Attorney General (Cth) v Pender

Supreme Court of NSW|2022-10-04|Before: Lonergan J, Cavanagh J

Judgment

The Attorney General of the Commonwealth of Australia, (the "Commonwealth"), filed a summons on 9 September 2022 seeking that an extended supervision order (ESO) be made in respect of the defendant for a period of three years pursuant to s 105A.7(1) of the Criminal Code (Cth). The Commonwealth also seeks an interim supervision order (ISO) be made under s 105A.9A(4) of 28 days length to commence on 10 October 2022, and some protective orders over documents.
Before me today on this preliminary hearing are three distinct questions or matters for determination. The first is whether protective orders should be made over the confidential items in the material tendered with the summons. I have already made those protective orders in Court on 4 October 2022 and will briefly explain why I did so at the end of this Judgment.
The second is whether the appointment of medical experts to assess the defendant is likely to materially assist the Court in its task of deciding whether to make an ESO in relation to the defendant: s 105A.6(3). I have concluded that it is and will set out my reasons for that conclusion later in this Judgment.
The third question is whether the statutory test for the making of an ISO has been met, whether an ISO should be made and whether there are reasonable grounds for the proposed conditions of the ISO. Whilst the defendant did not oppose the ISO being made, and the schedule of conditions were the subject of co-operation and agreement between counsel, I am still required to reach my own view and be satisfied of the relevant matters. For the following reasons I am of the opinion that the test has been met, and an ISO should be made with conditions in the form attached to this Judgment.

Evidence

In support of the ISO, an affidavit of Commander Sandra Booth sworn 8 September 2022 was read. Commander Booth deposed to both her experience and expertise in counter-terrorism operations and her role heading the High-Risk Terrorist Offender Team, (HRTO Team), her role in supervising various significant of counter terrorism operations since 2016, and her current role as Commander of Counter Terrorism Enduring Risk Investigation. She deposed in broad terms to the current status of control orders, ISOs and proceedings for breach relating to other terrorist offenders.
I consider that she is well-placed to provide an opinion as to the risk factors relevant to the defendant which she identified as: 1. mental illness and substance abuse; 2. propensity to impulsive and aggressive behaviour; 3. personality disorder and traits; 4. lack of support in the community; 1. high susceptibility to rapid escalation of violent behaviour.
Commander Booth also explained in her affidavit the interrelationship of the proposed conditions and the function of each of them at a practical level in addressing the defendant's risk.
I accept Commander Booth's analysis of the need for and utility of the proposed ESO (and at this stage, ISO) conditions, and that they will assist in the supervision of compliance with the defendant's significant mental health treatment needs, reduce the risk of the defendant having access to knives and weapons, assist in monitoring and control of his social media activity, prohibit him from engaging in activities or association with people which increase the likelihood of him committing a serious Part 5.3 offence, and still ensure he has some opportunity to engage positively with the community with the assistance of counselling and education.
My acceptance of Commander Booth's opinion is informed by my own review and assessment of the Statements of Facts, and in particular, the expert psychiatric and psychological opinions referred to below and their analysis of the defendant's history and serious mental illness.
Also tendered on the application were the following: a Statement of Facts dated 9 September 2022, a Statement of Agreed Facts dated 20 August 2021, and a Statement of Exculpatory Facts dated 9 September 2022. These documents provide factual background to the Part 5.3 and other offending, and the latter, extracts from the available evidence showing positive indicators for the defendant's ability to be managed under an ESO.
Expert reports were tendered from Dr Kerri Eagle, Psychiatrist dated 2 September 2021, involving an interview with the defendant on 12 August 2021 and a very comprehensive document review, 6 October 2021, 25 March 2022, 22 April 2022 and 5 August 2022, the latter specifically addressing the ESO application and efficacy of the proposed conditions.
Dr Andrew Ellis, Psychiatrist, also provided a report dated 4 September 2021, which involved an interview with the defendant on 17 August 2021, and an update on 30 March 2022. His further report of 23 April 2022 addressed the efficacy of the proposed ESO conditions.
Dr Chelsey Dewson, a Forensic Psychologist, provided a report dated 2 September 2021 which involved an interview with the defendant on 26 August 2021, and a follow up report dated 6 October 2021.
Also tendered was a report of Dr Andrew White, CMO from Justice Health, dated 27 September 2022. This report briefly outlined the defendant's background and progress in custody, noting that the defendant remains subject to a Forensic Community Treatment Order (FCTO) which expires on 17 March 2023. Dr White also outlined the process of transition into the community, and that the defendant's FCTO will automatically be varied to a Community Treatment Order, allowing ongoing involuntary community treatment under the Mental Health Act 2007 (NSW).
In support of the protective orders sought, two affidavits were read: Heather Cook affirmed 24 June 2021 and Richard Johnson 7 September 2021. They are, respectively, a Deputy Director General of ASIO, and First Assistant Secretary of the Social Cohesion Division within the Department of Home Affairs. Those affidavits outline why certain documents tendered on the application must remain confidential and so the subject of suppression orders.

