Attorney General of the Commonwealth of Australia v Pender

Chronology - Statement of Agreed Facts

1. The information below regarding Mr Pender's background is taken from the statement of agreed facts filed in these proceedings.

Childhood and adolescence

1. Mr Pender was born to Ms Wendy Smith and Mr Thomas Pender on 1 May 1991, in Nowra, NSW. Ms Smith and Mr Thomas Pender were separated before Mr Pender was born. Mr Pender attributes the separation to acts of domestic violence perpetrated by his father against his mother.
2. Mr Pender was raised with his older brother and two younger half-siblings by his mother and his stepfather, Mr Steven Wright. For much of his youth, Mr Pender believed Mr Wright was his biological father. Mr Pender's mother had a history of alcohol and drug abuse, and he was known to the Department of Community Services (now known as the Department of Families and Community Services ("FACS")) at a young age. Mr Pender has reported that his mother had a history of bipolar disorder, suicidal tendencies, epilepsy and abused alcohol and amphetamines. Despite this, he also described that his relationship with her was a loving and caring one.
3. At about the age of 12, Mr Pender was introduced to his biological father and shortly after that, he moved in with him. Mr Pender's father has a history of violence, criminality, and alcohol and drug abuse. Mr Pender alleged his father sexually abused him, threatened to kill his mother if he reported the abuse, and engaged in drug use in his presence. Mr Pender also told FACS that his father and his father's girlfriend engaged in illicit drug use in his presence. Mr Pender was known to FACS and in about 2004, at about age 12, Mr Pender became a ward of the State.
4. Throughout his youth, Mr Pender changed schools frequently. He attended three different high schools, and in total attended five or eight different primary schools. Mr Pender completed year 10. Mr Pender's school changes were due to his behavioural problems; he was often suspended multiple times over short and extended periods of schooling, at times missing up to a month of attendance. He was expelled on two occasions.
5. Mr Pender was homeless at various times from about when he was 13 years old. From this age Mr Pender moved between foster carers, and support accommodation, usually staying at each for a few months before being moved to another. At the age of 15, he had his longest placement, which lasted approximately a year and a half. This was in an intensive supported accommodation program. During this period, he was described as explosive, impulsive, and socially inappropriate but had some periods of being well behaved.
6. In his adolescence and the following years, Mr Pender moved between multiple placements in crisis refuges across Sydney, including at Surry Hills, Sutherland, Bondi, and Bankstown. These placements broke down variously due to Mr Pender's intoxication, aggression, verbal intimidation, and physical abuse of others.
7. In late 2008, when Mr Pender was approximately 17 years old, he moved in with a foster family; Pauline and Peter Trama, and their son Brandon Trama. The Tramas were involved in an organisation called Oasis Refuge in Sydney, which was a youth refuge for troubled teenagers. Mr Pender first moved in with the Tramas when they lived at the Binacrombi Dirt Bike Park in Jerrong, in NSW. He lived with the Trama family on a permanent basis for about four to five years between 2008 until approximately 2015.
8. Mr Pender worked at a convenience store when he was approximately 16 years old for a short period and undertook some general duties at the Binacrombi Dirt Bike Park whilst living with the Trama family but that is the only employment he has ever had. His primary source of income has been through drug dealing in order to financially support his own drug use.

Mental health and substance abuse

1. Mr Pender has suffered mental health problems in several forms since his childhood in addition to substance abuse issues.
2. He commenced consuming alcohol at the age of 10. He was first exposed to drugs at the age of 12 when he observed his father smoking cannabis and using intravenous methamphetamines. He started using cannabis, heroin and occasionally crystal methamphetamine ("ice") at the age of about 15 years old. He claimed that he inhaled butane or deodorant spray between the ages of 13 and 14.
3. A paediatrician diagnosed Mr Pender with ADHD at the age of 12 and he was prescribed medication to treat this. However, when he was 17, notes from Dr Ricardo Farago show Mr Pender did not have ADHD. Instead of dexamphetamine, he was prescribed an anti-depressant, Fluoxetine. It was also noted by Dr Farago that Mr Pender had borderline personality disorder and the maturity of a 10-year-old, despite being 17 years of age.
4. On 12 August 2008, a psychiatrist, Dr Nunn, saw Mr Pender, who noted that Mr Pender had a history of aggression, alcohol dependence and substance abuse, but at that time saw no evidence of depression, psychosis or other mood disorders
5. Mr Pender was diagnosed with schizophrenia when he was 19 years old. At various times throughout his life, he has reported a history of paranoia, auditory and visual disturbances, referential delusions and grandiosity, increasing in severity since he was 15 years of age. At this time, following extensive abuse of substances including cannabis, ecstasy, and alcohol Mr Pender started experiencing auditory hallucinations.
6. At the age of 18, Mr Pender attended the William Booth Drug and Alcohol Rehabilitation Program for approximately three months. Mr Pender was asked to leave the program after he was caught with a knife.
7. On 4 June 2010, a clinical nurse consultant assessed Mr Pender at the Camperdown Community Health Centre. A Shopfront Youth Legal Centre social worker had referred Mr Pender for assessment. It was noted during that assessment that Mr Pender reported instances of self-harm, paranoia and psychotic symptoms including a history of auditory hallucinations in the context of cannabis intoxication; an attempted suicide in mid 2008; sleeping with a meat cleaver under his bed; and a history of psychotic symptoms when intoxicated.
8. In the same year, Mr Pender was admitted to hospital following deterioration of his mental condition and as a result of his cannabis and methamphetamine use. During a mental health assessment undertaken that year, Mr Pender claimed to have auditory hallucinations in the form of the Devil telling him to kill his father.
9. Mr Pender's risk of self-harm, continued auditory hallucinations and substantial substance use persisted in the following years. In 2010, following a series of offences, Mr Pender underwent an assessment conducted by NSW Health on 28 December 2010. It was noted during this assessment that Mr Pender reported the voice of the Devil telling him to kill himself and other voices telling him to kill. It was noted Mr Pender was impulsive and it was possible his offending was drug induced.
10. On 15 March 2011, while in custody, Mr Pender was subject to a further mental health assessment. He reported, amongst other things, that he has angry and homicidal thoughts when he drinks or takes drugs and that, at times, he cannot control his anger and feels like hurting people. It was recorded that Mr Pender has a borderline personality disorder.
11. On 26 July 2011, Dr Olav Nielssen prepared a psychiatric report of Mr Pender. He had interviewed Mr Pender several times previously. At this point in time, Dr Nielssen noted that although Mr Pender had schizophrenia, he was not presently being treated for it and had been placed in a relatively remote location (a rehabilitation centre), where he was able to manage himself despite the lack of treatment and persisting symptoms of schizophrenia. Dr Nielssen started Mr Pender on anti-psychotic medications and concluded that Mr Pender was in remission for substance abuse disorder.
12. On 26 November 2012, Mr Pender was assessed by Dr Nielssen again, who wrote a report in relation to Mr Pender's mental health and substance abuse. The report was prepared in response to a series of offences committed at Binacrombi Dirt Bike Park. Dr Nielssen recommended that Mr Pender's charges be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Dr Nielssen diagnosed Mr Pender with schizophrenia (rather than a transient substance-induced psychotic state) and substance abuse disorder noting his documented history of repeated admissions to psychiatric hospitals, history of alcohol abuse and illicit drug use, and history of criminal charges arising from behaviour whilst affected by drugs and alcohol.
13. As stated above, a number of recent expert reports have been prepared by Drs Ellis, Dewson and Eagle in relation to Mr Pender's mental health assessment and risk factors. I shall consider them further below in the context of the evidence they gave before Walton J and their recent reports ordered by Lonergan J when she placed him on an ISO on October 2022.

