant might achieve the necessary degree of demonstrated compliance to justify such a relaxation. In this defendant’s case, that is better left to those with on-going responsibility for his compliance with the ESO.

3. [55]

   I have re-drafted the scheduling conditions in slightly less legal and conceptual language to facilitate the defendant’s comprehension and retention of them, and by providing additional examples of reasons that he might wish to amend his schedule and that would be acceptable for a retrospective modification.

4. [56]

   In particular, I have added condition 3.5.1, which is addressed to the Community Corrections officer as much as to the defendant. It obliges them to take into account the defendant’s mental condition in determining whether his failure, or even repeated failures, to comply with the scheduling conditions warrants a breach of the relevant statutory provision (s 105A.18A(1)(c) of the Code). I have little doubt that Community Corrections exercises its discretion in this regard anyway, but it is just as well to formally require it with a person such as the defendant, who through no fault of his own is burdened by his ADHD and psychiatric and other cognitive diagnoses.

5. [57]

   The scheduling conditions will be as follows.

6. [58]

   Based on the material tendered on the application, in particular the forensic reports, I am of the view that the defendant is not capable of comprehending and complying with the ESO conditions without the professional ongoing assistance of a psychologist. The defendant’s diagnoses make him a challenging subject for a successful transition to the community. It is in the interests of the defendant and the safety of the community that he understands his obligations under the ESO and is assisted to comply with them. Accordingly, I will recommend that Community Corrections make available to the defendant the on-going services of a psychologist, preferably someone with whom he already has a positive therapeutic relationship, to assist him in comprehending, and developing strategies for his better compliance with, the conditions of the ESO, at least for the first 6 months.

7. [59]

   For the sake of completeness, I note that on the date of the hearing (13 August 2024) I made orders prohibiting publication of certain matters and material, including the town or suburb in which it is proposed the defendant will reside upon his release to the community or the anticipated date of his release.

Orders

1. [60]

   I make the following orders:

Recommendation

1. [61]

   I recommend that Community Corrections make available to the defendant the ongoing services of a psychologist, preferably one with whom he already has a sound therapeutic relationship, to assist him in comprehending, and developing strategies for his better compliance with, the conditions of the ESO, at least for the first 6 months of the ESO.