The legislative scheme

The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 (Cth) was assented to on 8 December 2021. This legislation provided for amendments to the Criminal Code to allow for post-sentence ESOs to be made for terrorist offenders. Previously, only control orders or continuing detention orders were available for terrorist offenders.
The Court has power under s 105A.7A(1) to impose an ESO where: 1. an application is made in accordance with s 105A.5 for an ESO in relation to a terrorist offender; 2. after having regard to the matters in accordance with s 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 3. 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.
If an application for an ESO is made, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts (s 105A.6(1)). The hearing must be held within 28 days after the application is served on the offender (s 105A.6(2)) - in this case, on or before 10 October 2022.
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)).
The Attorney-General, the offender, or a legal representative of either party, may nominate one or more relevant experts for the purpose of s 105A.6(3A).
The relevant expert who is appointed must conduct an assessment of the risk of the offender committing a serious Part 5.3 offence, and provide a report of the expert's assessment to the Court, the Attorney-General and the offender (s 105A.6(4)).
The report may include any one or more of the matters set out in s 105A.6(7), which lists, relevantly, the risk of committing a Part 5.3 offence, the pattern of progression to date, efforts by the offender in way of treatment and rehabilitation programs, social and background factors and risk factors.
The offender must attend the assessment (s 105A.6(5)). While the offender is not required to participate in the assessment, the Court must have regard to the level of the offender's participation in the assessment (s 105A.6B(1)(b)). None of the following is admissible in evidence against the offender in criminal or civil proceedings (subject to certain exceptions): (a) the answer to a question or information given at the assessment; (b) answering a question or giving information at the assessment (s 105A.6(5A)).
An assessment of an offender conducted under s 105A.6(4)(a), and the report of the assessment, may be taken into account in proceedings to make or vary any post-sentence order or interim post-sentence order, or to review any post-sentence order, in relation to the offender (s 105A.6(9)).
The Court is required to ensure that the effect of s 105A.6(5), (5A) and (9) is explained to the offender (s 105A.6(6)). In relation to that requirement, I am of the view that it is sufficient that the defendant's solicitor undertakes to explain to the defendant the effects of s 105A.6(5), (5A) and (9). That undertaking was given to the Court through senior counsel Mr Johnston at the preliminary hearing.
Section 105A.6B sets out the mandatory considerations the Court must take into account in deciding whether s 105A.7A(1)(b) is satisfied. They include the safety of the community, expert reports, the offender's participation in assessments, report(s) from Corrective Services or similar as to the extent in which the offender can be managed in the community, any detention or rehabilitation programs, his prior compliance with ISO(s), control order(s) or parole, his history of convictions and views of the sentencing court and whether he is subject to any other order at law equivalent to a post-sentence order and if so, its conditions.
Section 105A.7B provides for conditions for ESOs (and ISOs) and lists the type of conditions that can be imposed. The test is that on the balance of probabilities, the conditions 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.
Section 105A.9A provides specifically for ISOs. The Court after the necessary hearing can make the ISO or dismiss the application. The requirements of ss 4(b) to (d) need to be met.
The defendant does not dispute for the purposes of the preliminary hearing that these requirements are met, and for the reasons that follow, I am satisfied the requirements are met.
Subsection 5 emphasises that the paramount consideration is the protection of the community from Part 5.3 offences. Subsection 6 explains that the effect of an ISO is to impose conditions, the contravention of which may be an offence. Subsection 7 prescribes the content of the order that the Court makes, should it choose to make the order and subs 8, that the total period of ISOs cannot exceed three months.
Section 105A.13 provides that the rules of evidence and procedure for civil matters apply to post-sentence order proceedings. Section 105A.16 provides that reasons for post-sentence orders must be provided to the parties and entered in the Court record, and s 105A.18(1) and (2) creates the circumstances in which the defendant remains a "terrorist offender" as defined, despite his sentence for his Part 5.3 offending having ended.