Religious conversions

1. Mr Pender reported that he was christened Catholic but did not attend church or have any interest in religion until he was 14 years of age. He has given varying accounts of his interest in and conversion to Islam and it is not clear when he converted to Islam. The Attorney submitted that Mr Pender's first conversion occurred when he was 16 or 17 years old, in about 2007 or 2008.
2. Mr Pender has stated that he first became interested in Islam when he was 16 years old whilst in a refuge in Wollongong. In interviews with psychologists, he stated that the process of conversion took him several years due to challenges with learning the prayers and Arabic. However, in some interviews, Mr Pender stated that he had only learned a small amount of Arabic and picked up phrases here and there. Mr Pender has also reported that his interest in Islam arose after working in a convenience store in Surry Hills. Mr Pender reports that he briefly worked at this store, which was opposite a Mosque, and was invited to the Mosque for prayers with two Jordanian colleagues. Mr Pender felt a sense of connection and started to attend Friday prayers every week.
3. Mr Pender has also reported that he converted to Islam when he was 16 years old after watching videos about Islam online. During a mental health screening interview, Mr Pender provided an overview of his religious history in which he stated that he was born a Christian, converted to Islam when he was 17, "left" the religion when he was 18, and then reconverted to Islam when he was 25.
4. Despite converting to Islam, Mr Pender continued to take drugs, drink alcohol and engage in sexual activities with girls. Mr Pender then lost interest in Islam and converted back to Catholicism around the age of 17. At this time, Mr Pender started researching Judaism in books and on Wikipedia but stated that it was "a very lengthy process to become a Jew". He said he lost interest in religion for several years as a result of his alcohol and drug abuse.
5. In 2014, when Mr Pender was aged 23, he was practising and preaching Christianity. Around this time, he was living with the Trama family in the Goulburn area. However, the Trama family were asked by FACS to support a mother and her infant, and Mr Pender was asked to leave on this basis. Mr Pender remained in Goulburn living with a friend for several weeks. It was around this time that Mr Pender had a Christian cross tattooed on his face, under his right eye. A few months after leaving the Trama family, Mr Pender travelled to Sydney and in about March 2015 Mr Pender again converted to Islam.
6. Mr Pender has reported that he attended a Mosque in Harris Park and that the Sheikh there (apparently Mr Adil Guntekin) detested extremism and looked after Mr Pender like a father. Mr Pender has described his beliefs at the time as being moderate.
7. After his second conversion, Mr Pender's views became increasingly extreme and culminated in the posting of a martyrdom video on Facebook which threatened the Australian Government. During this period, Mr Pender also made threats to members of the Trama family and in so doing, used language consistent with extremist Islamic ideology. During this time, he also attempted to spread his religious views to others, including members of the Trama family and Mr Cameron Birchall, a person Mr Pender met at a train station and attempted to "radicalise".
8. In May 2017, Mr Pender reported during a parole interview that he still identified as a Muslim. He claimed that he was not radicalised and was a "moderate" Muslim. He said that he "believes that religion is a good thing and the Koran is peaceful but so is Christianity".
9. One month later, in June 2017, he committed the terrorism offence and the threat offence (considered below at [74] to [81]). Whilst in custody, Mr Pender continued to practise Islam and on 3 January 2018 it was reported that Mr Pender was attempting to convert other inmates to Islam.
10. On about August 2019, Mr Pender decided that he no longer wanted to be a Muslim and reported that he had ceased practice. In October 2019, Mr Pender started to exhibit an interest in Judaism and requested a Torah. Mr Pender was provided with a copy of the Hebrew alphabet but was not provided with a copy of the Torah. Mr Pender was only provided with a copy of the Torah in about June 2020.
11. Mr Pender suggested that he was very interested in Yiddish, which is the language typically spoken by Ashkenazi Jews (central and eastern European Jews and their descendants). Mr Pender stated that he wanted to convert to Judaism because that was what he believed in. Mr Pender received threats from other inmates because of his conversion to Judaism.
12. To engage with his newfound Jewish faith, Mr Pender requested religious materials and expressed the wish to discuss the religion with a Jewish Chaplain. Mr Pender claimed that he had always been attracted to the Jewish faith and the fundamentals of the religion, especially the connectivity to others.
13. On 24 October 2019, Mr Pender received approval to receive a Book of Prayers and Gideon's Bible. On 30 December 2019, Mr Pender requested three Jewish Prayers, described as Shacharit, Minchah and Maariv. Mr Pender was provided with a three-page printout to read about the prayers.
14. On 24 January 2020, in a case review report whilst Mr Pender was held at the High Risk Management Correctional Centre in Goulburn, NSW, it was reported that Mr Pender had converted from Islam to Judaism and spent much of his time reading and memorising prayers. Mr Pender believed that becoming an Orthodox Jew was his calling in life. Mr Pender continued to engage with the Jewish faith in 2020, and when asked about his plans for employment after leaving prison, Mr Pender indicated that he would like to become a Rabbi if he converted to Judaism.
15. By July 2020, Mr Pender claimed that he had read over 300 pages of materials in relation to Judaism and stated that he had taught himself to read Hebrew. In around July 2020, Mr Pender also raised the prospect of converting to Buddhism.
16. Mr Pender continued to practice Judaism until around 8 December 2020. During an assessment whilst Mr Pender was held at the MRRC, he reported that he had converted back to Islam as he did not agree with some of the teachings of Judaism. He indicated that he was now practising Islam the right way. On 24 December 2020, during an interview with Corrective Service psychologist, Mr Pender admitted that he previously had some extremist Islamic views but claimed that he no longer held those views. Mr Pender stated that he wanted to help other inmates learn the Islamic faith by leading prayers. He denied having any "extremist views" and stated he would never want to cause harm to anyone.
17. Mr Pender's religious convictions became substantially less clear in the early part of 2021. On 3 March 2021, during an assessment whilst being held at the MRRC, Mr Pender reported that he had had an interest in religion his entire life. When questioned about his practicing the religion in the community and following Judaism and Christianity, he said he has just had a general interest in the religions but does also believe in parts of Islam which he said he wants to practice. Mr Pender denied ever being radical and did not understand how his actions could have been viewed as such. He also stated to a Community Corrections officer that his "religious views are all for protection" and commented that it was a sin for a Muslim to, "spill the blood," of another Muslim, which was reported to be why he said he identified with the religion in custody.
18. By the end of March 2021, Mr Pender was again studying materials in relation to Judaism and considering ways in which he could incorporate the religion into his future life. On 6 April 2021, during an interview conducted whilst Mr Pender was held at the MRRC, he reported that he had converted back to Judaism after realising that Islam no longer served his interests. He said that he wanted to lead a normal life with a job, family and being able to practice Judaism, acknowledging he would need to maintain his mental health treatment and address drug use to do this.
19. On 6 April 2021, Mr Pender told NSW Corrective Service officers that his interest in various religions was based on a need to belong.

Criminal history

1. Mr Pender has a significant criminal history including for violent offences. The following outline of Mr Pender's offending is drawn from the substantial statement of agreed facts.
2. Mr Pender was staying at a youth refuge in Wollongong when he was charged with maliciously destroying or damaging property on 21 November 2006. Whilst in custody for this offending, Mr Pender threw a glass of water at an officer. In respect of this conduct, Mr Pender was charged with assaulting a police officer in the course of duty. On 28 November 2006, Mr Pender was granted bail subject to conditions.
3. In December 2006, Mr Pender breached his bail on four occasions. In January 2007, Mr Pender breached his bail a further two times. In February 2007, Mr Pender breached his bail for a seventh time and assaulted a police officer. On the same day, whilst in custody, Mr Pender repeatedly hit and kicked the dock door and spat on and slapped a police officer. He was subsequently charged with assaulting police. Mr Pender was taken to Keelong Juvenile Justice Centre, and on 14 February 2007 he was released on bail to a Wollongong youth refuge.
4. On 2 April 2007, Mr Pender was convicted by Port Kembla Children's Court for his offending on 21 November 2006 (assault police, malicious damage) and on 13 February 2008 (assault police). He was sentenced to an 18 month good behaviour bond.
5. On 2 July 2007, Mr Pender was charged with a stalking and intimidation offence. On 6 July, he was issued with a 12 month good behaviour bond at Port Kembla Children's Court. On 11 July 2007, he damaged a window at Kambiyo youth centre whilst in an intoxicated and angry state. He was subsequently arrested and charged with malicious damage, for which he was convicted on 27 August 2007 Mr Pender was fined $100 and ordered to pay $50 compensation to Southern Youth and Family Services. No action was taken in respect of his breach of the good behaviour bond issued on 6 July 2007.
6. On 9 August 2008, Mr Pender assaulted another resident at the Oasis refuge. He was initially refused bail, but bail was subsequently granted on 13 August 2008 subject to a number of conditions and a FACS placement being arranged. On 7 October 2008, Mr Pender was convicted and sentenced for common assault and received a probation order for a period of 9 months, subject to good behaviour and accepting the supervision of Juvenile Justice. The probation order expired on 6 July 2009.
7. Mr Pender turned 18 in 2010. He has a notable criminal history from this point onwards, having been charged and convicted of over 15 offences as an adult.
8. On 15 April 2010, Mr Pender committed the offences of common assault and of using intimidation/violence to unlawfully influence a person. Mr Pender and another male pushed a person against a wall near a bus stop on King Street in Newtown, and when a police car passed by, he placed his hand in his pocket making the victim fear he had a knife. Mr Pender was arrested and charged with both offences.
9. On 4 August 2010, Mr Pender committed the offences of intimidating a police officer in the execution of his duty without causing actual bodily harm and using offensive language in or near a public place/school. On 25 August 2010, Mr Pender was sentenced in relation to these offences, and given a good behaviour bond, several fines, and was ordered to pay court costs.
10. On 23 December 2010, Mr Pender was charged with armed robbery with an offensive weapon. For this offence, he was sentenced to 2 years imprisonment, which was suspended.
11. On 27 December 2011, Mr Pender committed the offence of assault occasioning actual bodily harm on a male at the Lake Macquarie Recovery Centre at Morisset, where both men were residing. The victim suffered substantial injury, including a ruptured kidney (which was congenitally abnormal) and a bleeding mouth.
12. On 12 October 2012, Mr Pender committed several further offences, including stalking and intimidation, destroying and damaging property, and assaulting a police officer in the execution of his duty.
13. On 2 July 2013, Mr Pender was charged with torturing and beating a dog to death contrary to s 6(1) of the Prevention of Cruelty to Animals Act 1979 (NSW) and s 530(1) of the Crimes Act 1900 (NSW) (the animal cruelty offence).
14. On 27 March 2013, Mr Pender was given a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with the condition that Mr Pender take prescribed medication and comply with medical directions. On 25 September 2013, after committing further offences, Mr Pender was sentenced to imprisonment for the assault, commencing on 2 July 2013 and concluding on 1 July 2014, with a non-parole period of 4 months.
15. Around this period, in 2015, several reports were made to the National Security Hotline in relation to Mr Pender.
16. The first incident was in June 2015. Pauline Trama discovered an icon on their home computer which was an image of the Islamic flag. Mr Pender admitted to Peter Trama that he had downloaded it. On 5 June 2015, Peter Trama called the National Security Hotline and reported that Mr Pender had made a threat to a local pub using Islamic terminology, that he had tried to convert the caller, and that he had downloaded an ISIS flag on to the Trama's computer.
17. The second incident occurred on 30 June 2015. An email was sent to the National Security Hotline in relation to the Facebook profile of "Abdulla Islam" which was under control of Mr Pender. The report noted that Mr Pender appeared to be "a bit detached from reality".
18. The third incident occurred on 30 July 2015. A person contacted the National Security Hotline in relation to threatening videos that had been posted from a Facebook page under the name "Abdullah Muhammad Islam". The caller reported that a video threatening to behead a 'Danny' had been posted. The caller suggested there was something wrong with "Abdullah Muhammad Islam" (ie Mr Pender), as he had previously professed a liking for ISIS.
19. A fourth incident occurred on 10 October 2015. An anonymous male caller contacted the National Security Hotline in relation to disturbing posts and images on a Facebook page belonging to "Abu Abdullah Al Australi". The caller said that the posts made on that Facebook profile were getting worse and included threats towards the police, the Australian Government, the Army and the ANZACs. The caller said that the last post on 10 October 2015 stated, "death to the Police, the Army and the people who support the Australian Government".
20. On 14 October 2015, Mr Pender was charged with four offences related to using a carriage device to harass, menace and offend. These offences related to sending threatening text messages to Mr Trama and making a number of threatening Facebook posts.
21. On 2 September 2016, Mr Pender was charged with another offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), in relation to stalking and intimidation.

