Minister for Home Affairs v Pender

Criminal History

1. Senior counsel for Mr Pender accepted that he had a significant criminal history with a number of entries for violent offending which includes the Index Offence.

Prior to the Index Offence

1. The parties provided a substantial Statement of Agreed Facts ("SOAF"). The following is a summary of the criminal history of the offender prior to the index offence, derived from the SOAF: 1. in November 2006, assaulting a police officer, and maliciously destroying or damaging property; 2. in February 2007, assaulting a police officer; 3. in July 2007, stalking/intimidating intending fear of physical or mental harm, and maliciously destroying or damaging property; 4. in August 2008, common assault; 5. in April 2010, common assault and using intimidation/violence to unlawfully influence a person; 6. in August 2010, intimidating a police officer, using offensive language, and assaulting a police officer; 7. in December 2010, armed robbery with an offensive weapon; 8. in December 2011, assault occasioning actual bodily harm; 9. in October 2012, stalking and intimidation, destroying and damaging property, and assaulting a police officer in the execution of duty; 10. in July 2013, torturing and beating a dog to death; 11. as previously mentioned, in October 2015, stalking and intimidation with intent to cause fear of physical or mental harm. As mentioned, this offence was committed against Mr Brandon Trama. He was also convicted of using a carriage service to menace, harass or cause offence. This charge related to Mr Pender's use of a Facebook profile in the name of Abu Abdullah Australi to make a number of threatening posts, including a martyrdom video of himself threatening to kill Australian citizens; and 12. in September 2016, stalking and intimidation, which occurred while he was a resident at the Campbelltown Integration Support Centre.
2. I accept the submission of the plaintiff that the history of offending exhibits a willingness to target law enforcement officers or mentors of the police.
3. The plaintiff contended that the prior offending of the plaintiff exhibited "characteristics of extremism". That expression is not entirely clear, particularly in a context when the plaintiff submits that "much of Mr Pender's prior offending did not have any association with a political, religious or ideological cause". Nonetheless, I accept that aspects of his offending in October 2015 do have the hallmarks of fanaticism of a broad religious character and, together with his offending with respect to law enforcement officials would be relevant to an assessment as to the risk of committing another terrorism offence, noting, in that respect, that it was only the index offences, to which I will shortly turn, that constituted a serious Pt 5.3 offence (the Court is required to consider the index offence pursuant to s 105A.8(1)(g) of the Criminal Code).
4. As to the October 2015 offending mentioned above, I note that on 14 October 2015, Mr Pender was sentenced to nine months' imprisonment for using a carriage service to threaten to kill, contrary to s 474.15 of the Criminal Code.
5. On the same day, he was sentenced to 12 months' imprisonment for stalking and intimidating with intent to cause fear or physical or mental harm. That conviction arose from a confrontation with his foster parents' son, in which Mr Pender made the following threats: "you better watch your backs otherwise you'll end up with a knife in it"; "you and your girlfriend are both dead. I'll see to that"; "I'll bomb your house with everyone inside, you and your family are going to die"; and "while you're burning I will laugh. Me and my mates will be back around lunch time to complete the task".
6. The prior offending history is relevant to the Court's assessment of the "safety and protection of the community" under s 105A.8(1)(a), and any other information as to the risk of the offender committing a serious Pt 5.3 offence under s 105A.8(1)(i).
7. Mr Pender's history of offending is relevant to the Court's assessment for that reason and for the following additional reasons: 1. The history demonstrates that Mr Pender's conduct could satisfy an element of a serious Pt 5.3 offence, namely, an action or threat of action that causes serious physical harm or damage property. Mr Pender's history of offending demonstrates the following: 1. Mr Pender has been charged with and convicted as an adult of over 15 offences from the period 2010 to the present. From 2012 to 2017, the offending has been increasingly violent in form. His offences have included torturing and beating a dog to death, stalking and intimidation, assault (including against police), armed robbery and malicious damage to property. 2. Mr Pender has a propensity for violence, or at least using the threat of violence, against those known to him as well as strangers, and on one occasion against an animal (the torture of a dog). These incidents demonstrate the risk Mr Pender poses to the community generally. 3. Mr Pender's offending behaviour generally has not involved detailed planning, but rather has been unpredictable (for example, in the case of the index offence, it was precipitated by coming into contact with police). That makes the risk he poses more difficult to manage. 1. Mr Pender's offending has persisted over time despite the imposition of various punishments, including custodial sentences. Thus, it is a proper basis for the concern as to whether the current sentence of imprisonment is likely to have any significant deterrent effect in terms of his future offending. In sentencing Mr Pender for the index offence, Harrison J noted that Mr Pender had "not been effectively discouraged from reoffending by his previous sentences": Pender. 2. Mr Pender has often committed offences very soon after being released from prison while still on parole. Thus, Mr Pender has offended even while subject to supervision, including conditions of parole such as requirements to undertake drug tests and counselling, although it was properly accepted by the plaintiff that the Control Orders are more stringent to his conditions on parole.

The Index Offence

1. As noted Mr Pender pleaded guilty of possessing a theory connected with preparation for a terrorist act and knowing of the connection to a terrorist act contrary to s 101.4(1) of the Criminal Code and threatening a judicial odder contrary to s 326(1)(b) of the Crimes Act.
2. The circumstances of that offending were set out in the SOAF.
3. On the morning of the offence, Mr Pender stole a mobile phone from a fellow customer at an internet café and at 1.41am used the phone to download a picture of the Shahada flag. Shahada is the testimony given by Muslims declaring the oneness (tawhid) of God (Allah) and the acceptance of Muhammad as God's messenger. The Shahada is used on flags of Islamic nations (such as Saudi Arabia), but has also been used on flags of Jihadist organisations such as the Taliban and ISIS and there are instances of a Shahada flag being associated with terrorists and terror-related incidents SOAF.
4. At about 1.50am, NSW Police officers (Constables Lund, Formosa, Vlaar and Curtin) were on duty near the corner of Elizabeth and Devonshire Streets, Surry Hills. Constables Lund and Curtin observed Mr Pender walking southbound on Elizabeth Street. He appeared to be intoxicated and was muttering to himself in a foreign language.
5. Constable Lund was speaking with a person who had been stopped on suspicion of committing an offence. She heard a male voice behind her speaking in a different language. She turned to see Mr Pender standing about half a metre behind her, with his arms positioned in a monkey grip.
6. Constable Curtin stepped between Mr Pender and Constables Formosa and Lund, concerned that Mr Pender would harm them, and introduced himself to Mr Pender. Mr Pender responded by saying "Fuck off cunt, I've got nothing on me". Mr Pender maintained an aggressive manner during the exchange with Constable Curtin and took steps towards Constable Curtin still with his hands in a monkey grip.
7. Constable Curtin asked Mr Pender if he could separate his hands. Mr Pender did so, but placed his hands behind his back and appeared to obtain an item from his right jumper sleeve.
8. When Constable Curtin asked what Mr Pender was grabbing, Mr Pender replied "fuck off". Constable Curtin saw what he thought was a knife protruding from Mr Pender's right sleeve. He grabbed Mr Pender's right wrist and wrestled a 22.5cm knife from Mr Pender's hand and threw it behind him.
9. As Constable Curtin was restraining Mr Pender, Mr Pender made comments in Arabic and English, including in English "fuck off; if I still had the knife I'd fucking kill you all" and "fucking stab every one of you dogs in the throat". After Mr Pender was handcuffed he said "the proudest thing a man can do is behead a cop" and continued to shout at the constables in Arabic.
10. While later being held in custody at Surry Hills Police Station, Mr Pender threatened police officers that he would rape their wives and decapitate them before exclaiming "Allahu Akbar". Mr Pender remarked to Constable Curtin "You know Man Monis? I am better than him, he was just the start, he should have killed you all" and "when I get out I am go [sic] into the city and make myself a martyr and kill as many people as I can". He made a hand gesture simulating stabbing Constable Curtin in the upper body and head area, and then pointed his left index finger skywards. This gesture is the tawhid salute, which has become synonymous with the ISIS terrorist group.
11. Mr Pender was held in custody overnight and made further threats to police officers, including "when I get out of here I am going to fucking kill you. I am the Mujahidin" and "Monis was nothing, wait to you see what I am going to do. I am going to enter martyrdom on the streets of Sydney".
12. At about 2.35pm on 14 June 2017, Mr Pender was brought before Magistrate Keogh at the Central Local Court, appearing via audio visual link. During the proceedings he audibly made such comments as "Allahu Akbar" and "Long live Abu Bakar Al Baghdadi". He made continuous gestures smiling, winking, pointing to people in attendance and making a slitting motion across his throat, and pretending to load a gun and fire at the court. He made the tawhid gesture a number of times.
13. As the Magistrate gave reasons for refusing bail, Mr Pender imitated the sound of gunfire before saying: "You're all fuckin' dead. I swear to god (wahyet allah). If I had it my way, 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". After being refused bail he 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]".
14. Mr Pender was initially housed at the Metropolitan Remand and Reception Centre at Silverwater ("MRRC"), and in January 2018 was transferred to the High Risk Management Correctional Centre in Goulburn ("HRMCC"). In February 2020 he was transferred to the Mental Health Screening United in the MRRC, and in May 2020 was transferred to the Hamden Mental Health Step-Down Unit within that Centre. This is a mental health unit which provides enhanced mental health care to patients following acute episodes of mental illness. It is staffed by psychiatrists, psychologists, mental health nurses and a clinical nurse consultant, and offers supervised medication as routine practice, support to improve the offender's social environment skills, and access to and treatment by specialised staff.

Views of the Sentencing Court (Index Offences)

1. This matter requires consideration under s 105A.8(1)(h).
2. Harrison J in his remarks on sentence was expressly mindful of the fact that he was sentencing Mr Pender for a terrorism offence and an offence of threatening a judicial officer (see Pender). His Honour, when sentencing Mr Pender, had the benefit of observing the defendant give evidence as well as reviewing all of the mental health evidence.
3. Harrison J noted (at [37]) that it was uncontroversially recognised on both sides that Mr Pender has for long suffered from serious and enduring mental health problems of one form or another.
4. His Honour also noted (at [37]) that in that context it was "perhaps a small but not insignificant fact" that he was actually examined and assessed, on the very day of his arrest by Mr Glenn Chapman a mental health nurse. Harrison J also considered the evidence of Dr Sarah-Jane Spencer, Dr Chew and Professor Greenberg. His Honour ultimately concluded (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. [emphasis added]
5. His Honour then added (at [47]): …there can be little doubt that Mr Pender's offending conduct was associated with a condition of schizophrenia or schizoaffective disorder and that in either case he was prone to disinhibited and impulsive behaviour and psychomotor agitation. In my view, having regard to my understanding of the medical evidence in this case, Mr Pender's actions were significantly caused by or associated with his entrenched mental condition.
6. Harrison J expressly considered the issue of whether Mr Pender had resiled from his support for the so-called Islamic state (at [49]-[55]). His Honour correctly approached this issue on the basis that Mr Pender bore the onus on the balance of probabilities of establishing that he has resiled from or discarded radical views (at [50]). Harrison J had the benefit of assessing the Mr Pender's sworn evidence (at [52]-[53]). His Honour ultimately found (at [54]-[55]): 54 Mr Pender has a prominent facial tattoo apparently inspired by the Christian religion. He has converted to Islam twice and renounced it twice. He now wishes to embrace the Jewish religion. Mr Pender gave evidence of these things on oath and was cross-examined. My very distinct impression is that Mr Pender's adherence to Islam has been questionable in the past but is non-existent at present. His plainly offensive and violent religious pronouncements are in my assessment more a function of a state of confused suggestibility than of any genuine or devout adherence to misguided fundamentalism. It is also difficult to separate these things from the ever present spectre of his mental illness. Mr Pender's prospects of rehabilitation and the associated question of the likelihood of him reoffending are in my view more reliably informed by his mental health and his criminal history than the particular circumstances or details of the conduct for which he is to be sentenced. 55 In this last respect it is not in my opinion without some significance that, as the Crown perhaps unintentionally emphasised, Mr Pender's history of violence and aggression, as evidenced by his criminal record, is of long standing and conspicuously pre-dates by many years the emergence of any obvious or suggested attraction to or adoption of the hysterical extremes of radical Islam. In my opinion, Mr Pender's so-called Islamic rhetoric was a manifestation of his propensity for violence rather than his violence being an expression of an entrenched or enduring religious fanaticism. I consider that the prospect of Mr Pender committing further offences of the type with which I am presently dealing is quite limited. I am less optimistic about Mr Pender's general ability to overcome his difficulties with impulsive and violent behaviour having regard to his indifferent criminal history and his mental health. [emphasis added]
7. Ultimately, Harrison J assessed the objective seriousness of both offences as lying towards the lower end of the scale (at [57]-[59]). His Honour added (at [64]): I recognise and accept without further comment that Mr Pender has pleaded guilty to what is nominally and in terms a terrorist offence. Having regard to the medical evidence in this case and to the view I have formed about Mr Pender's mental state at all relevant times on 14 June 2017, there is much to be said for the proposition that a readily available and alternative view of the true nature of Mr Pender's criminality is provided by the offences listed on the s 166 certificate: that is to say, offending quarantined from an association or connection with his clearly unacceptable pronouncements of so-called radical, violent or fundamental Islamic propaganda. It is critically important in performing the difficult task of sentencing, when it is possible and appropriate to do so, to discriminate between individuals who would wish harm upon the Australian community and those whose words and actions are in all probability and to a significant extent the product of a disordered mind.
8. Finally, it is noted, that although his Honour, as required by statute, advised Mr Pender that an application for a CDO may be made under s 105A of the Criminal Code he added (at [67]): The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 amended Part 5.3 of the Criminal Code to establish a scheme for the continuing detention of high risk terrorist offenders who pose an unacceptable risk to the community at the conclusion of their custodial sentence. Although in the circumstances of this case it seems difficult to conceive of it occurring, I am required by s 105A.23 of the Criminal Code to warn Mr Pender that it is at least possible that an application may be made under Division 105A of the Criminal Code for a continuing detention order at the end of his sentence. [emphasis added]

Expert Evidence

1. Section 105A.8(1)(b) of the Criminal Code requires the Court to consider the reports of the court-appointed experts, and Mr Pender's level of participation in the assessment by the expert.
2. As earlier mentioned, three experts have presented reports to the court: Dr Kerri Eagle, Dr Chelsey Dewson and Dr Andrew Ellis. Each of them conducted an assessment with Mr Pender and furnished reports as to their findings.
3. It may be noted that the plaintiff does not rely upon any other assessment conducted by a relevant expert pursuant to s 105A.8(1)(c). The expert reports also extend to considerations arising under s 105A.8(1)(d).