The factual statements

The statements record that the defendant has had a deprived and complex childhood with neglect, homelessness and early drug and alcohol use. He was fostered on occasion. His schooling was patchy. He lived at youth refuges intermittently. He engaged in various juvenile offending, including violent offending. As an adult, drug and alcohol abuse and offending patterns continued. Between June 2010 and June 2017, he spent 25 months in custody for various periods for various offences.
The defendant was diagnosed with schizophrenia at age 19. Since he was 15 years old he has reported paranoia, auditory and visual disturbances and hallucinations, referential delusions and grandiosity. He continued to use cannabis, alcohol, ecstasy, with methamphetamine and heroin.
Particular events of concern as an adult, prior to the 2017 offences, comprise violent threatening Facebook posts under a pseudonym in 2011, assaults and threats in the context of substance-abuse psychosis in 2012, and shocking animal cruelty offences in 2013 for which he was convicted and sentenced.
Various psychiatric diagnoses up to this time include ADHD, drug-induced psychosis, borderline personality disorder, schizophrenia and substance abuse disorder.
Conversion to Islam is said to have taken place in 2015 and was pursued in the manner outlined in the Statements of Facts. This included extremist Facebook threats and posts, text messages in the same vein, attempted conversion of a member of the public including discussion of extremist views and proposed violence and repeated contact while in custody with convicted terrorist offenders.
Short periods of parole were complicated by homelessness, drug use and mental illness.
The defendant has been in custody since June 2017 when he was arrested for the Part 5.3 offending described in par [8]. He has been regularly assessed as schizophrenic and medicated with antipsychotics. He has been noted to be "religiously fanatical" with fluctuating auditory hallucinations including ones that he says tell him to kill himself, or kill others or "kill police on sight".
Parole was refused in September 2020 because of his mental health issues, lack of insight into the significance of his mental health in reoffending, his substance-abuse history and the fact that he had yet to receive specific treatment, his significant criminal history and propensity for violence, his impulsivity and susceptibility to radicalisation, his preoccupation with religion, his lack of family and support in the community, his lack of post-release accommodation and reliance on emergency accommodation, his risk of reoffending, his security classification and his non-engagement in the "Proactive Integrated Support Model" (PRISM) program.
PRISM is deployed by Corrective Services aimed at prison inmates who have a conviction for terrorism or have been identified as at risk of radicalisation. It uses tailored intervention plans to address the psychological, social, theological and ideological needs of radicalised offenders to redirect them away from extremism and help them transition out of custody.
There were some indications that the defendant was upset about the CDO made in late 2021 and that he was disappointed and angry about it, but that he remained optimistic.
He reported auditory hallucinations still occurring in late 2021 but then a few weeks later denied them and said the medication was "working".
NDIS funding of a significant amount was approved for the defendant to use in the community upon release. He is under a Forensic Community Treatment Order that expires in March 2023.
In terms of maintained interest in religion, the defendant purports to now be interested in Judaism. His intention was expressed to convert to the Jewish faith following his release. PRISM staff notes indicated that he had requested copies of the Torah and an English/Yiddish dictionary and that he was keen to reach out to the Jewish community and to practice Judaism and have his face and neck tattoos removed, so that he could wear "normal clothing" to blend in.
The Statement of Exculpatory Facts highlight reports of more recent positive behaviour by the defendant in custody, reflecting on what he had learnt and what his intentions are, a relatively mature response to the CDO made in 2021 as well as reflection on some of his criminal behaviour as being as he terms it, "stupid" and committed when he was "high on drugs".

The expert opinions

Because the defendant was the subject of a CDO in 2021 and an application for review, I am assisted by a number of expert reports, none of which involve an interview with the defendant more recently than August 2021.