The terrorism offence

1. On 20 November 2019, Mr Pender pleaded guilty to two charges relating to offending on 14 June 2017. Those charges, and their particulars, were: 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 (Cth). 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).
2. The factual background to those offences is set out in the sentencing reasons of Harrison J.
3. At approximately 1:00 am on 13 June 2017, Mr Pender attended an internet café in George Street, Sydney. While he was there, he borrowed a mobile telephone from Mr Ji Hwan Kim several times. When he left the internet café at about 1:40 am, he took Mr Kim's mobile phone with him and used it to download a picture of a Shahada flag.
4. The Shahada is a profession of faith; it is the testimony given by Muslims declaring the oneness (tawhid) of God (Allah) and the acceptance of Muhammad as God's messenger. The Shahada calligraphy is used on Islamic flags, such as that of Saudi Arabia, Jihadist organisations and the Taliban.
5. At about 1:50 am, four police officers conducting duties in the Surry Hills Local Command area, were speaking to a member of the public when they observed Mr Pender walking in their direction, intoxicated and muttering to himself.
6. When one of the officers introduced himself to Mr Pender, Mr Pender replied, "fuck off cunt, I've got nothing on me". Mr Pender maintained an aggressive manner during the exchange. When Mr Pender was asked to separate his hands, he moved them behind his back and appeared to obtain an object from his right jumper sleeve. When asked by a police officer what he was grabbing, Mr Pender replied, "fuck off". The officer saw what he believed to be a knife and grabbed Mr Pender's right wrist. During the ensuing struggle, a knife was wrestled from Mr Pender.
7. As police ordered Mr Pender to get on the ground, and in the process of handcuffing him, Mr Pender made a number of comments to the effect of being ready to "go back to Goulburn Super Max". He also said, "fuck off; if I still had my knife I'd fucking kill you all" and "fucking stab every one of you dogs in the throat". Later, whilst in custody, Mr Pender made a number of violent comments towards those he interacted with. He told police officers, "the proudest thing a man can do is behead a cop" and he threatened to rape the officers' wives. He also made threatening hand gestures simulating stabbing one of the officers in the upper body and head. Mr Pender also stated, "when I get out I am go (sic) into the city and make myself a martyr and kill as many people as I can" and "Allahu Akbar".
8. Mr Pender continued to threaten officers in a similar manner whilst he remained at Surry Hills police station overnight including stating, "when I get out of here I am going to fucking kill you. I am the Mujahidin; I am going to enter martyrdom on the streets of Sydney". He also made reference to Man Haron Monis (who took hostages in a siege of the Lindt Chocolate Café in Martin Place) stating, "Monis was nothing, wait to you see what I am going to do." Mr Pender continued to make threats to behead any person who entered the charge room.

Threat to Magistrate Keogh

1. At about 2:35 pm on 14 June 2017, Mr Pender attended Central Local Court and appeared by way of audio-visual link before Magistrate Keogh for a bail application in relation to his offending the previous night. He applied for bail and was represented by Legal Aid NSW. Bail was opposed.
2. During the bail hearing, Mr Pender audibly made comments such as, "Allahu Akbar" and, "[L]ong live Abu Bakar Al Baghdadi". Mr Pender made continuous gestures of smiling, winking and pointing to people in attendance at the bail hearing and made a slitting motion across his throat. He also pretended to load a gun and fire it at the court and made the tawhid gesture a number of times.
3. Following submissions, Magistrate Keogh asked Mr Pender if he wanted to say anything regarding his bail. Mr Pender stated he needed to be released from custody so he could pick his child up from Canberra Hospital. He also said, "[L]ong live Abu Bakar Al Baghdadi, Islamic State, Allahu Akbar".
4. Magistrate Keogh refused bail. As she was providing her reasons for doing so, Mr Pender made a noise to simulate the sound of gun fire and said: "You're all fuckin' dead. I swear to god (wahyet allah). If I had it my way I'll be beheading all of you one by fuckin' one, fuckin' dogs, fuck you all man. Allahu Akbar. I'm at war with your country. I'm at war with your government. May I continue to… aim to be a mujahid. When I get out I will be blowing myself up. I will be killing the military and the police. Allahu Akbar."
5. When bail was refused, Mr Pender said: "Fuck you judge, you'll be next. Allahu Akbar, Inshallah… fuck you, I'll cut your fuckin' head off you dog. I told you I'll fuckin' kill everyone in that court room. Inshallah I'll get you all soon. I'm at war with your… [sentence not completed]"
6. It is common ground that Mr Pender had demonstrated anti-social behaviour and reported symptoms consistent with schizophrenia in the lead up to the offending and was using ice, hearing voices, had suicidal ideations, was taking antipsychotic medication, and was living in crisis accommodation as he was homeless.
7. Mr Pender pleaded guilty to these charges and on 18 December 2019 Harrison J sentenced him for the terrorism offence 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 head sentence expiring on 13 September 2021. For the threat offence he received a fixed term of imprisonment of six months commencing on 14 June 2017 and expiring on 13 December 2017.

Views of the Sentencing Court

1. One of the mandatory considerations when making an ESO is the attitude of the sentencing judge. Mr Pender gave evidence before Harrison J. His Honour sentenced him on the basis that his offending conduct was associated with his schizophrenia or schizoaffective disorder and the fact that he is prone to disinhibited and impulsive behaviour and psychomotor agitation. His Honour concluded the following on this issue at [41]-[42]: "[41] The Crown emphasised that Mr Pender's mental health was a matter to be taken into account under s 16A(2)(m), but must be shown "by some evidence" actually to have contributed to the commission of the offence before it can be considered to be relevant to his culpability: Hammond v R [2008] NSWCCA 138 at [32]-[34]. Such a connection cannot simply be based upon speculation. That is not to say, however, that behaviour as bizarre as Mr Pender's does not reliably and emphatically inform a conclusion that it was at least to some extent the product of a disordered mind. Auditory hallucinations including commands to kill were reported by Mr Pender at the time of his arrest. He continues to be diagnosed with characteristics such as disinhibition and impulsivity. I accept that Mr Pender was not in a florid psychotic state, but mental illnesses lie on a continuum of varying degrees of seriousness: it would be churlish in the circumstances of this case to conclude that Mr Pender's criminal acts were committed by someone with unfettered powers of self-control, logic and rationality. That applies in my opinion both to his behaviour in the streets of Surry Hills as well as in the Central Local Court. [42] As Whealy J observed in R v Sharrouf [2009] NSWSC 1002 at [61], the presence of substantial and chronic mental illness is relevant to an assessment of objective criminality. The Crown maintained a submission that in the present case there was an absence of an expert opinion about any causal link between Mr Pender's mental illness and its contribution to his offending. If that submission is intended to support a proposition that I can only take mental illness into account when sentencing an offender if a suitably qualified medical specialist has said in terms that the offending was caused by the mental illness, or that it was a contributing factor, then I reject it. There is abundant evidence in this case, to which I have referred in some detail, from which I consider it is legitimate to infer that Mr Pender's mental illness contributed to his offending conduct."