Dr Ellis

1. Dr Ellis provided to the Court a report dated the 4 September 2021 and a supplementary report dated 6 October 2021.
2. Dr Ellis dealt with "identifying data", discussing in that context Mr Pender's time in custody as follows: He has been in custody since arrest in 2017. He is currently housed in the Hamden place of detention for prisoners with mental illness. He has been in this location for the past 18 months in a single cell. He does not work and does not undertake any education. He sees a psychologist from the PRISM service two times each week. He talks about his beliefs and offences with them. He sees the psychiatry medical officer Dr White. He is prescribed the anti-psychotic medication olanzapine 20 mg at night, a long acting injection of antipsychotic medication aripiprazole 400 mg monthly, a mood stabiliser sodium valproate 400 mg twice daily and opioid substitution medication methadone 85 mg daily. He is subject to a forensic community treatment order to ensure medication compliance. He does not receive any visitors. He said that he has stopped writing letters to other inmates. He has written to people outside of custody but has not had his letters replied to.
3. Dr Ellis identified that, prior to entering custody, he had lived a few days with friends in Lane Cove before "sleeping rough in Martin Place". He had no stable accommodation for 2 to 3 years. He had been non-compliant with his medication for psychiatric problems at least one month before his arrest.
4. Mr Pender told Dr Ellis he had not experienced voices "for at least a few weeks". However, he described his mood as "shit, really bad", is "sad at how his life has turned out" and "worries he will be held as an apostate by true believers of Islam and beheaded".
5. He admitted to Dr Ellis that "at one point he had a morbid curiosity and obsession with Isis and Al Qaeda" and at "one point subscribed to the beliefs of these groups, but that now he does not" and that "people who believe in terrorism are now his enemy". He said at the time of the offence he was obsessed with ISIS because he was "foolish, young and dumb" but that he "now wants peace" and could not explain why he behaved the way he did towards the police or the magistrate and "wishes it never happen[ed]". He said he no longer has any affinity for terrorism and does not believe in martyrdom. He said that upon release he would engage in counselling, education and vocational training, and would take his medications and abstain from drugs and submit to drug testing.
6. At page 13 of his report, Dr Ellis provided a diagnosis to which I have earlier referenced. He met the criteria for substance use disorder. His traumatic experience was consistent with PTSD that had intersected with development of his temperament and character (at development stage) such that he met the criteria for personality disorder.
7. As to schizophrenia, he opined: He would meet diagnostic criteria for schizophrenia. This is evidenced by at least a 10 year history of auditory hallucinations and delusions, recorded by multiple clinicians. He presents with at least residual thought disorder when discussing delusional beliefs. It is possible that some residual delusional beliefs persist. He shows typical cognitive deficits associated with schizophrenia, particularly a poverty of word generation when directed to a task and difficulties shifting between tasks. There is no evidence he is malingering or exaggerating his symptoms, he does not respond to questions to elicit this presentation and his overall functional level is consistent with the condition. Although his symptoms have likely been exacerbated by significant substance use, they have persisted in custody despite a relative lack of access to substances and treatment with antipsychotic medication. Therefore substances are not the sole cause of his presentation. Given he has residual symptoms of thought disorder and possibly delusions, despite treatment with two antipsychotic medications he would be considered to have a treatment resistant condition. [emphasis added]
8. Under the heading "Re Risk of Violence" Dr Ellis deals with some historical factors: There is a history of problems with physical violence across his life by self report and criminal record. This is as history of other antisocial behaviour across his life by self report and criminal record. There is a history of problems in relationships with no stable intimate, family or acquaintance relationships. There is a history of problems with employment, supporting himself by criminal activity. He has a diagnosis of schizophrenia, a major mental illness. He has a diagnosis of personality disorder, including a diagnosis of antisocial personality which has a greater association with violence. He likely has intermittent attitudes supportive of violence across his lifespan (evidenced by threatening violence in his criminal charges). He espouses non violent ideas now. His carrying of weapons is likely in relationship to persecutory delusional symptoms and habitual homelessness. He has re-offended on previous conditional supervised release and attracted custodial charges. There is evidence of exposure to traumatic events in childhood. This indicates a high loading of historical risk factors associated with violence in the longer term, greater than the general prison population of violent offenders or psychiatric patients.
9. As to present circumstances, Dr Ellis opined: He currently displays an emergent and unsophisticated insight into his propensity for violence and understanding of need for treatment and management of this. This is evolving in the context of a more stable mental state and limited access to rehabilitation. He does indicate an intention to accept appropriate treatment, and his current function in custody indicates compliance with this. He does not overtly express any current attitudes supportive of violence. He shows moderate instability of mental state with no prominent delusions, hallucinations or gross mood disturbance. He does show residual thought disorder, and possibly wavering insight into delusions. His stress management techniques have not been able to be assessed, and his past decompensation and prior impulsivity in stressful situations is the best marker that this area remains problematic. This indicates a high loading of modifiable risk factors. He has a longstanding distrust of authority, however his current institutional adjustment has been more positive. There is an ongoing potential difficulty engaging with professional services and plans in the community. Conflict with authority would be the most readily identified source of potential stress and it is unclear how he would manage this without support. This indicates a need for professional services and plans to contain the potential for violence. His current living circumstances in prison expose him to other persons with unstable mental states and criminal behaviours. An identified disability supported community placement, with supervision from community corrections and treatment from mental health and addictions services would be required to match the underlying risks presented. A consideration of the type of possible violent offence should be considered in an estimation of risk. … 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 for violent offending 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. This risk of general violence would be higher than a theoretical average prisoner or psychiatric patient. Likewise the type of violence related to terrorism would only be potential when engaged with extremist literature, online materials or associating with persons who espoused terror that he had incorporated into his personal grievances and delusional beliefs at the time. Specific treatment and supervision would likely reduce this risk. Owing to the specificity of this risk, he would be considered at overall less risk of committing a terrorist violent offence than other persons convicted of terror related offences released from custody. [emphasis added]
10. As to the risk of "Defined Terrorism Offences", Dr Ellis opined: The risk of acts of extremist-terrorist related violence has been less studied than general interpersonal violence. This is not surprising as the phenomena is rare, and not readily amenable to academic review. Terror related violence tends toward intended or targeted violence, in contrast to the more common mode of violence which is typically impulsive or reactive. Any evaluation of terror related violence relies more on an investigative template, rather than a group level predictive tool as the outcome of interest is too rare to prognosticate. The TRAP-18 provides such a template based on patterns displayed by islamic, right wing and single issues terrorists who completed targeted violence. The VERA-2R is a similar instrument and has been applied in this case by other practitioners. Changes in my opinion regarding this scale relate my advantage of his interview at the time of administration, and differences in his risk profile over time with observation by others. According to the TRAP scheme Mr Pender no longer has a fixation or pathological preoccupation with islamic extremist beliefs and related doctrine. He had deteriorated in function prior to his incarceration, being homeless, supporting himself by crime and neglecting supervision and treatment. This functional level appears to have stabilised with the structure of prison, abstinence from substances and regular administration of psychiatric medication. He no longer expresses any view that justifies violence, and attributes his past endorsement of these views as part of a decompensation in mental state and intoxication. He does have a personal grievance to the justice system and the state in general, and cites past experiences in custody where he feels treated unfairly. This mode of thinking is not presently dominant, and he accepts assistance from state authorities. He has a significant prior record of general criminal behaviour. He does not appear to currently seek formally joining groups who are involved in terror related offences. He did seek association when he was in custody, and in a less stable mental state. He attributes this in part with needing to fit in with the culture of the prison, rather than an internal motivation to join these groups. He previously used virtual communities, to broadcast extremist material. This did not appear to extend to mutual exchange of ideas, information or joint planning. He has a major mental disorder (schizophrenia). He does not currently share the following features with persons who have completed terrorist attacks. While he has threatened an authority figure (magistrate) in the index offences, he has made no specific threats towards authority figures now. He shows no strong identification with the warrior mentality of terror groups. There are no "try outs" or novel acts in preparation for a larger attack. He has not had a sudden increase in energy, nor leaked to third parties an intent to cause an attack. He shows no last resort or time imperative to act on his prior threat. He has had no sudden changes in his thinking and emotion. He currently has realistic occupational goals. He does not display creative or innovative tactical thinking. He has not shown research or planning to implement an attack, and there is no evidence of this currently. He has not previously formed a stable intimate relationship, but is able to form some attachments to women. According to the VERA 2R scheme in terms of belief, attitudes and ideology he has no specific ideological goal at present. He does appear to have previously taken up an Islamic extremist (albeit idiosyncratic and related to his delusional beliefs) view of the world at the time his mental state was in acute psychosis with delusions, hallucinations, thought disorder and intoxication with substances. The adoption of a new and frightful identity likely also fit with his unstable sense of self and personality. The views were congruent with his situation at the time, feeling generally persecuted. He has since retracted this in the context of a more stable mental state. He has now adopted another religion, immersing himself in details rather than seeing the overall congruence with his identity and relationship to society. This adoption of a new religious identity is not accompanied by violent extremist beliefs. He holds ambivalent views about Australian justice agencies, seeing his treatment as unfair, but also appreciating the support he receives. To a lesser extent he feels alienated from society in general, owing to his disadvantaged upbringing, and report of suffering abuse. In terms of social context and intention, he does not currently express an intention to act upon his grievances. There was no information presented to indicate he has current contacts with violent extremists, by mail or otherwise. He indicated he would not seek out material or people who espoused violent or Islamic extremist beliefs, or any other extremist ideology. He has not previously not engaged in group activity, and if he did his mental illness likely would mean this would be uncoordinated. He has not expressed any formed plans for extremist action. He does not now indicate he is prepared to die for any cause, and in the past statements along this line were coupled with bizarre delusional beliefs. In terms of history, action and capacity he has a history of threats and carrying knives. He has a history of violent convictions. There is no information he has had specific paramilitary training. There is no evidence he could connect with funding sources or access to family or close associates who are involved in violent extremism. In terms of commitment and motivation he may engage in responsive grievance fuelled angry responses should circumstances where he feels thwarted arise. He appears isolated and with unstable identity, and may seek extremist literature if he reverts to a state where he feels persecuted, grandiose or hyper-religious in line with psychotic symptoms. At these times he could have feel a higher purpose or moral authority, in an idiosyncratic fashion. He does not expressly espouse any religious or moral obligations to violence, or voice a higher political purpose in extremist acts currently. He is still seeking a stable personal identity, however currently this is taking the form of a non-violent approach. He does not belong to groups, but might seek them out to assuage loneliness. He likely craves excitement and adventure, with a rich fantasy life in contrast to his more bleak reality. At this time he is engaged with realistic goals. In terms of protective factors he has engaged with psychological programs to assist him in reinterpreting past beliefs. He voices a retraction of his past statements regarding violence and the concept of an enemy, attributing them to an unstable mental state. He has no significant family and community supports, but is prepared to accept professional supports. In terms of additional indicators has breached conditional orders. He has a history of juvenile convictions, family violence, problems with his upbringing and schooling. He has been diagnosed with a personality disorder. He has been diagnosed as suffering a major mental illness. He has a hsiotyr [history] suicide attempts. In considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence Mr Pender now displays a low number of the characteristics associated with terrorist related violence and offences. His mental illness takes the form of bizarre, religious and grandiose delusions which may align with terrorist propaganda at times. His personality style is one that focusses on grievance and threat, making it difficult to trust others implicitly, and renders impulsive violence in response to stress more likely. He would most likely be at risk of extremist violence, starting with threats or use of internet posts if he becomes isolated again, defaults from treatment, is under stress and decompensated to a point where suffering delusions and using substances. The risk factors that are present relate to his mental illness, personality disorder, substance use, background of disadvantage and the attendant chaotic lifestyle that has accompanied this profile. [emphasis added]
11. Dr Ellis then turned to the management of risk. As to that subject generally Dr Ellis opined: I am of the opinion that the risks presented can be managed by a combination of community orders and interventions. There is no evidence that extended time in custody reduces offending once on release. Programs aimed at reducing risk of reoffending within custody generally show limited effects once on release. His risk factors are such that community based interventions can address them. [emphasis added]
12. As to the particular aspects of managing risk in the community Dr Ellis stated: His tenure in the community under supervision in the past, however has been poor. Services will need to be comprehensive and coordinated to allow for the desistance from previous behaviour. Management in the community will pose challenges, particularly the ability to follow the implicit rules and structure, and to be authentic with supervising and treating staff. He may interact superficially rather than engage with supervising staff. Monitoring of compliance will be required to assist. If he is non-compliant then interventions can occur to target specific risk behaviours he is engaging in, before progression to more deteriorated states as in the past. There is some evidence group psychological programs have a modest effect in reducing violence in a given population, but not at the level of the individual participant. This evidence is not at the level where strong medical recommendations can be made. Psychological programs designed to specifically reduce violent extremist behaviour have yet to be significantly evaluated. Nonetheless he is engaging with these programs, and they can form a structure around which other interventions can be more readily coordinated. Psychiatric case management and medication under a community treatment order is recommended. He has only emerging insight into his illness, and likely displays residual symptoms. His current medication regime is not orthodox. He would likely benefit from a combination of clozapine (medication for treatment resistant schizophrenia) and a long acting injection, rather than the current prescription. This should include counselling directed at understanding symptoms and insight, and biological measures of treatment compliance. Owing to his limited insights and previous default from treatment he should be subject to a community treatment order to both monitor his compliance and ensure the participation of a public community health service. [emphasis added]
13. Dr Ellis specifically dealt with the management of risk in the light of supervision arrangements.
14. In that respect, Dr Ellis stated that the risk recommendations were contingent on stable accommodation being available and supervision orders in the form of control orders, a weapons and firearms prohibition and CTO. Dr Ellis added the need for "exclusion zones", monitoring of telecommunications and social media services and non-association directions. A "curfew" would assist in the stability of lifestyle and GPS monitoring may motivate to attend upon risk management and rehabilitation goals.
15. Further, Dr Ellis observed (at 138H): Schizophrenia, substance use disorders and personality disorders are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. The highest risk for recidivist offending is the first two years after release from custody. Major factors in revising his risk would be compliance with medication, substance use abstinence and establishing a personal meaningful routine in life, coupled with avoidance of situations which may tax his ability to cope with stress. This could be established if he remains under supervision with supports in place.