(i) Dr Eagle

Dr Eagle in her September 2021 report based on her August 2021 interview of the defendant and detailed document review, concluded that following release, the defendant would be at an elevated risk of committing a serious Part 5.3 offence in the absence of any supervision or restrictions. She assessed this risk as moderate to high, and more likely than not, based on the risk indicators identified on the VERA-2R tool as they apply to him and his risk formulation.
The risk formulation was based on his adverse childhood experiences, his previous serious behaviours of concern, his serious mental illness from late adolescence, his difficulties with emotional control and judgment, his chaotic existence involving homelessness, conflict, intoxication, incarcerations and hospitalisations, his violent behaviour towards peers, teachers, caregivers and the general public from an early age, (and its indiscriminate nature), his emotional instability, his displays of interest in violent extremism and demonstrated escalation in ideologically-motivated violent ideation between mid-2015 and the offences in June 2017. Also problematic is his difficulty with developing and sustaining stable relationships and instead, pursuing these in a religious community to meet his needs.
Dr Eagle observed that his fragmented sense of self-identity appears to have made it difficult for him to maintain a consistent religious ideology and at that point at least, he was showing a commitment to an ideology that justifies violence, but his ongoing commitment to that ideology remained at that time unclear.
Dr Eagle also referred to his identified attack targets such as police officers and judicial officers and his history of assaulting police officers, and the fact that he is highly susceptible to influence, coercion and indoctrination as risk factors. His apparent motivation to find camaraderie by associating himself with religious groups has the dual purpose of pursuing a search for meaning and camaraderie, but all of this is heightened by his complex mental health conditions, including his severe mental illness, substance use disorder, psychological vulnerabilities and personality disorder.
Overall Dr Eagle thought that although it is unlikely that he would be sufficiently organised to play a role in group-based violence, he would appear to be susceptible to engaging in violent acts that are inspired by terrorist organisations and extremist Islamic ideological beliefs.
In her March 2022 report Dr Eagle stated that on the basis of the information she had then been provided, the defendant had demonstrated improved emotional regulation skills and remained stable in his mental state on the prescribed medication, that he had improved in his capacity to manage stressors, that his illness was adequately treated given the controlled environment in custody, and that he had remained abstinent from illicit substances. She noted that he had received considerable appropriate support from services in custody with whom he had shown an increasing level of engagement, and he had expressed motivation to remain out of custody.
In her August 2022 report Dr Eagle stated that in relation to the April 2022 violent offending in custody, the incident was not, (it seemed), motivated by violent extremism or ideological views, or anything related to a serious Part 5.3 offence. Dr Eagle also observed that she could not put aside the risk, even under an intense supervision and monitoring regime under an ESO, that the defendant may breach conditions resulting in a rapid return to custody, disrupting the reintegration process.

(ii) Dr Ellis

On assessment in August 2021, Dr Ellis noted the current prescription of antipsychotic medications, as well as methadone and twice-weekly psychological counselling with PRISM staff. The defendant told him that the medication "gets rid of the voices", and that he has been in a bad mood is constantly anxious and worries that he will be held as an apostate by true believers of Islam and be beheaded, but that he has not given up Islamic beliefs. He described a number of delusional beliefs that he has when he is unwell that included that he believed that he was above everybody and smarter than everybody, that the devil impregnated his mother and that he was born a Demon, and that if he killed himself, he would come back as a ghost and haunt people.
Dr Ellis diagnosed schizophrenia evidenced by an at least 10-year history of auditory hallucinations and delusions, thought disorder and delusional beliefs and typical cognitive deficits associated with schizophrenia, particularly poverty of word generation when directed to a task and difficulties shifting between tasks. Dr Ellis also diagnosed substance use disorder, particularly alcohol, cannabis, opioids and stimulants, and possibly also post-traumatic stress disorder, and personality disorder with borderline and antisocial traits.
In his March 2022 report, Dr Ellis noted that more recent assessments based on the PRISM notes indicated positive improvements. The defendant continued to show an "emergent and unsophisticated insight" into his propensity for violence and understanding of the need for treatment and management of this. There was a more positive institutional adjustment, despite long-standing distrust of authority. Overall Dr Ellis concluded that there was less of a risk of committing a terrorist violence offence than others convicted of terror offences who hold extremist ideas more persistently than the defendant.
Based on the application of the TRAP-18 tool, the defendant did not continue to display fixation or pathological preoccupation with Islamic extremist beliefs and doctrine. He appeared to have stabilised within the prison structure, abstaining from substances and with the assistance of regular psychiatric medication. He did not currently share certain features with persons who would complete terrorist attacks.
According to the VERA-2R tool, Dr Ellis assessed that the defendant had no specific ideological goal at present, and did not currently express any intention to act on grievances such as indicating preparation to die for a cause, espouse religious or moral obligations to violence, or voice a higher political purpose in extremist acts. Dr Ellis concluded that the defendant continued to display a low number of the characteristics associated with specific terrorist-related violence and offences.
In his April 2022 report Dr Ellis was of the opinion that the risks presented by the defendant could be managed by a combination of orders and interventions in the community, and that the proposed ESO conditions were appropriate.