Continuing Detention Order ("CDO") Proceedings

1. By summons filed on 5 July 2021, the former Minister for Home Affairs sought an order under s 105A.7A of the Code that Mr Pender be subject to a continuing detention order ("CDO") for a period of three years. At that time, Mr Pender was serving the sentence of imprisonment for the terrorism offence and the threat offence.
2. On 23 July 2021, Cavanagh J made orders pursuant to s 105A.6(3) of the Code appointing experts, namely Dr Andrew Ellis and Dr Kerri Eagle, forensic psychiatrists, and Dr Chelsey Dawson, a forensic psychologist to assist the court in determining whether to make a post-sentence order in relation to Mr Pender: Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921.
3. On 26 August 2021, Bellew J made an interim detention order ("IDO") expiring on 11 October 2021. That order was extended by his Honour on 29 September 2021 to 15 October 2021 and by the court on 15 October 2021 until 30 October 2021, and again by further order until 9 November 2021.
4. On 13, 14, 15 and 19 October 2021, the final hearing was conducted before Walton J. On 9 November 2021, Walton J ordered that Mr Pender be subject to a CDO pursuant to s 105A.7A(1) of the Code for a period of one year from 13 September 2021. Reasons were subsequently provided on 15 December 2021: Minister for Home Affairs v Pender [2021] NSWSC 1644.

Decision of Walton J

1. The Attorney placed significant reliance on the findings of Walton J given the overlap in the issues that arose in those proceedings with the issues arising in the present application. It is of significance that Dr Eagle, Dr Ellis and Dr Dewson all provided reports in those proceedings and gave evidence at the hearing.
2. The Attorney relied upon the finding of Walton J that he was satisfied to a high degree of probability on the basis of admissible evidence that Mr Pender posed an unacceptable risk of committing a serious Part 5.3 offence. His Honour considered the primary risk to be that he would commit an offence with the intention of advancing a potential religious or ideological cause in coercing or influencing by intimidation a government or intimidating the police resection of the public service: at [438].
3. I propose to summarise the opinions of Dr Eagle, Dr Ellis and Dr Dewson upon which Walton J reached his conclusion that Mr Pender be placed on a CDO.

Dr Ellis

1. Dr Ellis diagnosed Mr Pender with schizophrenia, substance abuse disorder. Given his traumatic experience consistent with PTSD he meets the criteria for personality disorder. The diagnosis of schizophrenia was based on at least a 10 year history of auditory hallucinations and delusions, recorded by multiple clinicians. Although his symptoms are exacerbated by significant substance use, they have persisted in custody despite a relative lack of access to substances and treatment with antipsychotic medication. He was satisfied that substance abuse is not the sole cause of his presentation. He considered him to have a treatment resistant condition.
2. Dr Ellis was of the opinion that Mr Pender displayed "an emergent and unsophisticated" insight into his propensity for violence and that he understood the need for treatment and management of this. Dr Ellis opined before Walton J that in absence of any treatment or supervision, Mr Pender's risk for violent offending is "high in frequency with potential for serious consequence in his specific case owing to use of weapons when in a state of persecutory ideation associated with decompensation in his mental state". He acknowledged that predicting the risk for acts of extremist-terrorist related violence is more difficult, but Mr Pender now displays a low number of characteristics associated with terrorist related violence and offences.
3. Dr Ellis was of the opinion that the risks presented could be managed by a combination of community orders and interventions. Mr Pender required stable accommodation and supervision orders. He recommended "exclusion zones", monitoring of telecommunications and social media services and non-association directions. He was also of the view that a "curfew" would assist in the stability of lifestyle and GPS monitoring may motivate Mr Pender to attend upon risk management and rehabilitation goals.
4. Dr Ellis was of the view that Mr Pender's schizophrenia, substance use disorders and personality disorders are "chronic, relapsing conditions and resistant to treatment and rehabilitative efforts". Factors that could reduce his risk would be compliance with medication, substance use abstinence and establishing a routine in life. He also needs to avoid situations which may challenge his ability to cope with stress. This could be established if he remains under supervision with supports in place.

Dr Dewson

1. Dr Dewson opined that Mr Pender has a history of psychological disturbances, which have been subject to ongoing psychiatric intervention. He presents with psychotic symptoms and has been diagnosed with schizophrenia and schizoaffective disorder. She assessed Mr Pender as a low-moderate risk of committing a violent extremist offence if he was to remain sober, engage with supervision and maintain compliance with his medication. She had reduced her assessment of risk based on his mental health stabilisation and the prosocial supports in place for him in the community. Despite this, he remains a very high risk of general reoffending, a high risk of violent reoffending, and a low-moderate risk of violent extremism.
2. She described Mr Pender as being religiously fixated. Her opinion was that this factor, coupled with violent tendencies, and lack of personal identity renders Mr Pender vulnerable to indoctrination regardless of the religion he follows at the time. He is easily influenced and his risk profile "appears highly unstable".
3. Dr Dewson was of the opinion that Mr Pender's mental health appears to be a relevant factor to his risk of offending. As such, a deterioration in his condition could see a rapid escalation in his risk of offending. His treatment needs include substance abuse, emotional dysregulation, poorly formed sense of self and violent tendencies. Supports would likely have a positive impact on Mr Pender's ability to manage his risk in the future.

Dr Eagle

1. Dr Eagle diagnosed Mr Pender with schizophrenia and schizoaffective disorder and severe substance use disorder. He has also displayed various personality traits that "are consistent with an antisocial and borderline personality disorder". She was of the opinion that Mr Pender would be at an elevated risk of committing a serious Part 5.3 offence in the absence of supervision. She assessed his risk in the absence of any supervision or control order as moderate to high.
2. She noted that Mr Pender's risk factors are affected by his mental health conditions. As a result of these conditions, Mr Pender has substantial deficits in his emotional regulation skills, judgment, interpersonal skills and overall level of function, and during exacerbations of his mental illness and/or periods of intoxication his capacity to interpret reality, his judgment, his problem-solving skills, impulse control and emotional regulation skills would be further impaired.
3. Further, the use of illicit substances would de-stabilise Mr Pender's illness precipitating a psychotic episode and would likely increase his risk of engaging in violence, including violence motivated by an extreme ideological cause. Following release Mr Pender would be at an elevated risk of committing a serious Part 5.3 offence in the absence of any supervision or restrictions. He would be at most risk of, inter alia, carrying a knife with the intention of causing physical harm to a police officer, or member of the Australian public, justified by an extreme Islamic ideology.
4. Dr Eagle opined that Mr Pender's mental illnesses and mental disorders are likely to significantly affect the likelihood of him committing a serious Part 5.3 offence. This is because he has "substantial deficits in his emotional regulation skills, his judgment, his interpersonal skills and his overall level of function". If his conditions were exacerbated, "his capacity to interpret reality, his judgment, his problem solving skills, his impulse control and his emotional regulation skills would be further impaired". Under these circumstances, Mr Pender would be at a heightened risk of acting on any violent ideation justified by ideological beliefs, and/or increasingly susceptible to indoctrination.

Walton J consideration of expert evidence

1. His Honour considered the evidence of the experts as to Mr Pender's risk. He noted at [448] that Dr Eagle assessed his risk of "engaging in a serious Part 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.
2. His Honour observed (at [451]) that it was common ground that Mr Pender's mental illness or substance abuse, are substantially under control 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.
3. His Honour observed the following at [458]-[459] regarding the expert evidence about Mr Pender's mental health: "[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."
4. His Honour observed at [501]: "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)."

The Review Proceedings

1. At the time that Walton J made the CDO, he did not have the option of placing Mr Pender on an ESO under Div 105A of the Code; only control orders or CDOs were available for terrorist offenders. On 8 December 2021, after the CDO had been granted by Walton J but prior to reasons being published, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 (Cth) was assented to. Significantly, amendments were made to Div 105A of the Code to allow for post-sentence ESOs to be made for terrorist offenders.
2. By summons filed 14 February 2022, Mr Pender sought a review of the CDO under s 105A.11 of the Code. That section provides for a review of a post sentence order on application by either party. Under s 105A.11(2)(a) of the Code the court may review the order if satisfied that there are new facts or circumstances which would justify reviewing the order or under s 105A.11(2)(b) if it would be in the interests of justice to review the order.
3. Both parties agreed that the amendments to Div 105A constituted "new circumstances" which justified a review of the CDO. The review proceeding was listed for hearing on 29 April 2022.
4. On 19 April 2022, Mr Pender was charged with affray under s 93C(1) of the Crimes Act. At the time of offending, Mr Pender was in custody. The charge arose from an incident between Mr Pender and another inmate on 14 April 2022 ("the affray incident"). The court made orders by consent vacating the listing and Mr Pender subsequently discontinued the review proceeding, with the consent of the former Minister for Home Affairs.
5. Mr Pender 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.