Dr Eagle

1. Dr Eagle produced two reports, the first dated 2 September 2021 (the "first Eagle report") and the second dated 6 October 2021 (the "second Eagle report").
2. After a detailed review of clinical psychiatric assessment including demographic information, current presentation, past psychiatric history and various records such as clinical, educational, child protection records, FACS Casework Files and NSW Corrective Services Material, Dr Ellis then provided a diagnosis for Mr Pender which as earlier been discussed in this judgment.
3. Dr Eagle then discussed structural risk assessment, the challenges of risk assessment, particularly in relation to violent extremism in the structural professional judgment entitled VERA 2R.
4. In this light, Dr Eagle then turned her attention to various factors bearing upon risk assessment, commencing with the heading "Beliefs-Attitudes-Ideology". Under that heading, Dr Eagle stated that commitment to an ideology that justifies violence rated as "moderate-high". As to "perceived grievances and/or perceived injustice" and "Hostility to national identity" the assessment was low to moderate. Under the later heading Dr Eagle observed (at 441.1.6.3): Mr Pender has expressed hostility towards Australia and Australians. He does not appear to maintain any pervasive or enduring hostility with the national identity of Australia that is prominent in his presentation. However, his sense of identity is unstable, from a psychiatric perspective, and appears to be highly changeable depending on the circumstances.
5. The area of "Lack of empathy and understanding for those outside one's own group" the assessment was low. However, Dr Eagle observed (at 441.1.7.1 and 441.1.7.2): Mr Pender has difficulty demonstrating a general capacity for empathy. His view of others and the world appears predominantly ego-centric. However, this appears to be an individual perspective rather than a group perspective. He does not appear to have an us or them mentality in relation to his religious beliefs. Mr Pender has been described as lacking empathy from an early age [PDR.0009.0001.0988] and this has been evidenced in his repeated offending behaviour towards others. He has also engaged in alleged acts of cruelty including towards an animal [PDR.0003.0001.0053]. He has expressed threats towards those who have cared for him including Mr and Mrs Trama [PDR.0002.0001.0980]. He appears to have a limited capacity to appreciate the impact of his behaviour on others, and expressions of remorse appear to be superficial in nature. He does not clearly demonstrate a lack of empathy or understanding towards those outside his cultural or religious group, but rather displays a general lack of empathy or understanding for all others.
6. "Target for attack", "personal contact with violent extremists" and "Expressed intention to commit acts of violent extremism" each have the end "moderate" next to the topic.
7. Two areas which are described as "high" are "violent criminal history" and "motivated by camaraderie, group belonging".
8. Dr Eagle assessed as "moderate to high", "Motivated by search for meaning and significance in life". Dr Eagle stated (at 441.4.8.1): Mr Pender does appear to be motivated to join religious groups, and participate in extremist violent acts as part of a search for meaning or significance in life, reflecting his unstable sense of self. He has said he started being interested in religion because he believed in God and wanted to know what the "truth was" [PDR.0001.0005.0139]. His progress from Christianity, to Islam to Judaism, and an expressed interest in Buddhism, indicates a search for meaning and relevance.
9. Dr Eagle opined that Mr Pender's level of risk will be significantly affected by his mental health conditions. Dr Eagle noted that Mr Pender has a severe mental illness (schizophrenia) that is complicated by a severe substance use disorder and a severe personality disorder. 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, and impulse control and emotional regulation skills would be further impaired. Under these circumstances he would be at a heightened risk of acting on any violent ideation justified by ideological beliefs, and/or increasingly susceptible to indoctrination.
10. Dr Eagle noted that Mr Pender has received treatment in custody: injectable antipsychotic mediation, oral antipsychotic medication and mood stabilisers, as well as opioid substitution therapy (methadone). She noted he has been subject to a forensic CTO and housed in the mental health unit at the Hamden Mental Health Step-Down Unit. Despite this, he has continued to engage periodically in threats of self-harm and reported intermittent auditory hallucinations. He was suspected of having diverted his methadone dose to other inmates in mid-2021 and as noted above was returned to the Risk Intervention Team cell in June 2021.
11. Dr Eagle also noted that Mr Pender has previously been non-compliant with community mental health treatment and follow up, and that upon release his follow up is likely to continue to be complicated by emotional instability, interpersonal deficits, illicit substance use and changeable insight. She noted that a CTO can provide mental health services with the option of admitting Mr Pender to a psychiatric hospital if he does not comply with treatment, but mental health services are unable to routinely supervise oral medications in the community and it is currently unclear whether an injectable antipsychotic medication would be sufficient to maintain the stability of Mr Pender's illness even in the context of abstinence from alcohol and illicit substances. She opined that, even if compliant with mental health treatment, Mr Pender would invariably deteriorate in his mental illness in the context of any relapse into substance use. She said that "use of illicit substances, regardless of compliance with treatment, would de-stabilise Mr Pender's illness precipitating a psychotic episode and would likely increase his risk of engaging in violence, including violence motivat[ed] by an extreme ideological cause". She said that mental health services are not able to prevent, monitor or control substance use under the mental health legislation framework.
12. As to the risk of committing a serious Pt 5.3 offence (and the level of that risk) and the nature and likely circumstance of any offending Dr Eagle opined (at 448.4.1. and 448.4.2.): I am of the view that 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. There is no current empirical basis to provide statistical information regarding the size of that risk or a valid quantification of the risk. Based on my assessment and formulation of the risk and the nature of Mr Pender's risk indicators, his risk of engaging in a serious Part 5.3 offence would be moderate to high, and more likely than not, in the community in the absence of any supervision or control order. The risk indicators identified on the VERA 2R tool, as they apply to Mr Pender, and his risk formulation, are discussed in detail in the risk assessment section above. Mr Pender would appear to be at most risk of: 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; causing harm to a police officer, or member of the Australian public, with a knife, justified by an extreme Islamic ideology, or to advance an extreme Islamic ideological cause (for instance, to send to the Islamic State); and/or at-tempting to recruit a person(s) to join or participate in activities inspired by a terrorist organisation (Islamic State or ISIS).
13. As to factors that might affect the likelihood of Mr Pender committing a serious Pt 5.3 offence by virtue of mental illness or disorder, Dr Eagle opined: Mr Pender's mental illnesses and mental disorders are likely to significantly affect the likelihood of him committing a serious Part 5.3 offence. As discussed in the diagnostic formulation section of this report, Mr Pender has a severe mental illness (schizophrenia) that is complicated by a severe substance use disorder, and a severe personality disorder. As a result of these mental health conditions, Mr Pender has substantial deficits in his emotional regulation skills, his judgment, his interpersonal skills and his overall level of function. During exacerbations of his mental illness, and/or during periods of intoxication, 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. [emphasis added]
14. Dr Eagle was asked to consider the following question (at 448.4.3.): (ii) in relation to any such mental illness or mental disorder, any treatment currently administered to, or treatment which may be administered to, Mr Pender;
15. Dr Eagle's response was as follows: Mr Pender has been receiving treatment in custody through Justice Health. At the time of this assessment, he was treated with an injectable antipsychotic medication (aripiprazole), oral antipsychotic and mood stabilising medication and an opioid substitution therapy (methadone). He was placed in a mental health pod at Hamden Block, MRRC. He had continued to engage periodically in threats of self harm and report intermittent auditory hallucinations. He had been reported to be potentially diverting his methadone dose. He had been returned to a RIT cell on at least one occasion in June 2021. He was subject to a forensic CTO. His presentation reflected the complexity of his mental illness due to his other mental health conditions. Mr Pender has previously been non-compliant with community mental health treatment and follow up. His mental health treatment and follow up is likely to continue to be complicated by his emotional instability, inter-personal deficits, illicit substance use, and changeable insight. A CTO can provide mental health services with the option of admitting Mr Pender to an acute psychiatric hospital if he does not comply with treatment, assuming they can locate him. Mental health services are unable to routinely supervise oral medications in the community, and at this stage it is not apparent that an injectable antipsychotic medication would be sufficient to maintain the stability of Mr Pender's illness even in the context of abstinence from alcohol and illicit substances. Mr Pender would invariably deteriorate in his mental illness in the context of a relapse into substance use. Mr Pender would require assertive mental health follow up in the community, ideally with the benefit of stable accommodation and a mandated treatment framework, with the benefit of additional supports (such as NDIS and/or CLS, Community Living Supports). Mental health services are not able to prevent, monitor or control substance use under a mental health legislation framework.
16. She was asked if obligations, prohibition restrictions, other than a CDO, may reduce the risk of Mr Pender committing a serious Pt 5.3 offence, including a contract order to which risk, to which she replied (at 448.5.1-448.5.4): 448.5.1. Mr Pender's risk of committing a Part 5.3 offence would potentially be reduced if he were directed to engage with community mental health treatment, was able to access stable accommodation and access additional supports as required (for instance, NDIS). His risk would also likely be reduced by the imposition of: restrictions regarding his access to and contact with pro criminal and/or violent extremist associates and to areas where he may have contact with violent extremists; prohibition on the consumption of alcohol and the use of illicit substances; a requirement that he engage in psychological and drug health interventions aimed at monitoring and treating pro-violent cognitions, factors associated with his use of illicit substances, his emotional instability and other identified maladaptive psychological processes; restrictions on his access to social media and internet; and a prohibition regarding carrying or possessing weapons. Mr Pender would benefit, from a risk management perspective, from obligations that would increase Mr Pender's prospect of engaging in employment or education (for instance, a direction to participate in education programs), integrate into the community, and maintain a stable prosocial lifestyle. Electronic monitoring does not prevent offending, but may enable monitoring of compliance with other conditions. 448.5.2. Restrictions and prohibitions, even if legally mandated, are alone un-able to prevent behaviour that may be considered Part 5.3 offences. The effectiveness of supervision regimes in preventing offending is arguably reduced in relation to persons with severe mental health disorders due to the limited potential effect of deterrence in that population. Mr Pender has a severe mental illness, difficulty with emotional regulation and poor impulse control, all of which would reduce the likely deterrent effect of a control order in certain circumstances. Restrictions and prohibitions may reduce access to the means of offending, and encourage or facilitate engagement in appropriate treatments, psychological interventions and social interventions (for instance, stable accommodation, education and employment). The extent to which such a supervision regime is likely to be effective remains dependent to some degree on the motivation of the individual to comply, the stability of his illness, and the additional supports that are made available to him. 448.5.3. Mr Pender expressed a motivation to engage in programs and supervision regimes in the community, and has engaged in a psychological rehabilitation program (PRISM) in custody. His ability to engage in psychological programs in the community and apply the skills or strategies learnt (internalising change) is untested, but will remain untested in a correctional environment. 448.5.4. Mr Pender has never engaged in mental health treatment or follow up, based on the information available, and he has led a chaotic unstable lifestyle throughout his life. His interpersonal deficits, psychological vulnerabilities and behaviours are likely to present an ongoing barrier to effective engagement with mental health services. He has continued to report symptoms of mental illness, display emotional instability and demonstrate problems with compliance in custody, despite the controlled environment of the correctional facility. Mr Pender's risk of disengagement and non-compliance with mental health treatment, and substance use in the community, would appear to remain high, particularly in the absence of a comprehensive release plan for reintegration, stable housing and assertive mental health treatment in the community. Legal restrictions, stable housing, psychological and social supports and mandated access to mental health treatment in the community, delivered with effective multiagency collaboration, would likely reduce his risk of engaging in an act of violent extremism. [emphasis added]
17. Dr Eagle issued the second Eagle report after receiving the Affidavit of Rachel Terry of 10 September 2021 and Claire Simpson of 22 September 2021.
18. In the second Eagle report, Dr Eagle opined (at 270(ii)): 5. The detailed affidavit of Ms Rachel Terry provides information regarding Mr Pender's proposed supported accommodation in the community, additional NDIS supports and mental health follow up. Ms Terry also confirmed that Mr Pender had consented to participated in the NSW Engagement and Support Program (ESP). The affidavit of Ms Claire Stimpson references Mr Pender's NDIS funding package. 6. The proposed plans for Mr Pender's accommodation, community supports, and mental health treatment and monitoring would appear to be reasonable in the circumstances. In my experience, it would be unlikely that Mr Pender could access more support than is being proposed. He will require a methadone prescriber in the community to be identified prior to release, and appropriate arrangements made for transfer of his methadone prescription. This would ideally initially be through a drug health facility (rather than a private provider such as a chemist). He will require the allocation of a care coordinator at Marrickville community health centre that can liaise with relevant stakeholders and provide assertive mental health monitoring, follow up and support. The Justice Health Community Transitions Team (CTT) should be able to facilitate a smooth transition to community mental health services. 7. Mr Pender should be mandated to avoid the use of illicit substances or alcohol and would benefit from being required to participate in urine drug monitoring to provide an external incentive to avoiding illicit substance and alcohol use. He would also benefit from being directed to participate in drug and alcohol rehabilitation programs. The stability of his mental illness will largely depend on his ability to remain abstinent from illicit substances and alcohol and remain compliant with treatment. He has a history of rapidly disengaging from mental health services in the context of illicit substance and alcohol use. [emphasis added]