(iii) Dr Dewson

Dr Dewson assessed the defendant in August 2021 and also carried out a document review. She concluded that he was exposed to substance abuse and violence as a child in such a way as to cause him to normalise these things as tools to regulate his emotions as an adult. She noted that at the time of interview, the defendant identified with Judaism. She thought that although his risk currently fell in the low to moderate range because of his mental health stabilisation and prosocial supports in place, his risk profile is highly unstable, and any return to violent extremism could occur rapidly and have serious consequences for him and the community. At that point she considered a further period of detention would address his outstanding criminogenic needs and assist in progressing through classification levels and offer community protection for the duration of the order, progressing through treatment compliance, stability with accommodation, treatment to address his psychological vulnerabilities and then transitioning with assistance through NDIS with strict monitoring and external conditions.
In her follow up report dated October 2021, further information provided led to Dr Dewson indicating that in her view there was no overall change in the defendant's risk score or profile, but that there was evidence of some opportunities to assist him in establishing an offence-free future in the form of accommodation, potential income, assistance with mental health by a forensic Treatment Order (converting to a Community Treatment Order on release) and some assistance and support to explore his Aboriginality as well as significant NDIS funding.

Are further assessments likely to materially assist the Court?

Given the fluctuating nature of the applicant's pattern of religious focus, his fluctuating auditory hallucinations and his impulsivity, I am of the view that further assessments will materially assist the Court, despite the previous assessments that have been made.
The three interviews conducted by each of the (so far retained) experts all happened in August 2021, in the context of an application for a continuing detention order.
Circumstances have changed since then, including the option for supervision in the community and an emerging improvement in attitude and expressed beliefs on the part of the defendant.
It will be over 14 months since the last assessments by the time the proposed further assessments by Dr Ellis and Dr Dewson occur.
In my view those further assessments are likely to materially assist the Court, and I order that they take place.

Should an ISO be made?

Having assessed all of the material tendered, and in particular the psychiatric and psychological opinions and the views of Commander Booth, I am satisfied that on the balance of probabilities the offender poses an unacceptable risk of committing a serious Part 5.3 offence.
I am also satisfied on the balance of probabilities that each of the conditions, (and the combined effect of them), should be imposed on the offender because they are both reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk presented by the defendant.
In reaching these views, I have taken into account, as a paramount consideration, the object of Division 105A post-sentence orders, namely protection of the community from serious terrorist offences. I have had regard to the material tendered that is both admissible and responsive to the mandatory considerations set out in section 105A.6B(1).

Why were protective orders over some of the documents appropriate?

The affidavits tendered in support of the protective orders were sufficient to satisfy me that suppression is necessary in the interests of national security in respect of some of the documents, and necessary to protect the safety of the defendant from other inmates, in respect of others.
I am also satisfied, based on the affidavit of Richard Johnson, that the protection of confidentiality of the VERA-2R tool is necessary to protect the usability of the tool and the potential risk to national security that may follow from an inadequate or insufficient intervention, decision or action taken in reliance on a report prepared where an individual has been able to familiarise himself or herself with the testing methodology and provide false answers and thus invalidate the usefulness of the tool.
For these reasons and on those bases, the protective orders were made on 4 October 2022.

Orders

I make the following further orders: 1. Pursuant to s 105A.9A(4) of the Criminal Code (Cth) the defendant is subject to an interim supervision order on the conditions set out in Annexure A to this Judgment, commencing on 10 October 2022 for a period of 28 days. 2. The Court is satisfied of the matters mentioned in ss 105A.9A(4)(b)-(d) of the Criminal Code (Cth). 3. The interim supervision order at Annexure A relates to Blake Nicholas Pender, the defendant. 4. The defendant's lawyer may request a copy of this order. 5. Pursuant to s 105A.6(3) of the Criminal Code (Cth), Dr Andrew Ellis and Dr Chelsey Dewson each be appointed to conduct an assessment of the risk of the defendant committing a serious Part 5.3 offence if released into the community and provide a report of the assessment to the Court, the plaintiff and the defendant.

Attorney General (Cth) v Pender - Annexure A (165830, pdf) 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: 13 October 2022

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021(Cth)

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