Recent affray charge

1. On 19 April 2022, Mr Pender was charged with affray under s 93C(1) of the Crimes Act in relation to offending that occurred on the morning of 14 April 2022 at Silverwater gaol. Since February 2022, and at the time of this offending, Mr Pender was housed at the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater Correctional Complex. For most of his time there, he resided at the Hamden Mental Health Step-Down Unit within MRRC.
2. CCTV footage shows that at approximately 10:10 am on the morning of 14 April 2022, Mr Pender and two other inmates were involved in an altercation in one of the cells at MRRC. All three inmates either entered the cell or stood outside it. Mr Garcia fell to the ground. Shortly after that CCTV footage was recorded, at about 11:15 am, officers at the MRRC were informed that inmates in the cell had had a fight. Upon responding, officers saw Mr Garcia with a swollen left eye and laceration to his head. Mr Garcia was escorted to the Hamden clinic and then to hospital to receive medical attention and treatment.
3. Body worn video camera footage of Mr Garcia records him explaining that there was an altercation between himself and Mr Pender because he refused to loan Mr Pender a radio clock. Mr Pender started punching him after he refused to do so, and another inmate then joined and began bashing and kicking him. This account was consistent with the CCTV footage of the altercation.
4. In April 2022, following the affray, Mr Pender was transferred to the segregation unit of the MRRC where he remained until 24 June 2022, when he was returned to Hamden clinic. On 28 September 2022, Mr Pender entered a plea of guilty to a charge of assault occasioning actual bodily harm in company pursuant to s 59(2) of the Crimes Act. The affray charge was withdrawn. Mr Pender was sentenced on 10 October 2022 to a fixed term of 6 months imprisonment to commence on 19 April 2022 and expire on 18 October 2022.
5. Between April and August 2022, Mr Pender spoke to PRISM staff about his offending on 14 April 2022. The case notes recorded that Mr Pender was remorseful about what had occurred, although he provided a different version. Mr Pender expressed regret about his behaviour and said that he should not have done what he did, considering how close he was to being released on an ESO. He was annoyed with himself.
6. On 9 September 2022, the Attorney filed the present application for an ESO. The preliminary hearing came before Lonergan J on 4 October 2022.
7. On 7 October 2022, Lonergan J made an ISO in respect of Mr Pender pursuant to s 105A.9A(4) of the Code to commence on 10 October 2022 for a period of 28 days: Attorney General (Cth) v Pender (Preliminary) [2022] NSWSC 1360. Mr Pender had not opposed the order.
8. Mr Pender was released from custody on 18 October 2022.
9. On 1 November 2022, the court ordered by consent that Mr Pender be subject to a further ISO in the same terms commencing on 7 November 2022 for a period of 28 days.
10. On 7 November 2022, approximately three weeks following his release, the Mr Pender was arrested by the Australian Federal Police and charged with four sequences of contravening a condition of his ISO contrary to section 104A.18A(1) of the Code. The particular breaches were: 1. Breach one - downloading the following applications without approval: Voice Recorder, My Recorder, Voice Recorder: memo and audio, Auto Rap, Tune Me, Off Topic, SMule and File Security. 2. Breach two - creating a LinkedIn Account. 3. Breach three - deleting the following applications without permission: Auto Rap, Tune Me, Off Top. 4. Breach four - creating a Facebook account.
11. On 8 November 2022, Mr Pender made an unsuccessful application for release at Newtown Local Court and remains bail refused.

Legislative Scheme

1. As stated above, the court was informed that if this ESO is granted it would only be the second ESO to be made since Div 105A was amended to extend the scope of that division to ESOs on 8 December 2021. The first ESO under the Code was made on 8 November 2022 in Victoria: Attorney-General (Cth) v Sa'adat Khan (No 2) [2022] VSC 687. Given that the present application is the first to be decided in NSW, I shall consider some of the relevant statutory provisions below, confining my consideration to the provisions relevant to this application.
2. The power to make an ESO is contained in Div 105A of the Code. The object of that Division is provided in s 105A.1 as follows: The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to: (a) a continuing detention order; or (b) an extended supervision order.
3. Section 105A.2 defines certain terms. A "serious Part 5.3 offence" means an offence against that Part for which the maximum penalty is 7 or more years of imprisonment and a "terrorist offender" is defined in s 105A.3 as, inter alia, the person that has been convicted of a "serious Part 5.3 offence" and, relevantly, either: (i) the person is detained in custody and serving a sentence of imprisonment for the offence; or (ii) a continuing detention order or interim detention order is in force in relation to the person; and
4. Section 105A.3A sets out who a post sentence order may apply to. Section 105A.5 sets out the requirements for applications for post sentence orders. Applications for a CDO or an ESO in relation to a terrorist offender are to be made by an AFP Minister, or a legal representative of an AFP Minister, to a Supreme Court of a State or Territory: s 105A.5(1). Such an application may not be made more than 12 months before the end of, relevantly, a post sentence order: s 105A.5(2)(b). The application must include each of the matters set out in s 105A.5(3), in particular, the application must include the items set out at s 105A.5(3)(d)(i)-(iii), those being: 1. A copy of the proposed conditions (s 105A.5(3)(d)(i)); 2. An explanation as to why each of the proposed conditions should be imposed on the offender (s 105A.5(3)(d)(ii)); 3. A statement of facts of which the plaintiff is aware which would reasonable regarded as supporting a finding that the order should not be made (except any facts that are likely to be protected by public interest immunity) - s 105A.5(3)(aa)(ii); and 4. If the AFP Minister is aware of any facts relating to why any of the proposed conditions should not be imposed on the offender, a statement of those facts (except any facts that are likely to be protected by public interest immunity) - s 105A.5(3)(d)(iii).
5. It is to be noted by way of comparison that neither the CHRO Act nor the THRO Act require the application to include an explanation as to why each of the proposed conditions should be imposed on the offender. Nor is there any requirement under neither the CHRO Act or the THRO Act to provide a statement of facts. It is to be noted that in the present matter an agreed statement of facts was provided which was helpful.
6. There is no requirement in the Code to provide any particular risk assessment report prior to commencement of proceedings. By way of contrast, under s 6(3)(b) of the CHRO Act and s 23(3)(b) of the THRO Act, it is mandatory that an application for an ESO is accompanied by documentation that includes a report that assesses the likelihood of the offender committing a serious offence.
7. Section 105A.6 provides for the appointment and assessment of relevant experts. When an application for an ESO is made, the court must within 28 days hold a preliminary hearing to determine whether to appoint one or more relevant experts: s 105A.6(1) and (2).
8. The court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the court considers that doing so is likely to materially assist the court in deciding whether to make an ESO in relation to the offender: s 105A.6(3). This is a further difference with the CHRO Act and THRO Act; s 7(4) of the CHRO Act and s 24(5) of the THRO Act both require the court to make orders appointing some combination of qualified psychiatrists and/or registered psychologists, to conduct psychiatric or psychological examinations of the offender and to furnish the results of those examinations to the court.
9. Under s 105A.6A(2), if an application is made under s 105A.5 to the Supreme Court of a State or Territory for an ESO in relation to a terrorist offender, the court may determine the application by (a) making an ESO under s 105A.7A; or (b) dismissing the application.
10. The matters the court must have regard to when making a post sentence order are set out in s 105A.6B which is in these terms: (1) In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters: (a) the object of this Division; (b) any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under: (i) section 105A.6; or (ii) section 105A.18D; (c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment; (d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by: (i) the relevant State or Territory corrective services; or (ii) any other person or body who is competent to assess that extent; (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs; (f) the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole for any offence referred to in paragraph 105A.3(1)(a); or (ii) subject to a post-sentence order, interim post-sentence order or control order; (g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a); (h) the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender; (ha) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order; (i) any other information as to the risk of the offender committing a serious Part 5.3 offence. (2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant. (3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to post-sentence order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.
11. Section 105A.7A sets out the requirements for the making of an ESO and provides as follows: (1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if: (a) any of the following applies: (i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender; (b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and (c) the Court is satisfied on the balance of probabilities that: (i) each of the conditions; and (ii) the combined effect of all of the conditions; to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk. (2) For the purposes of paragraph (1)(c), in determining whether each of the conditions to be 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 this Division (see section 105A.1). (Emphasis added.)
12. The relevant standard of proof for the making of an ESO is satisfaction of certain matters on the balance of probabilities. This is to be contrasted with the analogous provisions in CHRO Act and the THRO Act. Under s 5B(d) of the CHRO Act and s 20(d) of the THRO Act the Supreme Court can only make an ESO if it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
13. Further, s 11(1) of the CHRO Act and s 29(1) of the THRO Act provide that an ESO may direct an eligible offender to comply with such conditions that the Supreme Court deems "appropriate". By contrast, the Commonwealth regime requires a more onerous test, that the orders imposed must be "reasonably necessary and reasonably appropriate and adapted" as required by s 105A.7A(2) of the Code.
14. Section 105A.7B provides for the imposition of conditions for ESOs (and ISOs) and lists the type of conditions that can be imposed. Section 105A.7B(1) provides as follows: (1) The conditions that a Court may impose on a terrorist offender by an extended supervision order or interim supervision order are: (a) any conditions that the Court is satisfied; and (b) those conditions whose combined effect the Court is satisfied; on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
15. Section s 105A.9B(1A) provides that if the AFP Minister is satisfied that a condition of an ESO or ISO in relation to a terrorist offender is no longer reasonably necessary, or reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence, then an application can be made to the court to remove or vary the condition. Under s 105A.9B(1), the offender can also make an application to vary or remove one or more conditions.
16. Under s 105A.10, the AFP Minister (or legal representative) must before the end of the 12 months after the order is in force apply to a Supreme Court of a State or Territory for a review of a post-sentence order that is in force in relation to a terrorist offender. If the order has been reviewed, then the review must be commenced within 12 months after the most recent review. Thus, under the Code, there are mandatory yearly reviews of the ESO to ensure the conditions remains reasonably necessary and reasonably appropriate and adapted to the purpose. It is to be noted that there is no such requirement under either the CHRO Act or the THRO Act.
17. Under s 105A.11(1) of the Code either party can apply to a Supreme Court of a State or Territory for a review of a post-sentence order.
18. Section 105A.13 provides that the civil evidence and procedure rules apply in relation to post-sentence order proceedings as follows: (1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a post‑sentence order proceeding. (2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of: (a) the level of the offender's compliance with any conditions (however described) to which he or she is or has been subject while: (i) on release on parole for any offence; or (ii) subject to an extended supervision order, interim supervision order or control order; and (b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.
19. Section 105A.18 provides for the consequences of sentences ending or orders ceasing to be in force. Section 105A.18C(1) provides that a CDO or an ISO in relation to a terrorist offender is suspended during the period that the offender is detained in custody in a prison other than as a result of the order. Section 105A.18C(3) provides that a post-sentence order or interim post-sentence order continues to be enforced in the period in which the order is suspended but under s 105A.18C(4) the offender is not required to comply with any condition in an ESO or ISO during the period that the order is suspended. This is another difference as between the Code as opposed to the THRO Act and the CHRO Act. Under s 10(2) of the CHRO Act and s 26(7) of the THRO Act an offender's obligations under an ESO are suspended while the offender is in lawful custody whether under the THRO or any other Act or law.