Dr Dewson

1. Dr Dewson provided four reports to the Court; the first dated 16 May 2021, the second on 30 June 2021, the third report which in part adopted her earlier reports dated 2 September 2021, and a fourth report dated 6 October 2021. The following refers to the report dated 2 September 2021, unless otherwise specified.
2. In Dr Dewson's report, she recorded that Mr Pender was "polite, easily engaged and appeared to be forthcoming with information", that he "frequently asked for feedback on his engagement with the interview" and that it "appears he was motivated to participate willingly": at [6]. She noted that Mr Pender fatigued during the interview, and psychometric testing was abandoned, but Dr Dewson considered she had sufficient information from the interview and documented sources to complete her assessment: at [6].
3. Dr Dewson noted that Mr Pender's experiences during childhood have "potentially caused him to form unhelpful attitudes towards authority, an unstable sense of self, poor attachment, and the normalisation of criminal behaviour (including drug use and violence)": at [13]. Mr Pender conceded "he has no current support in the community" (at [19]) and is no longer in contact with his parents, siblings, or former foster parents (the Tramas): at [20].
4. She noted that Mr Pender denied any intent to use illicit substances, and was willing to engage in alcohol and other drugs counselling, remain compliant with methadone and, if needed, self-refer to a rehabilitation program should a relapse occur: at [22]. Mr Pender said his priorities for release were to "obtain and maintain suitable accommodation, maintain abstinence from drugs and alcohol, and stay on prescribed medication": at [35]. She said Mr Pender, reflecting on the index offence, felt "regret" for his "self-inflicted" actions, said he was carrying the knife for self-protection and was trying to walk away from the police when the events occurred, and described his actions as "silly": at [31].
5. Dr Dewson opined that Mr Pender is at a very high risk of general reoffending, a high risk of violent reoffending, and a low-moderate risk of violent extremism: at [5]. As to the potential for violent extremism, Dr Dewson described Mr Pender as "somewhat fixated on religion" (at [59]). She noted that Mr Pender now identifies as a Jew and strongly denied holding any religious views which justifies the use of violence: at [60]. She noted that Mr Pender has penned an unsolicited letter to Ms Bridget Namoa, knowing she was convicted for terrorism related offences and has previously "expressed his intent to die for his cause" and is "susceptible to influence": at [61]. Mr Pender denied associating with known terrorists outside of the gaol context, stating his interest in Islam was self-taught: at [62]. He also claimed he contacted Ms Namoa in the hope that it would alleviate threats being made against him for leaving the Islamic faith: at [63]. Dr Dewson noted that Mr Pender denied strongly being vulnerable to indoctrination and control by extremists but in Dr Dewson's opinion "this likely reflects insight deficits on his behalf": at [64].
6. Dr Dewson commented on the operation of the CTO as follows: As mentioned earlier, Mr Pender had a CTO issued on 19/03/2021 and this is scheduled to expire on 18/03/2022. This will assist Mr Pender by providing him external motivation and support for medication compliance upon release.
7. Dr Dewson gives the following "summary of risk assessments (general, violent and violent extremism)" (at [73]): Taking into consideration evidence available, Mr Pender presented with a very high risk of general offending, a high risk of violent offending and a low-moderate risk of violent extremism. As highlighted in my original report, however, "there are occasions such as this, where a simple risk label appears insufficient to communicate an individual's risk profile and the likelihood of them engaging in acts of violent extremism in the future". Rather, Mr Pender's risk profile appears unstable and whilst I have assessed him as low-moderate risk of violent extremism, this is on the basis of remaining sober, engaging with the ESP and maintaining compliance with his psychotropic medication. To reiterate the statements in my previous report, "There is a very real risk, however, that (Mr Pender) could return to substance use upon release and/or become non-compliant with his psychotropic medication regime. This could see him deteriorate rapidly, as evident by the increased presence of psychological symptoms (command hallucinations etc.), impaired judgement whilst intoxicated, unchallenged thoughts related to violence and difficulties regulating his behaviour. In this case, it is possible that he could become further fixated on religious beliefs and justify the use of violence".
8. Dr Dewson's conclusion regarding risk commenced at [77] and continued to [78] as follows: Mr Pender is a 30-year-old male who experienced a deprived and unstable childhood. He was exposed to substance abuse and violence in a manner that caused him to normalize these concepts and likely became tools to regulate his emotions as an adult. Whilst he described his intent to achieve and maintain abstinence in the future, his capacity to manage his risk of offending will likely be dependent upon it. Mr Pender has failed to develop skills to become a contributing member of society, resulting in him being socially isolated at times. For him to reintegrate into the community effectively, it will be important for Mr Pender to form prosocial relationships and, most importantly, form a sense of belonging. Mr Pender has a long history of mental illness, for which he is currently compliant with a medication regime in custody. Whilst medication compliant, Mr Pender continues to experience some breakthrough symptoms, however, his condition is largely stable. In the absence of medication, however, there is a real possibility that Mr Pender's symptoms will be exacerbated, likely increasing his risk of reoffending. It appears that he has developed religious fixation, partly because it provides him with a sense of mastery and in part because it offers him a sense of belonging and acceptance. Acknowledging that Mr Pender now identifies with Judaism, for him to manage his risk moving forward, it will be important for him to challenge his attitudes towards religion and find ways to adhere to his faith in more moderated ways. As stated in my initial report of Mr Pender (17/05/2021), "The complex interplay between mental health, personality characteristics, substance use and environmental factors has resulted in Mr Pender being susceptible to indoctrination(particularly when psychologically unwell and/or socially isolated). Coupled with his history of violence and general dysregulation, Mr Pender has become involved in accessing violent extremist material and holding extremist views in the past". Whilst he was previously assessed as moderate risk of violent extremism, I have assessed Mr Pender's risk to currently fall in the low-moderate range. This reduction is on account of his mental health stabilization and the prosocial supports in place for him within the community. To reiterate, however, Mr Pender's risk profile is highly unstable and any return to violent extremism could occur rapidly and have serious consequences for Mr Pender and the community. As noted above, Mr Pender has been assessed on this occurrence as low-moderate risk of engaging in violent extremism. The VERA-2R manual does not specifically define the final risk judgements (i.e., 'low', 'moderate', 'high' risk) and it does not associate risk levels with any numerical scores or predictive statistics. Rather, the label is used as a means to communicate an overall summary of the individual, having considered (and communicated) the significant risk domains, risk indicators and protective indicators. [emphasis added]
9. At [79] of her report Dr Dewson comments on the prospect of Mr Pender utilising community support. A further period of detention would allow Mr Pender to address his outstanding criminogenic needs (alcohol and other drug usage ("AOD") and violence) and progress through the classification levels. This would also offer community protection for the duration of the order. Release to the community would capitalize on the community supports currently available to Mr Pender at present (such as accommodation) and hopefully promote help-seeking behaviours (such as through ESP and voluntary community programs). In order for Mr Pender to manage this within the community, he would need to engage in AOD intervention with the aim to remain sober, continue treatment compliance through a CTO, achieve stability within his accommodation, address his psychological vulnerabilities, participate willingly and meaningfully with ESP, utilize services and supports on offer to him through NDIS and be provided with strict monitoring and external conditions. There remains a real possibility, however, that Mr Pender will not utilize voluntary services on offer to him and would therefore remain (in some ways) an untreated offender.
10. At [84] of her report, Dr Dewson assesses risk of Mr Pender committing a serious offence as follows: Mr Pender has been considered low-moderate risk of committing a terrorist offence. Within his assessment, I have identified potential scenarios which reflect possible offences, on the basis of his risk profile. Given the scenarios developed, it is my opinion that offending on Mr Pender's behalf could meet the threshold of a serious Part 5.3 offence.
11. As to the implications of mental health, in this respect, Dr Dewson opined: 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.
12. Dr Dewson identified a number of outstanding treatment needs for Mr Pender including substance abuse, emotional dysregulation, poorly formed sense of self and violent tendencies: at [86(V)].
13. Dr Dewson said at [86(VI)]: Mr Pender presented as being religiously fixated. This, coupled with violent tendencies, and lack of personal identity renders Mr Pender vulnerable to indoctrination regardless of the religion he follows at the time. As a result of his personality and his unmet need for belonging, Mr Pender appears susceptible to influence, and therefore, his risk profile appears highly unstable. Further, his fluctuating beliefs may make it difficult to monitor Mr Pender's progress in the community and to track any setbacks, should this occur.
14. Dr Dewson was asked the following further question (at 87): If the material briefed to you is sufficient to express such an opinion, are there any measures other than a CDO (e.g. obligations, prohibitions or restrictions imposed on Mr Pender) that would reduce the risk of Mr Pender committing a serious part 5.3 offence? If so, please identify those measures and describe how and to what extent, they would be effective in reducing that risk. Please comment on:
15. Her answer was as follows (at 87): Ordinarily, after an offender has addressed their criminogenic needs in custody, I would advocate for them to be released into the supervision of Community Corrections before the expiration of their sentence. This would serve as a source of support for the individual (i.e., for them to utilise the services available to them through CSNSW) and allow for their progress and integration into the community to be closely monitored (for community safety). Unfortunately, in the case of Mr Pender, this will not be possible. As such, it is my opinion that a Control Order could be imposed to provide Mr Pender with a supervisory structure, which would externally manage his risks and notify the authorities in the event that Mr Pender's risk profile changes or risk become imminent. Whilst this would provide a level of external management, Mr Pender would still have outstanding treatment needs and risk mitigation would be reliant on his motivation for engagement in voluntary programs. [emphasis added]
16. Dr Dewson opined (at 87X): A further period of detention could provide Mr Pender with an additional period of psychological stability (through medication compliance), in the context of which he could address his outstanding treatment needs. A further period of detention, however, will not cure Mr Pender's condition or likely have any significant impact on his psychological functioning long term. At this stage, Mr Pender reports to be treatment compliant and presented in the interview with positive attitudes towards help-seeking behaviours. A further period of incarceration could fatigue Mr Pender further, potentially having an adverse impact on his attitudes towards medication compliance and therapeutic intervention more generally (including participation in the ESP). A further period of detention may allow Mr Pender to progress through the classification system and manage his risks in less restrictive environments. It is unclear, however, if the support available to Mr Pender at this time (such as through United for Care) would be available to Mr Pender in the future. A further period of confinement will unlikely assist Mr Pender to form prosocial peer relationships, but rather, may expose him to individuals and situations where his apparent vulnerabilities could be exploited.
17. As mentioned, Dr Dewson issued a further report on 6 October 2021, after receipt of affidavits of Ms Terry and Ms Stimpson.
18. In this report, Ms Dewson opined (at 14): Whilst some these factors (such as accommodation and funding) aren't directly associated with Mr Pender's risk of violent extremism (i.e., aren't explicit items of theVERA-2R etc.), they are related to the risk factor 'support from the community for non-violence'. Further, these will likely contribute to his ability to manage his mental health, retain stable accommodation, and maintain sobriety in the future. As such, these supports will likely have a positive impact on Mr Pender's ability to manage his risk in the future. There is no overall change to Mr Pender's risk score or profile (such as hypothetical risk scenarios), however, it appears that he is being provided adequate opportunities to establish an offence free future.

Concurrent Expert Evidence

1. The oral evidence of the expert witnesses was received as concurrent evidence.
2. To maintain his mental health in the community, it will be important for Mr Pender to continue regular administration of psychiatric medication and to continue to abstain from alcohol and illicit drugs: T22.48 -T23.13. If regular administration of psychiatric medication and continued abstinence from alcohol and drugs are not maintained, it is highly likely that Mr Pender's mental state will deteriorate; "it's as close to inevitable as you can say with psychiatric certainty": T23.17-35.
3. Dr Ellis described that deterioration as follows (T38.45 -T39.19): I think there are three domains where his mental function is likely to deteriorate. The first would be in terms of what psychiatrists call psychosis. This is where this is probably the most severe area of deterioration, where he loses contact with reality. Begins to hallucinate. Begins to believe facts that are patently untrue, and is highly agitated by those beliefs, and likely to impulsively act upon them. And so in the past, that has been delusions of a religious nature, or a persecutor in nature, and hallucinations, hearing spoken voices that he attributes to supernatural entities. I think another area that he could deteriorate is, of course, in his substance use. That he could feel stressed and physically and psychologically crave substances. And when he's in a state of uncertainty or conflict with others, or - or simply feeling bored or under-stimulated, might crave the use of substances and start to then engage in behaviours to seek those substances out. This then compounds because the substances are likely to bring on the psychosis. I think the other area of deterioration is in terms of his personality function and his re-experience of trauma within that personality function, in that if he feels relationships that he is in are conflictual or confusing for him, that he can become more emotionally dysregulated and more impulsive, and then more likely to be - experience negative emotional states like anger or despair, and to - and to act upon those emotional states, and he's likely to experience those emotions in a more - in a - in a stronger way than ordinary people would, because he has never had secure and stable relationships to learn to moderate his emotions himself in that way. So I think that there's a number of domains that interact with each other, where his mental state could deteriorate.
4. Dr Eagle added (T39.23-34): I would only add just with the benefit of listening to Dr Ellis, that Mr Pender, he's also likely as he deteriorates to become more disorganised in his behaviour. He is likely to deteriorate then as a result in his level of function. And this in the past seems to have resulted in sort of a rapid disengagement from all of his support services, his mental health supports, his other supports, and, you know, an abandonment, potentially, of his accommodation, and - and those things that have been set up for him. And that again results in this cycle that we 've seen in the past, where he's using substances, very unwell with acute psychotic symptoms, and functioning at a very low level, essentially homeless, disengaged from all of his supports. And in that - in - in that context, he's - he's very risky to others.
5. Dr Dewson added: I would agree that in terms of deterioration in his mental health, substance use, and personality, I think it's a - a good point that Dr Eagle has brought up in terms of community supports. While that isn't necessarily identified within the VERA-2R, for example, as a risk factor for recidivistic behaviour, I think in this case it is quite an important factor.
6. According to Dr Ellis, Mr Pender's substance use disorder is presently in remission, but with the caveat that that is in a controlled environment: T24.23 - T25.9. Dr Eagle does not necessarily agree it is in remission, noting he is still having a lot of the symptoms of severe substance use disorder: T25.40-45. His substance use problem has been intractable when in the community: T25.33-35.
7. If Mr Pender were released from detention, and even if he were to continue his medical treatment, if he relapsed into alcohol and drug use his mental condition would highly likely deteriorate: T26.6-9. His deterioration could be rapid; a matter of weeks or days: T26.16-40.
8. Mr Pender's delusions involve antagonism to police and religious ideation: T24.6-16.
9. According to Dr Ellis, Mr Pender is preoccupied with religion, although not in a way that is related to his delusional beliefs: T27.14. Dr Dewson is of the view that he is fixated on religion, although not necessarily any particular religion because it tends to fluctuate: T27.27-30. This is due to a desire for belonging or identity: T27.32-35, T35.48-50, T36.30-31. Dr Eagle describes it as a significant preoccupation, if not an obsessional interest: T27.39-40.
10. Even though Mr Pender is not presently following Islamic extremist beliefs, there is a real risk this may change in the future, and the greatest risk would be if he relapsed into psychosis with delusional beliefs: T28.27-28. Then there would be a risk of him reverting to his pathological preoccupation with religion, with extremist elements or violence alongside that: T28.29-32. Mr Pender's account of his religious beliefs is unstable and changeable: T28.50 - T29.4, T29.48-49. It is difficult to know when he is being deceptive: T29.29-30, T29.50 - T30.2.
11. Mr Pender is susceptible to the influence of others and has poor insight into his susceptibility to influence from others: T30.4-20.
12. Mr Pender is highly susceptible to developing violent extremist beliefs again in the future, in the right circumstances, namely, default on mental health treatment, substance use, and associating with those who would seek to influence him: T30.25-44.
13. His risk profile is highly unstable: T31.24-47.
14. While he currently denounces violence, he has a history of committing violent offences and that is much more important in assessing his risk than what he currently says about violence: T31.12-36. The fact that he currently denounces violence is of little weight: T32.45-T33.5.
15. Stress is one circumstance that may cause Mr Pender's condition to deteriorate, and police seeking to enforce a control order with him may be a source of stress which could lead to a deterioration in his condition: T33.13 - T34.4. He could form persecutory beliefs about officers attempting to enforce a control order: T34.5. There is a real risk that if his mental state deteriorates he could target police officers: T34.14-46.
16. While Mr Pender's relationship with corrective services officers in custody is generally appropriate at present, it is difficult to generalise from that. It is possible this engagement could continue in the community while under the supervision of a control order, but it is also possible it will not particularly if his mental health deteriorates or he relapses into substance use: T37.19-50. His personality style is one that does not deal well with conflict or authority, and it may be a source of stress dealing with those supervising him in the community: T38.10-11.
17. A control order cannot require Mr Pender to participate in counselling unless he agrees to do so, and its effectiveness is therefore dependent on Mr Pender's willingness to participate: T43.27-37. HERZFELD: Now, I'd like you to assume that a control order cannot require Mr Pender to participate in counselling, such as drug counselling, unless he agrees to participate. Do you understand that? WITNESS ELLIS: Yes. Well, no one can participate in counselling unless they agree to, yeah. HERZFELD: And on that assumption, you'd agree that the effectiveness of such a control is dependent on Mr Pender's willingness to participate? WITNESS ELLIS: Yes.
18. On the expert evidence, Mr Pender's history suggests there is a substantial risk he will decline to do so. T43.39 - T44.5.
19. The following exchange occurred in cross-examination in that respect: HERZFELD: And Mr Pender's history suggests there is a substantial risk that he will decline to do so. Do you agree? WITNESS ELLIS: I think that there's a - there - there's a risk that he'll decline or drop out of treatment, yes. HERZFELD: And it's a substantial risk. Do you agree? WITNESS ELLIS: Yes. HERZFELD: Dr Eagle, do you have any comment on that? WITNESS EAGLE: Yes, I don't have. I agree with Dr Ellis' opinion on that. HERZFELD: And Dr Dewson? WITNESS DEWSON: I also agree.
20. While there are NDIS supports in place, engagement with those is also voluntary, and again the expert evidence is that there is a substantial risk Mr Pender will not engage: T44.7-40. The following exchange with senior counsel for Mr Pender is relevant in that respect. HERZFELD: Now, Dr Ellis, you know that there are various supports in the form of NDIS funding and options available to Mr Pender at the place he is to reside. Is that right? WITNESS ELLIS: Yes, I was provided with the NDIS information. HERZFELD: The effectiveness of the NDIS supports will depend on Mr Pender's willingness to engage with these voluntary services. Do you agree? WITNESS ELLIS: Yes. HERZFELD: Again, based on his history, there's a substantial risk that he will not do so. Do you agree? WITNESS ELLIS: Yes, there is, yeah. HERZFELD: Dr Eagle, do you have any comment on that? WITNESS EAGLE: No, I think I mentioned that in my report, that NDIS services are involuntary - voluntary, sorry - voluntary services only. So sorry. HERZFELD: Dr Dewson, do you also agree? WITNESS DEWSON: I do agree. I think I've also commented in my report that ultimately his participation in a lot of things that have been identified in the release plans would ultimately be up to him to decide to participate, and there could be a risk of him not participating in them. HERZFELD: Are these the kinds of supports to which you were referring earlier when you mentioned the importance of supports, even though they're not requirement or criteria? WITNESS DEWSON: Yes, that - yes, that's correct.
21. Dr Ellis and Dr Dewson agreed with Dr Eagle's opinion that Mr Pender's risk of disengagement, non-compliance with mental health treatment and substance use in the community would appear to remain high.
22. The passage of the transcript in that respect was as follows: HERZFELD: And if you turn over the page to page 89, do you see in that first paragraph of the page, about halfway through the paragraph, Dr Eagle says Mr Pender's risk, disengagement, non-compliance with mental health treatment and substance use in the community would appear to remain high. Do you see that? WITNESS ELLIS: Yes. HERZFELD: You agree with that, don't you? WITNESS ELLIS: Yes. I - I think that his past history serves to support that. Yes. HERZFELD: Dr Dewson, you also agree with that. WITNESS DEWSON: Yes, I do.
23. These answers related to Dr Eagles opinion at 448.5.4 set out earlier in this judgment.
24. Her opinion was that this was particularly the case in the absence of a comprehensive plan for reintegration, stable housing and assertive mental health treatment in the community (see T52.28), However, it was not only confined to those circumstances. Another factor was the existence of "effective multiagency collaboration" (as mentioned further below).
25. Dr Ellis accepted that the inability to impose a "schedule" would somewhat reduce his confidence Mr Pender could be managed in the community under a control order: T50.24-44.
26. The measures referred to in Dr Ellis' report at the bottom of p 20 over to the top of p 21 to be included in a control order are effectively only if Mr Pender complies with them, and there is a real risk that he will not, especially (but not only) if affected by drugs or alcohol or his mental condition deteriorates: T51.1-34.
27. While a control order can contribute to managing Mr Pender's risk, it is important that the police are able to communicate with mental health services, but such services have privacy and confidentiality obligations and so Mr Pender would need to consent to the sharing of such information: T56.16-26. Mr Pender can potentially be managed if the ESP program, NDIS supports, control order, and the mental health team all work together collaboratively, but whether that will happen remains to be seen: T58.3-10.
28. Dr Eagle opined that if there was a sharing of information to authorities (and there were difficulties with mental health services liaising with police in that regard due to privacy issues), any deterioration would come to attention quickly (at T56.12-26): JOHNSTON: Dr Eagle, would you accept that the suite of controls can work in conjunction with the community treatment order to assist in the monitoring or compliance of Mr Pender? WITNESS EAGLE: Yes, I would accept that with - with the proviso that I think it's really important that those implementing or overseeing the control order are able to communicate with mental health services. Mental health services obviously have confidentiality and privacy obligations that they are very focused on, and find it difficult sometimes to liaise with police. But if that's overcome and Mr Pender consents to sharing of information and - and cooperation between the services, then I do think that control order can provide quite a lot of benefit in reducing his risk. And I'd also say that I do think that if Mr Pender did deteriorate or did relapse in his substance use, he would come to attention quite quickly, particularly with a level of monitoring by police.
29. Drs Dewson and Ellis also agreed with these statements.
30. It is notable that no such suite of measures as now in place was available in the past - see T57.34.
31. In response to a question from counsel for Mr Pender about Mr Pender's ability to be managed in the community the following evidence was given (at 57.20): JOHNSTON: … Do you remain of the opinion that the risks presented by Mr Pender can be managed by this combination of orders and interventions? WITNESS ELLIS: Yes, I do. I think it's - and I think that they've - they've - you know, since I've completed the report, they've firmed up a bit in terms of the exact nature of what they are and - and when I was writing the report, it's a bit more theoretical. But the - I think that - yes, I mean, I'd agree that the - like, relying solely on the Mental Health Act to manage him would be - would prove very challenging. I think that having - having the control order bolsters that and I think the - having that supported accommodation, the disability supports and the mental health supports, and - and the ESP supports working together, I think given the profile that he presents with, I think that that is able to match his risk and again - the other thing is that there's a - there's a regime of monitoring around that because I don't think anyone can guarantee that he will, despite his best intentions and his stating that he's going to comply with all these - all these measures, he's never been able to do that in the past, that there's a system around that of monitoring that can then intervene more rapidly than, perhaps, in the past when there hasn't been such a comprehensive suite of both supervisory and therapeutic interventions available to him. JOHNSTON: Dr Dewson, would you accept that the risk can be managed by proposed combination of orders and interventions in the community? WITNESS DEWSON: Certainly at the time of my first set of reports, I was not of that opinion. Since there's been more information provided in relation to the supports, I'm more optimistic that he may be able to manage his risk in the community, however, I still remain somewhat sceptical. JOHNSTON: Dr Eagle? WITNESS EAGLE: I think that - I think that Mr Pender can potentially be managed if ESP program, the NDIS supports, the control order, and the mental health team all work together collaboratively. I think that that is to be seen at the moment. I also have some concerns as to Mr Pender's ability to transition in the community without relapsing into substance use or disengaging from mental health or any of these supports. However, I would say that I can't really see any further steps that could be taken at this stage, or any further benefit in Mr Pender staying in custody. I think that he needs to be trialled in the community with as many supports as are reasonably available to really be able to know whether the supports are enough, and to be able to refine the level of support, and refine the plan, and for the community team to get to know him, and for people to be able to respond to his needs. And - and these - these plans can be flexible to some degree and may be modified in response to how he's adjusting.
32. Whether the risk posed by Mr Pender's release into the community is unacceptable is not a matter for psychiatric opinion: T58.19-27