Recent expert evidence

1. I have already summarised the evidence of the three court-appointed experts who gave evidence before Walton J. I have had regard to their previous reports by way of background to their three recent reports.

Dr Eagle

1. In Dr Eagle's report dated 5 August 2022 her opinion remains largely unchanged from her previous conclusions. Her expert opinion is that the factors relevant to Mr Pender's risk of committing a serious Part 5.3 offence in the community continue to include his mental illness and substance use disorder, his preoccupation with religion, his susceptibility to the influence of indoctrination, his poor impulse control and his pervasive emotional instability.
2. It is the opinion of Dr Eagle that Mr Pender requires a "comprehensive, holistic, multidisciplinary treatment and rehabilitation approach to address his risk indicators and significantly reduce his risk of engaging in a serious Part 5.3 offence. She referred to the affray charge, the facts of which I have summarised above, and noted that Mr Pender remains susceptible to impulsive and aggressive behaviours even in the custodial environment. She further stated that the affray charge shows that pharmacological treatment of his mental illness alone will not address Mr Pender's risk of aggressive behaviour.
3. Dr Eagle is also of the opinion that Mr Pender's transition into the community, even with substantial support, would be stressful and he would likely have difficulty tolerating the stresses without resorting to illicit substance abuse and/or engaging in aggressive behaviours. Her opinion is that any release directly into the community would be unlikely to adequately manage his risk of committing a serious Part 5.3 offence.
4. Dr Eagle's view is that, ideally, Mr Pender requires a long-term rehabilitation admission in a secure mental health facility as this would address his mental health conditions. She believed he would benefit from transition through a high security forensic rehabilitation facility. Unfortunately, as I have observed below, Dr Spencer, who oversaw his mental health treatment in custody, is of the view that that option is not available to Mr Pender.
5. In conclusion, Dr Eagle is of the view that Mr Pender's mental health needs can be adequately managed in the community with assertive community mental health follow-up from the local Community Mental Health Team. She was of the view that Mr Pender would benefit from an ESO if released in the community to an appropriate placement.

Dr Ellis

1. Dr Ellis view has not changed since he gave evidence before Walton J. He was of the view that there is limited information to suggest any change to his assessment of Mr Pender's risk of violence and specific terrorism offences. He did note that there was some evidence that his general regulation of behaviour has improved but went on to observe that there is a high loading of historical risk factors associated with violence in the longer term, greater than in the general prison population of violent offenders or psychiatric patients. He stated the following in relation to Mr Pender's mental health: "This continues to indicate a high loading of modifiable risk factors, with some minor improvement, but not to a degree or length of time to make substantive modifications to the overall opinion regarding risk. If he were to sustain progress in his current setting, these changes would be more favourable, but at least two years would be required given the length of time violent behaviour had occurred and his substantial historical risks."
2. Dr Ellis went on to observe: "In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Pender would fall into a group of persons with a risk of violent offending that is high in frequency with potential for serious consequence in his specific case owing to use of weapons when in a state of persecutory ideation associated with decompensation in his mental state. The risk of general violence will be higher than a theoretical average prisoner or psychiatric patient, and the recent assault in prison is evidence of this general propensity to violence."
3. Dr Ellis opined that the risk factors remain as being Mr Pender's mental illness, personality disorder, substance abuse, background of disadvantage and attendant chaotic lifestyle. He concluded that there was no significant change to the risk evaluation from his previous assessment.

Dr Dewson

1. Dr Dewson was also of the same opinion as in her initial risk assessment. She is of the opinion that there is a very real risk that Mr Pender could return to substance use upon release and become non-compliant with his psychotropic medication regime which could see him deteriorate rapidly. She observed the following in her report: "His recent use of violence within a restricted environment is alarming. Although this doesn't necessarily raise his risk in terms of the VERA-2R, it highlights his propensity for violence, for seemingly minor indiscretions on the victim's behalf. This reflects poor judgement, self-regulation deficits, impulsivity and likely cognitive distortions. Should he experience a decline in his mental health, or should he return to substance abuse, there is a real possibility that he may reexperience delusions and paranoia associated with religious beliefs. Coupling this with his propensity for violence, his risk of committing a serious terrorism offence could escalate rapidly and with little warning. In my opinion, this would be very difficult for authorities to manage in the absence of an ESO."
2. Dr Dewson also set out a number of risk scenarios relevant to Mr Pender in her report as follows: "It is likely that the aforementioned scenarios would be actualised in the context of the following factors: a deterioration in his mental health (specifically if he was to become actively psychotic), any substance use, associating with antisocial peers (that is, criminals, people who support violent extremism, and/or people who do not promote Mr Pender living a sober and offence free life), lacking personal identity or having an unstable sense of identity, poor coping, accessing violent extremist material and becoming disgruntled in some way."
3. Dr Dewson was also concerned with Mr Pender's association with ultraconservative religious groups.

Report of Commander Booth

1. In addition to the three court appointed experts, a report was provided by Commander Sandra Booth. Commander Booth is an Australian Federal Police (AFP) member and holds the position of Commander, Counter Terrorism Enduring Risk Investigations. She has been a member of the AFP for 22 years and has significant experience in the investigation of various Commonwealth offending. Commander Booth's roles have been in various teams including the Counter Terrorism, Disruption, Diversion and Community Liaison team.
2. Relevantly, in January 2019, Commander Booth assumed the role of Commander of the Counter Terrorism Operations South. In this role she has overseen at least eight terrorism operations, and a number of investigations and terrorism prosecutions. She is regularly called upon by AFP Assistant Commissioners nationally to brief them on management of high risk terrorism offenders following their release from custody and strategies for mitigating the risks they pose.
3. In this role, Commander Booth also became responsible for the High Risk Terrorist Offender team, which was established in response to the enactment of Div 105A of the Code. The team's purpose is to draw on the specialised counter terrorism policing knowledge and resources of experienced AFP members to manage the risk posed to the public by the release of offenders convicted of Commonwealth terrorism offences into the community, after serving their sentences. This includes consideration of how identified risks may be managed by the imposition of relevant control orders of ESOs. Since undertaking this role, in January 2015, 25 terrorist offenders have been released from custody, 13 of which we dealt with by way of control order.
4. Commander Booth reviewed the expert evidence in this application and considered that all of the risk factors she had previously identified remain relevant to Mr Pender's risk of committing a serious Part 5.3 offence. Unsurprisingly, she identifies the key risk factors as being mental illness, substance abuse, propensity to impulsive and aggressive behaviour, personality disorder and traits of a lack of support the community. Her conclusion was as follows: "Overall, my primary concerns regarding Mr Pender's risk remains that he is a person who is highly susceptible to a rapid escalation to violent behaviour. A rapid escalation of violent behaviour, as opposed to a gradual escalation to such behaviour, reduces the ability of police to detect a change in risk and reduces the opportunities for police to intervene prior to the commission of an offence. In circumstances where an offence, including a serious part 5.3 offence, can be committed with no effective prior planning and within a matter of minutes, it is my experience that a person of Mr Pender's risk profile is amongst the most challenging for law enforcement to manage."
5. I have addressed Commander Booth's opinion evidence regarding the proposed conditions in my consideration of them below.

Report of Dr Sarah Jane Spencer

1. Dr Spencer is the Clinical Director, Custodial Mental Health, and Medical Superintendent Long Bay Hospital within the Justice Health and Forensic Mental Health Network. Mr Pender has been her patient on a number of occasions. She has had oversight of his mental health treatment since June 2017. She referred to the report of Dr Eagle suggesting that Mr Pender would benefit from being transitioned into a forensic hospital and opined that she does not believe that he is eligible. Given her knowledge of his current mental health, she would not be satisfied that he should be involuntarily detained under ss 12 or 19 of the Mental Health Act nor is she satisfied that there is no other care of a less restrictive kind consistent with safe and effective care.
2. Dr Spencer's expert opinion was that Mr Pender's mental health needs to be adequately managed in the community with assertive community mental health follow-up from the local Community Mental Health Team. She noted that his forensic Community Treatment Order ("CTO") was varied on 19 October 2022 to reflect his release from custody.

Consideration

1. As stated above, Mr Pender accepts that the statutory criteria for the making of an ESO have been met in this matter. Despite this, it is still necessary for me to be satisfied of the matters in s 105A.7A(1) before I could place Mr Pender on an ESO on specified conditions.
2. Section 105A.7A(1) provides that the court may only make an ESO if three requirements are met: 1. That an application for an ESO in relation to a terrorist offender is made in accordance with s 105A.5; 2. That, after having regard to matters in accordance with s 105A.6B, the court is satisfied on the balance of probabilities, based on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and 3. That the court is 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 is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.
3. There was no dispute in this matter that this application for an ESO in relation to a terrorist offender had been made in accordance with s 105A.5 and I am satisfied those requirements will be met. I am satisfied that Mr Pender is a terrorist offender as defined in the Code given the matters that he pleaded guilty to before Harrison J. I shall consider (2) and (3) above in turn.

Unacceptable risk?

1. The relevant risk under s 105A.7A(1)(b) is a risk of Mr Pender "committing a serious Part 5.3 offence", meaning an offence against Part 5.3 of the Code the maximum penalty for which is 7 or more years of imprisonment.
2. The term "unacceptable" risk is not defined in the Code, but it was common ground that the principles derived from the decisions concerned with similar provisions in the THRO Act and the CHRO Act, upon which Div 105A was modelled, are applicable. It has been held in those decisions that the phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the relevant Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") per Beazley P at [58], with whom Gleeson JA agreed. The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] per Basten JA.
3. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate".
4. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]: "[43] It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
5. In Minister for Home Affairs in Benbrika [2020] VSC 888, the Victorian Supreme Court considered an application for a CDO under Div 105A. In that context, the decision of the NSW Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 (concerning the THRO Act) was cited with approval in the following passage at [405]: "In NSW v Naaman (No 2), the NSW Court of Appeal said of the relevantly similar s 20(d) of the THRO Act (which provides that the Supreme Court may make an extended supervision order if, amongst other things, the Court is 'satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order') that it is 'forward looking' and that it will be 'relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct'. The Court observed in relation to whether a risk is or is not 'unacceptable' that even if there is a slim probability of the offender committing a terrorist act, that risk may be unacceptable having regard to the consequences of such an act. Similar views have been expressed by a number of single judges of the Supreme Court of NSW considering cases under the THRO Act."
6. The court must be satisfied that the offender poses the relevant unacceptable risk "after having regard to matters in accordance with section 105A.6B". Those factors are extracted above at [137]. I have had regard to that non-exhaustive list of considerations as well as to the object of the Division, being to "ensure safety and protection of the community". I have had regard to the expert evidence concerning the risk of Mr Pender committing a serious Part 5.3 offence which I have summarised above. I have also had regard to the level of his participation in the assessment process, which was favourable.
7. I have had regard to the expert reports addressing the extent to which Mr Pender can reasonably and practicably be managed in the community including the report of Commander Booth. Those reports have also addressed the treatment or rehabilitation options for Mr Pender and the level of his participation in any such programs, including in custody. I also have regard to the offender's history of prior convictions, the views of Harrison J and the other orders that the applicant is on, including his CTO.
8. One of the mandatory considerations in s 105A.6B of the Code is the level of the offender's compliance with any obligations to which the offender is or has been subject while, inter alia, subject to a post-sentence order. It is relevant in this regard to note that the Attorney did not seek to prove in these proceedings that Mr Pender engaged in the conduct which is said to constitute the recent breach offences. Not only do those breaches remain unproven at this stage, they are minor and, as his senior counsel submitted can be characterised as naivety on Mr Pender's part, indicative of his difficulty adjusting to living under a supervision order as opposed to within a custodial environment. Although the Attorney does not rely on any of those alleged breaches, it is relevant that none of them involved activity remotely related to terrorism or even behaviours of concern, such as drug taking.
9. I have had regard to all of the admissible material before me, most of which comprised the detailed agreed facts, the expert reports and affidavits. In particular, I have had regard to the expert evidence before Walton J in combination with the more recent reports from the same experts.
10. The Attorney's position was, in effect, that if Walton J was satisfied 12 months ago to "a high degree of probability" (being the standard of proof for making a CDO) that Mr Pender posed an unacceptable risk of committing a serious Part 5.3 offence, then it follows, given that very little has changed, that this court would be satisfied on the balance of probabilities (being the standard of proof for making an ESO) that the risk remains.
11. I am satisfied that none of Dr Dewson, Dr Eagle and Dr Ellis are of the opinion that Mr Pender's risk factors have diminished. That is hardly surprising as many of them are static including his mental health issues, his propensity to impulsive and aggressive behaviour, difficulties derived from his deprived background, his substance abuse disorder and his lack of support in the community.
12. Mr Pender no longer has contact with his parents, stepfather or siblings or the Tramas. Mr Pender's lack of support in the community is a significant factor. He did not receive any visits between 13 August 2021 and 5 July 2022 and the majority of his limited number of telephone calls in custody were described as being "professional" or "legal". Although he made a number of calls to "Megan Webb" she did not pick up. He has also been reprimanded by Corrective Services NSW for attempting to call his foster parents using another inmate's account. There are no records of Mr Pender receiving or sending written correspondence between 9 November 2021 and 8 March 2022.
13. Despite minimal evidence of any change in his risk factors, there is material suggesting that Mr Pender's behaviour and mental health appear to be improving in a controlled custodial environment, and, to some extent, in his supported accommodation following release in October 2022. I am prepared to accept that the progress made by Mr Pender is encouraging, but it has not been so significant to lead to a conclusion that he no longer poses an unacceptable risk. Significantly, Mr Pender is of the view that he needs to be on an ESO.
14. The agreed facts refer to recent reports suggesting that Mr Pender has generally been compliant with his medication regime, with an exception in May 2022. He was described as being engaged, polite, and open in his interactions with Corrective Services NSW and PRISM staff.
15. Mr Pender is at an early stage of his rehabilitation. His attitude towards the ESO was a positive one. Although his period in the community was relatively brief, he has demonstrated some positive interaction with community organisations and supports during that time including with support workers at Maple Community, Camperdown Community Mental Health, and an occupational therapist, support co-ordinator and behaviour support practitioner.
16. I have also considered the decision in Attorney-General (Cth) v Sa'adat Khan (No 2) [2022] VSC 687, which is the only other decision in which an ESO has been made under Div 105A.
17. Having regard to all of this material, I am satisfied on the balance of probabilities that Mr Pender poses an unacceptable risk of committing a Part 5.3 offence is not placed on an ESO.
18. I turn then to consider the appropriateness of the proposed conditions and, in particular, whether they are reasonably necessary, and reasonably appropriate and adapted for the purpose of the protection of the community.
19. I am satisfied that, subject to the suitability of each condition, the ESO should be for a period of three years based on the expert evidence. I have had regard to the requirement of an annual review of the conditions mandated by s 105A.10.

Are the proposed ESO conditions reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public?

1. The court has a broad power to impose conditions on an ESO under s 105A.7B(1) constrained only by the fact that the court must be satisfied on the balance of probabilities that when combined they are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
2. The Attorney seeks the imposition of 22 conditions under the proposed ESO. I have considered each of them in turn and am satisfied that when read individually and together they are reasonably necessary, appropriate and adapted for the purpose of protecting the community from the unacceptable risk of Mr Pender committing a serious Part 5.3 offence. In assessing whether those conditions are reasonably necessary and reasonably appropriate and adapted. I have had regard to the fact that the "paramount consideration" was protection of the community from serious Part 5.3 offences, being the objective of Div 105A.
3. As stated above, Dr Eagle, Dr Ellis, and Dr Dewson were all of the opinion that appropriately drafted ESO conditions may reduce the risk posed by Mr Pender. I have also had regard to the evidence given by those experts before Walton J to the same effect. By way of example, Dr Dewson noted that "whilst no one condition is sufficient to manage Mr Pender's risk, I believe the totality of the proposed conditions is likely adequate, in conjunction with the community-based supports in place, to manage Mr Pender's risk of committing a serious Part 5.3 offence in this community".
4. Commander Booth has explained the justification for each condition sought, in her affidavit. Although the fact remains that she does not have extensive experience in ESOs under Div 105A, given that this is only the second one to be granted, I do accept that she is well-placed to comment on how the ESO conditions would work in practice and their limitations in managing the risk of Mr Pender, given her extensive experience in relation to terrorist offenders and as the applicant for control orders.
5. I accept the evidence of Commander Booth that the combined effect of the proposed ESO conditions is reasonably necessary and reasonably appropriate and adapted to the purpose of protecting the community from the risk of Mr Pender committing a Part 5.3 offence. It was noted that Commander Booth discussed the proposed ESO conditions as being "designed to work together as a whole", in that the "various conditions complement each other", and "if some but not all of these conditions are imposed, that will have flow on consequences for the effectiveness of the remaining conditions".
6. I have also had regard to the specific "carve outs" and broad exemption provisions; if it appears that compliance with one or more of the conditions is not necessary or appropriate for some reason, either temporarily or indefinitely, the proposed ESO conditions contain flexibility so as to dispense with compliance. I am also satisfied that the conditions are designed to assist in reintegrating Mr Pender into the community and building a more positive life. It is in that way that the community can be best be protected from Mr Pender in the future.
7. It is significant that there was some negotiation between the parties as to the proposed conditions. Some were not pressed by the Attorney and others varied. Implicit in Mr Pender's acceptance that he needs to be on an ESO is an acceptance that the conditions proposed meet the relevant statutory criteria in s 105A.7A(1).