Any Report addressing whether Mr Pender can reasonably and practicably be managed in the community

1. I have mentioned various aspects of the evidence of the independent experts above dealing with this question. I shall return to other aspects of this consideration below when considering, inter alia, the Control Orders, CTO and NDIS.

CSNSW Pre-release Report April 2020

1. CSNSW prepared a Pre-release report dated 29 April 2020 arranged in relation to consideration of Mr Pender's parole. The report noted, that at the time of the index offence Mr Pender felt "depressed", was not taking his methadone consistently and had ceased taking his anti-psychotic medication.
2. It noted that Mr Pender did not have support from any family or friends in the community. It noted that Mr Pender had "shown limited insight into the significance of his non-compliance with mental health treatment in re-offending" and that 'while he identifies treatment as vital for his well-being, he appears to rely on his current good intentions as sufficient to guarantee he will not re-offend". It noted that Mr Pender "appears to be highly suggestible and practiced at identifying what he thinks others want to hear".
3. While Mr Pender was presently compliant with his methadone program, he had had "instances of compulsive non-compliance with his medication in custody. It was observed that Mr Pender was willing to comply with his CTO, undertake interventions in relation to his mental health, alcohol and other drug abuse issues and violence. While Mr Pender had been recorded as being polite and compliant while in custody, "his impulsive behaviour raises concern of his ability to self-manage; consequences of his impulsive behaviour being high". It stated that Mr Pender had been "subject to numerous periods of supervision with a largely unsatisfactory response due to non-compliance, illicit substance use and re-offending".
4. It stated that Mr Pender "has been assessed at a high risk of reoffending" according to the Level of Service Inventory - Revised (LSI-R). The report recommended particular parole conditions, including electronic monitoring, a schedule of activities, a condition prohibiting him from using prohibited drugs or substances and requiring him to undertake drug and alcohol testing, a condition requiring him to undertake and maintain alcohol and other drug programs, a condition requiring compliance with directions of his mental health team, a condition prohibiting the possession of a prohibited weapon, and a condition prohibiting him from visiting a place of worship without express prior approval of his supervising officer. The report recommended that Mr Pender be released on parole, with the report noting that his circumstances were unlikely to change significantly prior to his sentence expiry in September 2021, and that having a period of supervision may support his transition into the community.

Countering Violent Extremism Assessment Report September 2020

1. An Assessment Report was prepared by Countering Violent Extremism Programs in CSNSW in September 2020. It stated that Mr Pender had expressed regret regarding the threats he made during his most recent offending and reiterated that he did not have sympathy for terror groups: at [40]. However, he was reluctant to respond to questions regarding his past ideological beliefs, stating "I have to be really careful about what I say, I have parole coming up": at [40]. He reported that there is no justification for his past violent or extremist behaviours and expressed remorse for the suffering he caused: at [40]. He said he wanted to have nothing to do with Islam or extremism.
2. The report assessed Mr Pender as a high risk of general offending on LSI-R5 (at [60]), a medium risk of violent offending on VRS6 (at [63]) and in the low-moderate range of violent-extremism related offending. The report observed (at [88]): Mr Pender continues to lack community supports, and his family have historically had minimal involvement or influence on his behaviour. He has an extensive history of breaching parole conditions, becoming homeless and non-compliant with medication after relapse into substance misuse. There is a history of failure of rehabilitation programs, and he has previously been deemed ineligible due to a history of self-harm and violence.
3. The report noted at [89] that Mr Pender had undertaken a reinterpretation of his faith and ideology, and expressed a willingness to engage in treatment. It continued (at [89]): However, he is yet to engage meaningfully in developing realistic plans following release, and is yet to actively engage in interventions targeting his criminogenic needs associated with violent extremism. This leaves him vulnerable to previous patterns of behaviour upon release, and the increased risk presented by an uncontained environment. While his risk of violent extremism is currently low-moderate, this is due to his mental health and addiction being well managed in custody. He will require a comprehensive package of care coordinated between multiple services, including those involved with Opioid Substitution Therapy (OST), regular psychiatric review, psychological treatment, and case management.

CSNSW Pre-release Report April 2021

1. CSNSW prepared a Pre-release report dated 30 April 2021 in relation to the upcoming consideration of parole. It noted that, since the previous Pre-release report of April 2020, Mr Pender still had had no contact with parents, other family members or foster parents, had had no visits during his incarceration and lacked any ongoing supports in the community. In relation to his previous fundamentalist views and comments, he reported "being unsure why his actions and views at the time would have been understood as violent and extremist".
2. The report stated that given the nature of his offending and statements regarding an ongoing desire to belong "he remains susceptible to influence by others". It was noted that Mr Pender had made comments about doing "whatever I need to do" to get out of custody. The report also stated that "given the nature of Mr Pender's offending being connected with his significant desire to belong, susceptibility to influence, drug use and mental health; without enough community supports and proper treatment pathways, he would continue to be a high risk to the community".
3. It was recommended that parole be refused, including because of Mr Pender's lack of accommodation, lack of support from family or friends, the fact that a PRISM intervention plan had yet to be finalised, and an NDIS plan had not been approved. His fluctuating commitment to drug treatment, ongoing preoccupation with religion and ongoing impulsivity was a source of concern. If parole were to be granted, the report recommended conditions be imposed for: electronic monitoring; to attend alcohol and other drug programs or counselling if directed; to comply with directions of the mental health team; to prohibit possession of any prohibited weapon; and to prohibit visiting places of worship without prior approval.

"PRISM"

1. PRISM is an enhanced case management model for offenders identified as promoting or being at risk of radicalisation or violent extremism and is designed to assist offenders to divert, disengage or desist from violent extremism.
2. On 15 March 2021, Mr Pender engaged with the PRISM Program. CSNSW have noted that participation in PRISM is a criminogenic need for Mr Pender. Mr Pender was subsequently entered into the program from around this date.
3. On 8 April 2021, case notes indicated that there was potential for Mr Pender to be referred to the ESP in the future.
4. On 5 May 2021, Mr Pender signed a PRISM intervention plan, within which he agreed to work towards the goals following over the coming six months: 1. develop insight into offending; 2. develop pro-social activities; 3. improve coping and interpersonal skills; and 4. develop a pro-social identity and belonging.
5. The strategies Mr Pender agreed upon included: 1. broadening my interests - balancing my religion with other interests; 2. improving my ability to cope with tough situations; 3. understanding my need for belonging and vulnerability to influence.
6. Mr Pender's involvement in this program was voluntary and has included regular sessions with the PRISM psychologists, Services and Programs Officer and Religious Support Officer. These sessions have included release planning regarding post sentence accommodation and supports.
7. CSNSW case notes for the period 5 May 2021 to 4 August 2021 indicated that Mr Pender has participated in the program and has been cooperative in his interactions with corrections staff.
8. Dr Dewson noted that Mr Pender "reflected positively on his PRISM engagement", but that while Mr Pender "presented with an intellectual understanding of the concepts learned within PRISM, his ability to resonate with these on an emotional and practical level, is less clear": Dewson Report, [34].
9. Nonetheless, officers within the program confirmed that Mr Pender had been working towards the goals of the treatment plan.

Evaluate Question Understand Investigate and Succeed ("EQUIPS")

1. Mr Pender has not undertaken any drug or alcohol programs while in custody. On 6 January 2017, Mr Pender was referred to the EQUIPS Addiction Foundation program. However, this referral was abandoned due to his placement in the restrictive units or mental health units where the program was not available. His access to the program and the High Intensity Program Unit was impeded due to his ongoing mental health presentation and treatment, his uncertain release date and classification. Dr Dewson noted, Mr Pender's substance use issues are an "outstanding" treatment need: at [86(V)].

Engagement and Support ("ESP")

1. The ESP is a voluntary intervention program which aims to assist individuals in making positive behavioural changes to limit their risk of participating in violent extremism.
2. Information provided by the ESP to the AFP indicates that Mr Pender has consented to his case being managed by the ESP and when he is released the ESP will be able to assist him with community-based support and assistance including attendance at medical appointments.

Mental Health in Custody Post Terrorism and Threat Offences

1. Mr Pender was held at the Surry Hills Police Station from immediately after his offending on 14 June 2017 until 20 June 2017. Since then, Mr Pender has been held in the MRRC in Silverwater, NSW and the HRMCC in Goulburn, NSW. Mr Pender commenced his current period of incarceration at the Mental Health Screening Unit (MHSU) of the MRRC. However, Mr Pender was then transferred to the HRMCC where he was held for two years. On 4 April 2019, the Clinical Director Custodial Mental Health made a submission that Mr Pender was suffering a serious mental illness which was being exacerbated by the restrictive setting at HRMCC. Mr Pender was transferred to the Hamden Mental Health Step-Down Unit within the MRRC on 10 February 2020.
2. Mr Pender's mental health conditions have been managed intensively in custody. He has, since May 2020, been housed in the Hamden Mental Health Step-Down Unit, within the Metropolitan Remand & Reception Centre. The Hamden Mental Health Step-Down Unit provides enhanced mental health care to patients who have experienced acute episodes of mental illness or who are vulnerable as a result of mental illness and require ongoing care and treatment. Prior to being placed there, Mr Pender was housed in the Mental Health Screening Unit for approximately three months. In those circumstances, Mr Pender's mental health condition is largely under control (albeit, he is still experiencing hallucinations). MRRC psychology case notes from September 2020 indicate that Mr Pender is compliant, responsive to antipsychotic medications and presents as behaviourally settled.
3. The following details various events, derived from the SOAF that have taken place while Mr Pender has been in custody since the Terrorism and Threat Offences.

Mental Health History

1. On 20 June 2017, Mr Pender stated to a nurse that he was continuing to use heroin and methamphetamines. On 24 June 2017, during a mental health assessment, the nurse noted that Mr Pender appeared to cloud the truth and was a poor historian.
2. On 26 June 2017, Dr Wade noted both Mr Pender's recent auditory hallucinations commanding him to kill others and his referential delusions. Dr Wade diagnosed him with schizophrenia and substance use disorder (including amphetamines). Mr Pender had indicated to Dr Wade that he was a prophet and that Adolf Hitler was talking to him. He reported to Dr Wade that, when arrested recently, he, "heard voices and blacked out".
3. Clinical notes from NSW Health record that Mr Pender reported feeling ashamed of his behaviour towards police. He reported that he was using the drug ice and was not conscious of what he was doing, but heard voices telling him to, "kill on sight". He believed that his thoughts were being broadcast through television. Mr Pender reported using ice, heroin, cocaine, speed, ecstasy, cannabis, MOMA, GBH and drinking spirits over recent months. He mentioned he had converted to Islam after walking past a Mosque. He denied committing politically motivated violence relating to his religion.
4. On 3 July 2017, Dr Wade noted that Mr Pender was having auditory hallucinations involving Satan or Hitler twice per week. He was hearing multiple voices telling him to commit murder but claimed that he could resist these voices. Dr Wade diagnosed him with schizoaffective disorder with a differential diagnosis of schizophrenia. Mr Pender had residual delusions that he used to be a part of a demonic prophecy. On 3 August 2017, Dr White applied for a Forensic Community Treatment Order (under s 52 of the Mental Health Act) on Mr Pender's behalf. Mr Pender claimed that he was hearing voices two or three times per week, most of the day, telling him to kill and do bad things. He was reportedly apologetic about threats made to police and said that police are people too and have families and should not be abused and threatened like that Mr Pender denied any ongoing dislike of police and other law enforcement. On 7 August, Mr Pender reported to a clinician at NSW Health that he was using ice and had been using heroin intravenously since the age of around 14 or 15.
5. Mr Pender claimed that he did crimes on ice and that he can be violent when on ice as the substance worsens his psychotic voices. He stated that auditory hallucinations command him to commit suicide or harm others. Mr Pender was diagnosed with polysubstance dependence. The doctor noted that Mr Pender provided variable accounts of drug use and that Mr Pender had no documented withdrawal symptoms or visible scars from intravenous drug use.
6. On 16 August 2017, Mr Pender was referred for psychological intervention due to concerns raised regarding his ability to cope in the context of serious charges. He reported being intoxicated with methylamphetamine at the time of committing the Terrorism Offence and the Threat Offence. He said "I'm trying to get off drugs and be a good Muslim ... don't want anything to do with terrorism". He indicated he would continue to use ice in custody if he had access.
7. On 16 August 2017, Mr Pender told Dr Spencer, one of his two treating psychiatrists at HRMCC, that he had made a video threatening people in the past because voices in his head were telling him to do so. He claimed to hear voices during his police interview telling him to kill people, and that he had used ice a few days beforehand. Mr Pender stated that he had used dexamphetamine and had been drinking when he was threatening people with a knife. Dr Spencer noted that Mr Pender had antisocial personality features with no remorse for stealing the phone. She noted that Mr Pender was an increased risk to others when using drugs and when his mental state deteriorates.
8. During this interview, Mr Pender denied being at risk of radicalisation due to having his own beliefs regarding his religion, stating that radicalisation, 'leads you to do things in the name of religion which have nothing to do with religion.' However, he reportedly understood why there could be concerns regarding his risk due to the nature of his offences.
9. On 22 August 2017, Mr Pender said that he would "slash up" if he was not transferred to another unit. On 12 September 2017, he reported that his girlfriend, who had broken up with him, had died. On 24 September 2017, he reported hearing voices telling him to kill others, but that he would not act on them. On 4 October 2017, Dr White noted that Mr Pender showed no signs of psychosis. On 8 October 2017, Mr Pender noted hearing derogatory auditory hallucinations. On 18 October 2017, he denied hearing voices for some time. On 28 October 2017, he claimed that he wanted to kill himself, that his girlfriend had left him again, and that he was going to "slash up".
10. Dr White noted that Mr Pender reported being greatly concerned about his partner, whom he said was 20 years old and had been diagnosed with lung cancer. He claimed that his partner was the mother of his two children.
11. On 6 December 2017, Mr Pender reported to staff at the MRRC that he liked staying in the F Block because he had significant access to drugs, including cannabis and ice. Mr Pender also stated that the mother of his children was undergoing treatment and that it was important for him to make a change for the benefit of his children.
12. On 6 February 2018, Dr O'Dea noted that Mr Pender claimed that he had been hearing voices telling him to kill and hurt others and that he appeared to be remorseful. On 3 July 2018, Dr O'Dea noted that Mr Pender was hearing multiple voices telling him to kill or commit suicide three or four times a week for two or three hours. On 21 November 2018, Dr O'Dea noted no change in regards to the occurrence of voices but stated that Mr Pender was in control of them. Dr O'Dea diagnosed Mr Pender with severe chronic treatment resistant schizophrenia.
13. On 14 March 2018, during a meeting with the Chaplain at the HRMCC, Mr Pender stated that he was completely off his face on ice at the time of his arrest for the Terrorism Offence. Mr Pender stated that he rejected groups like ISIS.
14. On 8 January 2019, Mr Pender self-harmed, scratching both sides of his mouth. On 9 January 2019, Mr Pender stated that his wife was HIV positive. On 10 January 2019, Dr Spencer noted that Mr Pender claimed he had missed his medication for two days and heard voices telling him he was worthless and to "slash up". Dr Spencer diagnosed him with schizoaffective disorder.
15. On 14 February 2019, case notes from Mr Pender's time at the HRMCC show that Mr Pender reported feeling odd and had been experiencing loud auditory hallucinations. The notes reveal that Mr Pender was able to manage the hallucinations well but still wanted to see someone for assistance. In case notes on 26 March 2019, it was also reported that Mr Pender continued to experience auditory hallucinations leading to thoughts of self-harm but that Mr Pender was managing these through learnt techniques.
16. On 6 June 2019, Dr Elliot wrote a report to the Serious Offenders Review Council. Mr Pender claimed to Dr Elliot that, at the time of committing the Terrorism Offence, he was using ice and cannabis on a daily basis, and heroin one or two times a week, benzodiazepines every day, and sporadically using methadone, LSD, dexamphetamine and morphine. He stated that during his arrest, he was psychotic and hearing voices (Gary "the dark over lord" and others) instructing him to kill himself, others and his kids. He told Dr Elliot that he needed to kill to become a demon-god. Mr Pender claimed that he had multiple hallucinations, including up to seven different voices at one time.
17. He stated that the television, in particular a show called "Sons of Anarchy", was telling him to become a, "bikie". Mr Pender stated that his hallucinations told him that a computer chip in his brain was controlling him and that the chip had been inserted when he was at St Vincent's Psychiatric Unit at the age of 18 or 19 years old.
18. Mr Pender stated that Gary had told him to threaten the Magistrate during his bail application on 14 June 2017. Mr Pender claimed that Gary told him to do the police "interview to bring attention to bring attention to Muslims ... make Islam look bad."
19. Dr Elliott was of the opinion Mr Pender had developed schizophrenia, although he had few, if any, negative symptoms of the illness. He noted that although Mr Pender described genuine symptoms of psychosis, he, "may embellish or volunteer psychotic symptoms as part of the maladaptive care seeking behaviour of his underlying borderline personality traits." He was of the view that Mr Pender's risks related to his psychotic symptoms, severe substance use disorder, emotional dysregulation, impulsivity and impetuousness.
20. During an interview with psychiatrist Dr Greenberg, Mr Pender stated that Gary directed him to do things to bring hate and death to Muslims on the morning of 14 June 2017. Mr Pender attributed wanting to bring hatred to Muslims as the reason for his actions leading to the Terrorism Offence. Mr Pender also claimed that the voice of "Gary": 1. told him to put his hands in a monkey grip so that the police would think that he was a Muslim; 2. told him to say, "Allah Akbar," to bring hate to Muslims (and that Satan also told him to say this); 3. directed him to continue saying, "Allah Akbar," whilst he was held in a cell at Surry Hills Police Station and threaten police so that they would think he were Muslim; 4. gave him orders because of what Muslims did on 9/11; told him that there was going to be a holy war of Satan's army against Muslims; 5. told him to say bad things to attract media attention, so that there would be violence directed at Muslims specifically; 6. told him to make the martyrdom video connected with the 2015 Offence; and 7. instructed him to use the ISIS symbol by pointing his finger in the air.
21. Mr Pender stated to Dr Elliott that he pretended to be a Muslim but that he actually wanted to create lslamophobia and that "Gary" told him what to say. Mr Pender claimed that he did the interview with police on 8 August 2017 because he was hearing voices and wanted to create anti-Muslim sentiment. Mr Pender stated that his references to terrorists such as Man Haron Monis and Abu Bakar Al Baghdadi were used to make him appear to be a terrorist and bring hatred to Muslims. Mr Pender reported to the psychiatrist that "Gary" told him to threaten the Magistrate during his 2017 Bail Hearing, "to bring attention to Muslims".
22. Professor Greenberg noted in his 9 October 2019 report that "Gary" was a relatively new phenomenon after a period of 2 years in custody, and that, "a more plausible explanation ... is him now embellishing his account as a convenient rationalisation for his alleged behaviour".
23. On 17 June 2019, it was noted in case notes from Mr Pender's time in custody that he was unable to get in touch with his partner "Megan Webb". On 20 August 2019, Mr Pender reported that his main stressors were the lack of contact with his partner and impending court proceedings.
24. On 1 September 2019, case notes from Mr Pender's time in custody report that Mr Pender cut arcs from his lips and across both cheeks with a razor. Mr Pender reported that he did this to look like "the Joker", and that this incident was related to frustration and unrelated to self-harm ideation. Mr Pender claimed that he cut his face in this manner because "the Joker" was a powerful figure.
25. On 7 November 2019, Dr Gerald Chew produced a report based on an assessment of Mr Pender on 1 November 2019. He reviewed various documents including the report of Professor Greenberg dated 9 October 2019. He opined that Mr Pender had a diagnosis of schizophrenia and noted that this had been consistently endorsed by Justice Health clinicians. He was being treated in custody with antipsychotic treatment. He opined that Mr Pender was experiencing an exacerbation of psychosis likely precipitated by methylamphetamine use at the time of the Terrorism and Threat Offences, and that he had a disease of the mind giving rise to a defect of reason that impaired his capacity to reason as to the wrongfulness of his conduct at the time.
26. Medical notes from Mr Pender's time in custody indicate that, as at 20 December 2019, he was being abused and threatened by other inmates because he had recently shunned Islam and converted to Judaism. Staff noted that Mr Pender's "mental state is fragile and could collapse any time ... he cannot cope with the abuse." On 25 December 2019, Mr Pender told fellow inmates that he had converted back to Islam to stop the abuse but informed staff that he continued to follow Judaism in secret. On 3 January 2020, Mr Pender reported that he was taking his unsupervised evening medications but sometimes felt like he did not need them. It was agreed that he would return to supervised medication. Around this time, he was suffering auditory hallucinations.
27. Case notes indicate that on 1 January 2020, Mr Pender tore his bed sheets apart, reportedly to use as a line to catch tuna. He acknowledged that this was wrong but stated that really wanted the tuna. Mr Pender said he was "just being stupid". He reported worrying about his children in Batemans Bay due to fires. On 20 January 2020, Mr Pender was noted to be non-compliant with his medication schedule, except for depot, his mental health deteriorating rapidly as a result. He was noted to have religious ideation and fantasies, paranoia and impulsivity.
28. On 13 January 2020, Justice Health staff noted that Mr Pender was becoming non-compliant with medication and "religiously fanatical".
29. On 31 January 2020, Mr Pender told gaol staff that he was having homicidal thoughts towards other inmates. He had continued his new Jewish faith and was praying loudly in his cell, which caused inmates to threaten to kill him. Staff notes from 10 February 2020 indicated that Mr Pender believed he had super-natural powers enabling him to fly and read minds. He had been hearing voices all day and night for six-seven days a week, including Satan and Hitler who were asking Mr Pender to kill himself. The notes recorded that Mr Pender reported that these voices had been occurring since he was 16 but that their severity sometimes lessened when Mr Pender took his medication.
30. Throughout 2018 there were many instances of non-compliance with medication, although in 2020 there were only a few instances.
31. Since February 2020, Mr Pender has been housed in a mental health unit. He has continued to engage in threats of self-harm, requiring action from the Risk Intervention Team (Eagle Report, [140]-[141]]) although there is a suggestion that some of these threats may have been made by Mr Pender so as to secure protection from other inmates see the April 2021 Pre-release report.
32. Mr Pender was placed on Risk Intervention Team review again on 16 June 2021, following threats made during methadone treatment that he was "going to kill someone". He later reported that he 'wanted to go up on his methadone, but was refused and that is why he 'lost it'.
33. On 11 February 2020, corrections staff noted that Mr Pender was relieved to be transferred to MHSU because he would no longer be abused by other inmates. On 19 February 2020, various staff noted that Mr Pender did not pose a threat to the community and that his mental health had become stable. A plan was discussed to have Mr Pender removed from isolation because it was having a negative impact on his mental health.
34. On 21 February 2020, Psychology Service Progress Notes show that Mr Pender reported ongoing auditory hallucinations that sometimes told him to harm himself or kill others. However, Mr Pender reported that he did not feel pressured to act on the voices.
35. On 4 March 2020, Mr Pender indicated that he would like, "to be on [the] Drug Court programme when released and wants to work if possible." He continued to comply with his medications.
36. On 9 March 2020, a psychiatrist, Dr Saul Bert, said of Mr Pender that: when he is unwell, he reports auditory hallucinations that are command in nature, telling him to kill police on sight, and at other times, that are derogatory or providing running commentary about his life. He reported delusions of reference and of thought broadcasting. During his incarceration, he had expressed concerns about a computer chip inserted in his brain that can be used to control and monitor him.
37. Psychology Service Progress Notes dated 27 March 2020 showed that Mr Pender was compliant with his treatment and continued to feel no pressure to act on auditory hallucinations commanding him to harm himself or others. Mr Pender stated that he had experienced these symptoms for years and coped by distracting himself.
38. On 3 April 2020, Mr Pender indicated to corrections staff that he would like to reconnect with the Trama family. On 11 April 2020, Dr Spencer noted that Mr Pender's mental state remained stable From 18 April 2020, Mr Pender began requesting significantly lower doses of methadone, and when this was refused he became non-compliant with his dosing. On 21 April 2020, Mr Pender feigned taking his medication. The following day, he noted that he wanted to stop using methadone to comply with Judaism and apologised to staff. He mentioned his auditory hallucinations had increased in severity over the past few days.
39. On 28 April 2020, Mr Pender informed staff that his hallucinations had been less severe recently and he attributed this to compliance with medication. He said he had denounced Islam. He claimed that his conversion to Judaism was based upon the fact that it was a peaceful religion.
40. Psychology Service Progress Notes dated 14 May 2020 record that when he was transferred from the MHSU to another mental health pod, Mr Pender threatened self-harm. Mr Pender explained that he had felt overwhelmed due to the change and because he had seen an inmate with whom he had issues.
41. On 28 June 2020, Mr Pender was placed in a, "safe cell ... due to threats of self-harm." The following day, he admitted that he did not have ideas of self-harm but wanted to get out of his "pod". He claimed he was being, "stood over," and forced to regurgitate his methadone so that others could take it. He apologised to staff for lying to be removed. On 24 July 2020, Mr Pender denied hearing voices.
42. Medical notes made about Mr Pender while he was in custody on 13 August 2020 record his alcohol abuse starting at age 12. They also reveal that Mr Pender reported that he has previously overdosed twice, the most recent incident being at age 24. On 24 August 2020, Mr Pender indicated that he had not been in contact with his family in Tasmania for three years.
43. On 23 August 2020, Mr Pender, "acknowledged that he did have extreme views in the past" and was open to engaging in any interventions. He said he had become increasingly aware of his poor impulse control, the connection with his mental health, AOD usage and impulsive behaviours. He said he had chosen Judaism because he did not believe, "they judge or believe there is a hell".
44. On 25 September 2020, Mr Pender was recorded as denying any current psychotic issues or disturbances
45. On 27 October 2020, Mr Pender described his mood as depressed. He reported to his psychologist ongoing paranoia and auditory hallucinations commanding him to commit suicide but denied any self-harm ideation. His paranoia related to a belief that he would be killed for having left lslam.
46. On 19 November 2020, Mr Pender reported regurgitating his medicine and claimed that he became paranoid as a result. Mr Pender also reported a resultant exacerbation of symptoms.
47. On 24 December 2020, Mr Pender reported that he had converted back to Islam because he did not believe some of the teachings of Judaism. He was charged around this time for not following directions and for engaging in prayer in the "pod" with other inmates (when previously advised he must engage in prayer in his cell). He acknowledged he should have listened to staff and denied having extremist views, though claimed he used to hold these views in the past. I will discuss his connection with religion further below.
48. Mr Pender also denied having any "extremist views" and stated that he would never want to cause harm to anyone. Mr Pender stated that in the past (prior to his arrest) he was isolated from family, using drugs and experiencing major mental health issues which left him vulnerable to being manipulated by others. He said that, in response to this, he had "extremist views" in the past (years ago, prior to arrest) and that he no longer has them and would 'never' have these views again.
49. As previously mentioned, while Mr Pender's mental health condition is generally under control in custody, Dr Eagle and Dr Dewson noted that Mr Pender continues to experience hallucinations. Dr Ellis does not note this, and records Mr Pender's report of a recent cessation of hallucinations (at p 11). He describes Mr Pender's condition as "treatment resistant".