The proposed conditions

1. Conditions 1, 2, 3, and 7 relate to curfew, reporting, case management and electronic monitoring. I am satisfied that they are reasonably necessary, and reasonably appropriate and adapted for the purpose given the relevant expert evidence and risk factors. The accommodation where Mr Pender will reside in is an NDIS provider and has a 24-hour staff presence. He is able to pay for it through Centrelink funding.
2. Commander Booth concluded that all four conditions, being conditions 1, 2, 3, and 7, are required to be imposed with each other. If any one of the four conditions is not imposed, this may impede upon the police's ability to quickly detect and respond to deterioration in Mr Pender's mental health or behaviour, and any consequential escalation in the risk of him engaging in behaviour that may constitute a serious Part 5.3 offence. Her evidence was that the imposition of a selection of the conditions would weaken the effectiveness of the other conditions as well as the quality and extent of information for police, and therefore the ability of the police to protect the community.
3. All of the experts opined that Mr Pender requires an intensive level of supervision and monitoring and I am satisfied the proposed level is appropriate.
4. Condition 4 relates to medical intervention, treatment and support programs. These requirements are also reasonably necessary, and reasonably appropriate and adapted for the purpose given the risk factor of Mr Pender's mental illness. It was the opinion of the experts that Mr Pender requires ongoing medical intervention to manage his mental illness. He is already subject to a CTO made on 18 March 2022 which will expire no later than 17 March 2022. That order requires Mr Pender to take medication, attend reviews, be available for daily medication supervision and meet with his psychiatric care coordinator or delegate twice a week.
5. Condition 5 prohibits Mr Pender from purchasing possessing or using prohibited drugs, obtaining drugs unlawfully or using any drug lawfully obtained in a manner contrary to how it was subscribed. I am satisfied that these restrictions are reasonably necessary, and reasonably appropriate and adapted for the purpose given the risk factor of Mr Pender's drug problems. Dr Ellis' opinion was that Mr Pender's functional level has stabilised in custody given that he has been abstaining from substances. All the experts identified substance use as a risk factor. In this respect it is noted that there is no ability to conduct testing for substance abuse under a control order or a CTO.
6. Condition 6 requires Mr Pender to notify the AFP superintendent within three days of applying for any paid employment, volunteer work or unpaid work and to provide any details requested. I am satisfied that these are reasonably necessary conditions given the potential exposure to anti-social peers. Commander Booth's evidence was that this requirement is necessary as it ensures that the AFP is aware of any work that may equip Mr Pender with the means to commit, support or facilitate a serious Part 5.3 offence or expose him to individuals of security concern at a workplace who may influence him in this regard.
7. Condition 8 aims to regulate Mr Pender's engagement with associations, organisations and prayer groups. I am satisfied that it is reasonably necessary, and reasonably appropriate and adapted given the risk factor of Mr Pender's religious fixations and potential for antisocial peers. Non-association directions were supported by the expert evidence, and association with anti-social peers is a risk factor for recidivism. I am satisfied these conditions will assist in this regard.
8. Condition 9 prohibits Mr Pender from attending certain areas and places. I am satisfied that it is reasonably necessary, and reasonably appropriate and adapted for the purpose to place these restrictions on Mr Pender given the risk that he would seek to associate with antisocial peers he may meet online who may then seek to meet him and influence him. This restriction is supported by the expert evidence.
9. Conditions 10, 11, and 18 prohibit Mr Pender from owning certain items; producing, distributing, accessing or possessing prohibited documents. They also regulate Mr Pender's use of motor vehicles and machinery. I am satisfied that these restrictions are reasonably necessary, and reasonably appropriate and adapted for the purpose given that certain items could be used to carry out a terrorist act. These restrictions could prevent Mr Pender from acquiring information, equipment or materials that could be used to commit support or facilitate a terrorist act. The conditions include prohibition on renting or driving certain vehicles which exceed a gross vehicle mass of 2.5 tonnes.
10. Conditions 12 to 17 restrict Mr Pender's use of communication and internet services and devices. I am satisfied that they are reasonably necessary, and reasonably appropriate and adapted for the purpose given the need for police to be out of monitor Mr Pender's communications and online activities. To do so would reduce the risk that he is exposed to extremist material online. These conditions are consistent with the recommendations of Dr Ellis and Dr Dewson.
11. Condition 19 requires Mr Pender to permit the AFP superintendent to enter his premises at any reasonable time and requires Mr Pender to allow them to search him and his premises and seize any item found through such a search. I am satisfied that it is reasonably necessary, and reasonably appropriate and adapted for the purpose to impose these somewhat exceptional powers as they would address the specific risk posed by Mr Pender. The nature of his risk factors and history are such that there may be otherwise insufficient time to obtain a warrant in order to respond to an identified risk of violence.
12. Condition 20 prohibits Mr Pender from altering his name, identification and appearance. The exception to this is that he is allowed to use the name Blake Nicholas Smith. I am satisfied that it is reasonably necessary, and reasonably appropriate and adapted for the purpose as it allows police to continue to monitor Mr Pender and would prevent him from doing acts that would be less easily detected because he was not using his own name.
13. Condition 21 allows the AFP and Community Corrections to request information from Mr Pender and requires him to truthfully respond regarding his whereabouts, activities or associations. I am satisfied that this condition is reasonably necessary, and reasonably appropriate and adapted for the purpose given the evidence of Commander Booth. She concluded that condition 21, in combination with sub conditions within condition 8, will assist the AFP in mitigating Mr Pender's risk of re-offending by both allowing the AFP to get timely information on any new associates of Mr Pender, and to take prompt action, if necessary, to prohibit the association
14. Condition 22 requires Mr Pender to obey all reasonable direction of the AFP Superintendent and Community Corrections officers in connection with the implementation of conditions 1-21. I am satisfied that such a requirement is reasonably necessary, and reasonably appropriate and adapted for the purpose. This provision complies with the limitation s 105A.7B(4) such that if such a condition is imposed, the specified authority may give a direction only if satisfied that the direction is reasonable in all the circumstances to give effect to the condition, or the object of Div 105A.

Conclusion

1. I am satisfied that the statutory requirements for the making of an order have been met.
2. It was common ground that any order imposed should commence on 21 December 2022. Accordingly, I would make the following orders: 1. Pursuant to section 105A.7A(1) of the Criminal Code (Cth), the defendant is subject to an Extended Supervision Order for a period of 3 years commencing from 21 December 2022 and expiring on 20 December 2025 subject to the conditions set out in the Schedule of Conditions annexed to this judgment. 2. Access to the court's file in this proceeding is restricted such that access would be granted to a non-party only with the leave of a Judge of the court, and with prior notice to the parties so as to allow them the opportunity to be heard in respect of the application for access. 3. There is to be no disclosure of the documents or parts of documents described in the Schedule to this judgment, and the information contained in those documents or parts, other than to and between the following persons: 1. the Judge of the Court hearing the application; 2. necessary court staff, including transcription staff; 3. the plaintiff, his legal representatives and Commonwealth officers; 4. except in the case of item 10 of the Schedule - the defendant, but only in the company of his legal representatives; 5. legal representatives of the defendant, on condition that such documents not be left in the possession of the defendant; 6. experts and other witnesses in the proceedings; 7. the Independent National Security Legislation Monitor appointed under the Independent Security Legislation Monitor Act 2010 (Cth); and 8. in the case of item 9 of the Schedule - employees of Corrective Services New South Wales. 1. For the documents described at item 1 to 9 of the Schedule, Order (3) applies throughout the Commonwealth of Australia for a period of 20 years from the date of this order. 2. In relation to the document at item 10 of the Schedule, Order 5 applies throughout the Commonwealth of Australia until the Commonwealth of Australia ceases to licence the VERA-2R tool for use. 3. To the extent that Orders 5 (in respect of items 1 to 9 of the Schedule) and 6 are made under the Court Suppression and Non-Publication Orders Act 2010 (NSW), they are made on the ground specified in s8(1)(a) s 8(1)(b) and 8(1)(c) of the Act. 4. To the extent that Orders 5 (in respect of item 10 of the Schedule) and 7 are made under the Court Suppression and Non-Publication Orders Act 2010 (NSW), it is made on the ground specified in s 8(1)(a) and s 8(1)(b) of the Act. 5. The parties and their legal representatives are to return copies of all of the documents described at items 1 to 3 of the Schedule to the Summons to the Commonwealth at the conclusion of these proceedings or the conclusion of any appeal in respect of these proceedings. 6. The Court notes that: 1. The Court is satisfied of the matters mentioned in paragraphs 105A.7A(1)(b) and (c) of the Criminal Code (Cth). 2. This Extended Supervision Order relates to Blake Nicholas Pender, the defendant. 3. The defendant's lawyers may request a copy of this order.

Blake Nicholas Pender - Schedule of conditions (150987, pdf)

Amendments 21 December 2022 - [210] date amendment 14 December 2023 - [129] amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2023