Relationship with "Megan Webb"

1. On 29 March 2021, Mr Pender was advised by staff that the person he perceived to be Megan Webb was, in fact, another person pretending to be her. From about 2014, Mr Pender appears to have perceived that he had been in a relationship with a woman named "Megan Webb". On 1 February 2018, Mr Pender described his relationship with "Megan Webb" as on and off for about seven years. However, Mr Pender had never actually met Megan Webb in person and his communication with her abruptly ceased in around June 2019.
2. The real Megan Webb is believed to be Mr Pender's cousin. However, a fake Facebook profile was created in Megan Webb's name by a person named Chantelle Bennett. This profile was used by Ms Bennett to invent a fake relationship between "Megan Webb" and Mr Pender, with Ms Bennett playing the role of "Megan Webb". Ms Bennett also invented two children, a boy and a girl named "Blake Jnr" and "Dakota". Mr Pender acted as though these were his children.
3. In several interviews, mental health assessments, and reports, Mr Pender variously indicated that he had a partner, girlfriend or wife, and two children. At various times between 2014 and 2019, Mr Pender had been in regular contact with "Megan Webb", including by telephone, through social media and by correspondence.
4. On 13 June 2019, Ms Bennett provided a statement to police revealing that she had pretended to be Megan Webb. Ms Bennett stated that she created a Facebook profile for "Megan Webb" while she was attending Goulburn High School. Megan Webb was known to Ms Bennett as she lived in the Goulburn area. Ms Bennett stated that the reason she created the profile was because Megan Webb had teased her. The fake "Megan Webb" Facebook profile was initially controlled by a friend of Ms Bennett's named Curtis Woodward. However, after about 12 months of using the profile, Ms Bennett took full control of the profile. Mr Pender sent a friend request through Facebook to "Megan Webb" and started messaging her. Mr Pender eventually told 'Megan Webb" that he loved her. Ms Bennett, who was now controlling the "Megan Webb" Facebook profile, "just went along with it", and messaged Mr Pender telling him that she reciprocated those feelings.
5. Over several years, Ms Bennett continued the Facebook relationship and created more Facebook profiles under the names "Megan Collins Cooley", "Megan N Blake" and "Megan Pender (Blakes Girl)".
6. "Megan Webb" also told Mr Pender that he had a daughter named "Dakota", who would be eight years old in 2021 if she existed. "Megan Webb" then made an announcement on Facebook saying that she had given birth to a baby boy and that his name was "Blake". Mr Pender acted as if the baby were his son and started talking to "Megan Webb" as though he were the father.
7. Mr Pender would often speak on the phone with "Megan Webb". When Mr Pender was remanded in prison, 'Megan Webb" would send him letters and would include photos of "their" children (i.e. "Blake Jnr" and "Dakota"). Those photos were in fact extracted by Ms Bennett from the real Megan Webb's Facebook profile page.
8. After Mr Pender's arrest in 2017 for the Terrorism Offence, Mr Pender contacted "Megan Webb" three or four times per day. Mr Pender would often discuss 'their" children.
9. Ms Bennett only ceased speaking to Mr Pender in June 2019 and has never actually met him. In a statement, Ms Bennett referred to a conversation she had with Mr Pender after his arrest where he touches on martyrdom. Ms Bennett also stated that Mr Pender had tried to get her to convert to Islam and would say that they were married under Islamic law. However, there is no evidence to suggest that Ms Bennett (or "Megan Webb") in fact converted to Islam at any stage or that Mr Pender persisted over any extended period of time in his efforts to convert her.
10. Mr Pender presented as anxious and disappointed when he discovered that he had been misled, but denied feeling the urge to self-harm. The following day, Mr Pender thanked staff for meeting him and was appreciative that police had relayed the information saying "they have been good to me, it shows they care". He indicated that he was feeling fine notwithstanding the revelation about "Megan". He reported experiencing auditory hallucinations of a derogatory nature on an "on/off" basis over the past few days but they settled once he took his medication. He denied experiencing command hallucinations. He also reported at that time that he had resumed his interest in Judaism and had started to learn Spanish as he acknowledged he needed to be balanced and learn about something else apart from religion.

Substance Abuse

1. Mr Pender has undertaken methadone treatment in custody. While he has been generally compliant with this program, the April 2021 Pre-release report recorded that in the previous 12 months Mr Pender "had on several occasions argued against remaining on the [methadone] program". This is consistent with Justice Health notes, which record that in January 2021 Mr Pender wanted to cease methadone treatment because as a Muslim "it is prohibited to use opioids", he wanted to be methadone free before Ramadan and he claimed it was having adverse impacts on his teeth and skin. He has since expressed regret at attempts to cease the program, recognising he "requires it to remain mentally well and avoid using drugs". His "fluctuating commitment to drug treatment" was noted as one of a number of concerns that led to the report recommending parole be refused. A note dated 19 May 2021 records that Mr Pender was seeking an increase in his methadone dose "as his current dose is not holding him".
2. Mr Pender has not undertaken any drug or alcohol programs while in custody. While he has been assessed for EQUIPS Addiction and EQUIPS Foundation programs, and the High Intensity Program Unit, due to his ongoing mental health presentation and treatment, his uncertain release date and current classification he has been ineligible to complete these programs. As Dr Dewson noted, Mr Pender's substance use issues are an "outstanding" treatment need: at [86(V)].

Treatment Prior to Incarceration

1. In the past, Mr Pender has been provided with the following supports: 1. residing with foster carers Peter and Pauline Trama for about 4-5 years in 2008-2013, and also at other times in 2015. He has also been given temporary accommodation at: 1. the Oasis Refuge in 2008. Mr Pender was charged with the assault of a fellow resident and barred from returning, 2. a Salvation Army placement at "Binacrombi" in 2008, 3. Campbelltown Integration Support Centre in 2016. Mr Pender acted in a threatening manner towards staff and residents at this facility, as a result of which he was convicted of a stalk/intimidate offence; 1. opportunities to participate in rehabilitation programs including: 1. the Ted Noffs Foundation Program for Adolescent Life Management ("PALM") in 2009, a residential treatment program for young people addressing issues associated with alcohol, drugs, mental health, family dysfunction and criminality, 2. One80TC Yarramundi in 2009, a residential alcohol and other drugs rehabilitation facility, 3. the William Booth Drug and Alcohol Rehabilitation Program in 2009. Mr Pender was asked to leave the program after he was caught with a knife, 4. the Teen Challenge in 2010. Mr Pender was asked to leave the program due to behavioural issues, and 5. the Miracle Haven Lake Macquarie Recovery Centre in 2011. Mr Pender committed an assault against fellow resident Mr van Calcar at this time, and was later convicted and sentenced in relation to it; 1. methadone treatment, including at Summer Hill United Gardens in 2015, 2016 and 2017; 2. support from case workers, including from The Crossing (and The Shopfront); and 3. access to community mental health services, including from: Camperdown Community Health Centre in 2010; Goulburn Community Health in 2013; and Parramatta Mental Health in 2016.

First Conversion to Islam

1. As earlier mentioned Mr Pender has reported that he was christened Catholic but did not attend church or otherwise practise. Mr Pender has reported that he became interested in religion when he was 14 years old.
2. Mr Pender has given varying accounts of his interest in Islam and conversion. The specific date of Mr Pender's conversion is unclear. The plaintiff submitted that Mr Pender's first conversion occurred when he was 16 or 17 years old, in about 2007 or 2008. This appears to be broadly consistent with his history of involvement in religions.
3. Mr Pender 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. Mr Pender has also reported that he converted 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 and 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.

Second Conversion to Islam

1. 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.
2. 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 and became a Muslim.
3. Mr Pender has reported that he attended a Mosque in Harris Park, NSW and that the Sheikh (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. 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 (see above. During this period, Mr Pender also: 1. made threats to members of the Trama family and in so doing, used language consistent with extremist Islamic ideology (see above paragraphs; and 2. 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".
4. In May 2017, Mr Pender reported during a parole interview that he still identified as a Muslim. Mr Pender 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".
5. One month later, in June 2017, he committed the Terrorism Offence and the Threat Offence. 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.

First Conversion to Judaism

1. In 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.
2. Mr Pender suggested that he was very interested in Yiddish, which is the language typically spoken by Ashkenazim (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 as a consequence of his conversion to Judaism.
3. To engage with his newfound Jewish faith, Mr Pender requested religious materials and wished 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.
4. 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.
5. On 24 January 2020, in a Case Review Report whilst Mr Pender was held at the HRMCC 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. By July 2020, Mr Pender claimed that he had read over 300 pages of materials in relation to Judaism and that he had taught himself to read Hebrew. In around July 2020, Mr Pender also raised the prospect of converting to Buddhism.
6. On 22 January 2020 and 2 April 2020, Mr Pender wrote to Mr BueuIese and stated that, "everyone [at gaol] is hating on me," for leaving Islam. He stated he will change his, "name to a Jewish one," and will move to Melbourne for a fresh start.

Third Conversion to Islam

1. Mr Pender continued to practice Judaism until around 8 December 2020. During an assessment whilst Mr Pender was held at the MRRC, Mr Pender reported that he had converted back to Islam as he did not agree with some of the teachings of Judaism. Mr Pender indicated that he was now practising Islam the right way. On 24 December 2020, during an interview with CSNSW/GEO Psychology Services, 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.

Second Conversion to Judaism

1. 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 also 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.
2. By the end of March 2021, Mr Pender was again studying materials in relation to Judaism and considering ways 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, Mr Pender 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.
3. On 6 April 2021, Mr Pender noted that he converted back to Judaism. He noted to gaol staff that he had been unable to get into contact with his foster family. He also stated that his interest in various religions was based on a need to belong. He told staff that he was hearing auditory hallucinations telling him to, "get shot" On 14 April 2021, Mr Pender was able to identify with support staff various treatments and changes he needs to undertake, including, "working on anger," and, "address[ing] drugs and alcohol."

Safety and Protection of the Community

1. As to the provisions of s 105A.8(1)(a) the plaintiff made the following submission in chief': 55. The starting point for considering s 105A.8(1)(a) is to identify which of the serious Part 5.3 offences there is a risk of Mr Pender committing if released into the community. Based on the opinions of Dr Eagle (at [447]) and Dr Dewson (at [74]-[76])[CB B222, B299-300],the serious Part5.3 offences that Mr Pender is most likely to commit are: (a) engaging in a terrorist act, contrary to s 101.1 of the Criminal Code. Dr Eagle gives the example of causing harm to a police officer, or member of the Australian public, justified by an extreme Islamic ideology (at [447.1]); (b) possessing a thing connected with preparation for a terrorist act, knowing of or being reckless as to the connection, contrary to s 101.4 of the Criminal Code. Dr Eagle gives the example of 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 (at [447.1]). As noted above, the index offence falls into this category; and (c) doing an act in preparation for, or planning, a terrorist act, contrary to s 101.6 of the Criminal Code. 56. The factors that give rise to the risk of Mr Pender committing such offences are addressed in the sections that follow. While those are not offences that would necessarily involve a large-scale loss of life, they are obviously offences that involve violence or potential violence and as such pose an obvious risk to community safety and protection. 57. Section 105A.8(1)(a), and the assessment of 'unacceptable risk' overall, is focused on the risk Mr Pender presently poses to the community. In Benbrika, the defendant submitted that: the 'community is also made safer, and protected, by the rule of law' and by adherence to the norms of international law and by the common law presumption in favour of the liberty of the subject; that weight should be given to the terms of the sentence imposed by the trial judge; and that community safety is also promoted by taking steps best calculated to promote the offender's rehabilitation. Tinney J rejected those submissions: at [409]-[411].In doing so his Honour concluded that the stated purpose of the legislation is clear: 'the safety and protection of the community is to be achieved, where appropriate, by the continuing detention of terrorist offenders who pose an unacceptable risk of offending': at [411]. His Honour concluded while the extent of the offender's rehabilitation was relevant to the assessment of risk, rehabilitation was not the focus of s105A.8(1)(a).
2. In reply Mr Pender submitted: 80. This section is an encapsulation of the stated purpose of the division, being the "safety and protection of the community is to be achieved, where appropriate, by the continuing detention of terrorist offenders who pose an unacceptable risk": s.105A.1. 81. Contrary to the submission by the plaintiff (PWS [57]), in the defendant's submission, in considering the "safety and protection of the community" the provision, as a matter of statutory construction, clearly does not on its terms preclude consideration of the defendant's rehabilitation. The protection of the community will be enhanced by the successful rehabilitation of the defendant. 82. Undoubtedly, there are circumstances where an offender's views are so entrenched, they may be beyond rehabilitation. In such circumstances clearly rehabilitation will have no role to play in considering the "safety and protection of the community". The only consideration will be incapacitation. 83. However, the present matter is vastly different to such a case. The plaintiff recognises that the defendant's offending is "intimately connected with his mental illness and substance abuse disorder" (PWS [51]). Recognising that these features are the building blocks of any future risk, the Court needs to assess whether "safety and protection of the community" is best achieved by addressing those factors in a custodial setting, or potentially in some other manner. The defendant submits that the risk factors posed by the defendant are best addressed and managed in the community and, therefore, in turn, provides the mechanism by which the safety and protection of the community is best achieved. 84. As observed by Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983, in relation to an application under the CHRO Act: It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release. 85. Similarly, in State of New South Wales v Sancar [2016] NSWSC 867, Garling J at [92], dismissing the application stated: As the legislation makes clear, ensuring the protection and safety of the community is not to be achieved by subjecting to extended supervision orders all violent offenders at some risk of committing a further violent offence. It is inevitable that anyone released from custody at the conclusion of their term of imprisonment is at risk of committing an offence.
3. The plaintiff responded as follows: 16. The "safety and protection of the community", which is a mandatory consideration under s 105A.8(1)(a), favours the finding that a continuing detention order should be made. The submission at DS [80]-[83] that rehabilitation is an aspect of safety and protection of the community was considered, and specifically rejected, by Tinney J in Minister for Home Affairs v Benbrika [2020] VSC 888 at [411]. The submission is taken no further by the authorities cited at DS [84]-[85], which simply stand for the proposition that extended supervision orders may be made only where offenders pose an unacceptable risk of specific offending, as opposed to a degree of risk of general offending. 17. The "safety and protection of the community" in s 105A.8(1)(a) is not a free-floating consideration; s 105A.8(1)(a) requires the Court to consider that factor in determining whether Mr Pender currently poses an "unacceptable risk" if released into the community. The question whether or not a continuing detention order would promote Mr Pender's rehabilitation, such that he might pose a greater or lesser risk in the long term, cannot form part of that assessment, because it is not relevant to the risk he currently poses. At most, the question of rehabilitation might be relevant to any residual discretion the Court would have (that is, after having satisfied itself of the matters in s 105A.7(1)), to decline to make a continuing detention order. However, for the reasons outlined from [27] below, any such residual discretion should not be exercised that way here.

Compliance with parole obligations

1. Mr Pender has breached parole on a number of occasions. Mr Pender has persistent difficulty in complying with any conditions of parole, and a propensity to offend while on parole. On each occasion he has been released to parole, he has breached conditions within a short period of time, including for drug use, failing to attend medical appointments, and for offending. This history of non‑compliance with parole obligations informs the Court's consideration of the "safety and protection of the community" under s 105A.8(1)(a), and/or constitutes "any other information as to the risk of the offender committing a serious Part 5.3 offence" under s 105A.8(1)(i).

Behaviour in custody

1. The April 2021 Pre-release report notes while since April 2020 Mr Pender had "displayed overall satisfactory behaviour in custody", he had incurred three misconducts between November 2020 and January 2021: in November 2020, he incurred a "misconduct" for "fight or other physical combat" with another inmate who he alleged was standing over him; in December 2020, he incurred a "misconduct" for "disobey direction" due to praying in an incorrect area; and in January 2021 he appeared to rally support from Muslim inmates in the pod. On 16 June 2021 Mr Pender also made threats against correctional centre officers.

Employment and Education

1. The April 2021 Pre-release report noted that Mr Pender had received a certificate of participation in January 2021 for partaking in an Indigenous mural but had not otherwise undertaken any educational courses throughout his period of incarceration or expressed a desire to do so. While his most recent classification review deemed it appropriate for Mr Pender to commence custodial employment, he had 'expressed an unwillingness to work in custody and has further stated he had no interest in working in general due to his history of addiction and mental health status'.
2. Mr Pender had a minimal employment history; he reported having worked at a convenience store aged 16. He admitted to Dr Ellis that he had "only ever been financially supported by benefits or selling drugs": p 10. While in custody, Mr Pender has not engaged in education or employment (except for self-teaching relating to Judaism and Yiddish).
3. Mr Pender has expressed he had no interest in working, even upon release, due to his history of addiction and mental health status. He stated he intended to rely on the disability support pension and PRISM had since lodged an application for the pension on his behalf. He indicated to Dr Dewson that he would like to learn Yiddish and partake in self-education in relation to Judaism. He expressed an interest in teaching Yiddish or becoming a kosher butcher or chef. However, Dr Dewson said he "presented with somewhat immature and rudimentary plans to achieve these goals", having stated that he will "convert to Judaism, wear the hat, wear a suit, grow my hair into curls and I should be given a job, maybe even initially in a Jewellery store".
4. These matters mean that future education or employment are very unlikely to be protective factors for Mr Pender.

Measures or Factors Operating in the Event of Release into the Community

Evidence of Ms Terry

1. Senior counsel for Mr Pender placed considerable reliance upon the evidence of Ms Terry in her 21 July 2021 affidavit. Ms Terry is the Therapeutic Manager/Senior Psychologist at PRISM. She oversaw the development of intervention and treatment plans for offenders in that service. The PRISM service generally engages with offenders in the custodial environment in the last 12 to 24 months of their sentence.
2. Each offender who consents to the PRISM service undertakes a comprehensive assessment of individual risk and needs, before working with PRISM staff to develop an individualised structured intervention and support plan. PRISM Intervention plans seek to incorporate an individual's risks, needs and responsivity factors including both Countering Violent Extremism specific and non-Countering Violent Extremism specific indicators; and seek to inform the whole-of-sentence case plan.
3. Ms Terry has not provided therapeutic services to Mr Pender.
4. Ms Terry indicated that PRISM took responsibility for finding Mr Pender accommodation. Temporary housing was explored but the AFP advised that they would not be able to effectively manage Mr Pender in such accommodation. Attention was then directed to permanent housing.
5. At the time of her 21 July 2021 affidavit, no permanent housing had been found. However, in her second affidavit, she deposed that a registered NDIS provider has agreed to provide permanent housing for Mr Pender in a one bedroom studio in Petersham NSW in the event he was released from custody.
6. The accommodation provider has agreed that Mr Pender can reside in the accommodation for as long as he would like, on the basis that he continue to pay rent and utilities and barring exceptional circumstances. Residents at the accommodation have access to onsite support for 24 hours a day, seven days per week, from staff trained and experienced in working with individuals with psychosocial disabilities and complex needs.
7. At 15.2 of her second affidavit dated 10 September 2021 Ms Terry observed: One on one support - I understand, from my discussions with PRISM staff, that United for Care staff wlll potentially also be able to provide up to 5 hours of one on one support to Mr Pender each day. That support would involve a support worker assisting Mr Pender with his day to day life; for example, taking him grocery shopping, developing personal care and living skills. and helping him with his washing or cooking. The aim of this individualised support is to assist Mr Pender to live in the most self-sufficient way possible. The level of individualised support for Mr Pender will be dependent on how much NDIS funding is provided lo Mr Pender.
8. In her 21 July 2021 affidavit, Ms Terry summarised support services available to Mr Pender if released from custody as follows: 22.1 Housing and Accommodation Support Initiative - on 3 June 2021 the PRISM SAPO spoke to Conor Ragg, caseworker at HASI about the provision of Case management support to Mr Pender in the community. Mr Ragg informed the PRISM SAPO that the Housing and Accommodation Support Initiative could not commit to providing Mr Pender with support in the community until he has a permanent address and that address would need to be in the Eastern or Inner-West suburbs of Sydney. Mr Ragg said words to the effect that: 'the PRISM service should contact HASI in the month prior to release to discuss support options'. The PRISM service intends to contact HASI one month prior to Mr Pender's release. 22.2 Community Mental Health Services - Mr Pender will require support for his mental health in the community, including psychiatric support and provision of medications as prescribed. This will be organised through Justice Health prior to his release, depending on his accommodation location. As part of my discussion with Dr Spencer from Justice Health on 17 June 2021 we discussed Mr Pender's eligibility for Justice Health initiatives within the initial temporary housing period once released. These options will be further explored and arrangements made in due course prior to his release. 22.3 Cultural supports: Mr Pender is undergoing a cultural assessment, and reports a desire to reconnect with his Aboriginal Heritage. At the initial meeting on 11 June 2021 additional supports were canvased that may assist Mr Pender to reconnect with his culture within the community as well as embrace prosocial activities within his community. This may include kinship relationships. 22.4 Drug and alcohol services - Prior to Mr Pender's release supports relating to maintaining his abstinence in the community will be canvased and organised where possible. 22.5 NSW Engagement and Support Program - The NSW Engagement and Support Program (ESP) is a voluntary program that aims to assist individuals in positive behavioural changes that attempt to result in a move away from tendencies towards violent extremism. It is a multi-agency venture that assists in case managing certain offenders upon their release from custody. The ESP coordinates the provision of services by different organisations and agencies for offenders upon release from custody, in a similar way to what PRISM has done for Mr Pender while he has been in custody. Mr Pender was referred to the ESP on the 30 May 2021. Mr Pender was accepted into the ESP program on 30 June 2021. I understand that the ESP is going to explore private housing arrangements and other support in the community for Mr Pender as soon as they are able to initiate contact with him in custody. I understand they have not been able to yet because of restrictions imposed due to the COVID-19 pandemic.
9. Further, Ms Terry deposed in her affidavit of 21 July 2021: I am aware that Mr Pender has been granted $40,087.05 in NDIS funding. In the event Mr Pender is released from custody, that funding will enable: 25.1 a Support Coordinator and Mental Health Case Worker to help Mr Pender explore suitable accommodation options, employment options, and other matters such as obtaining a drivers licence, in the event he is released from custody. 25.2 a psychologist to assist him in improving his relationships with his family.
10. Ms Terry also deposed that Mr Pender had consented to participating in: the ESP (a program administered by the State government directed at assisting with the management of certain offenders upon release); community mental health services; and cultural supports. Ms Terry further deposed that as at 10 September 2021 Mr Pender had received NDIS funding in the amount of $40,087.05 (at [27]). However Mr Pender's NDIS plan was updated on 21 September 2021 to provide for funding in the amount of $303,497.64 (to be reviewed in 12 months) including for a psychologist, behaviour management and support coordination.
11. At pars19-21 of her affidavit of 10 September 2021, Ms Terry deposed: 19. In my first affidavit at 22.2, I explained that Mr Pender will require support for his mental health in the community, including psychiatric support and provision of medications as prescribed, and that this support will be organised by the Justice Health and Forensic Mental Health Network (Justice Health) prior to his release. Mr Pender is currently subject to a Forensic Community Treatment Order. Once Mr Pender is released and he is accepted by the local Community Mental Health Team this order will be varied to a Community Treatment Order. 20. I understand, from my discussions with PRISM staff and his current treatment team (Justice Health) that the Community Transition Team (CTT) within Justice Health will assist Mr Pender in developing a plan to address his mental health needs and to facilitate his engagement with mental health services as he transitions into the community. This may include Justice Health connecting him to a local area Community Mental Health Team Justice Health providing transitionary support and information to the identified allied health professionals regarding Mr Pender's individual psychiatric circumstances and needs (including providing assistance with the NDIS process), and Justice Health providing interim psychiatric services to Mr Pender in the Initial release period whilst community mental health referrals are activated and Mr Pender's engagement with them is organised. 21. I understand from communications with Mr Pender's Justice Health treatment team that the CTT team are currently working with the Marrickville Community Mental Health Team in handing over and arranging a comprehensive plan for managing and assisting Mr Pender with his mental health needs once he is released into the community. The CTT has already approached the Marrickville Community Mental Health Team to discuss Mr Pender's circumstances and needs and it is intended that Mr Pender will be referred to the Marrickville Community Mental Health Team on the day of his release.

CTO

1. Mr Pender is currently subject to a CTO under the Mental Health Act which compulsorily requires him to have mental health treatment. The current CTO expires on 18 March 2022. It would be expected that the CTO would be renewed on that date.
2. The current conditions of the CTO require Mr Pender to: 1. attend and meet with his case manager/delegate at least once a month; 2. attend and meet with his psychiatrist/delegate at least once every three months; 3. the frequency of such appointments can be changed by the case manager, psychiatrist, or delegate; 4. to accept treatment and/or medication as prescribed or varied by the psychiatrist/delegate; 5. to comply with blood tests as requested by his psychiatrist/delegate (not more than once every 6 months); and 6. to comply with requests to provide a urine sample for urine drug screens as requested by his psychiatrist/delegate (no more than once a month).
3. In the application for variation of the Forensic CTO of 1 October 2021 the following client obligations are stipulated: 1. Mr Pender must take the medication as prescribed and/or varied by Dr Aparna Menon or delegate. 2. Current medication: Medication Dose Oral/Intramuscular Frequency Aripiprazole 400mg Intramuscular Monthly Olanzapine 10mg (morning) Oral Daily 20mg (night Sodium Valporate 1000mg (morning and night) Oral Daily

1. Mr Pender must attend reviews with Dr Aparna Menon or delegate at least every 3 months, or as requested by Viv Upton and/or Dr Menon. 2. Mr Pender must meet with Viv Upton or delegate at least fortnightly and be contactable by phone on a weekly basis or as requested. 3. The frequency, place or timing of appointments between Mr Pender and the Care Coordinator and treating doctor or delegates may be changed by the Care Coordinator or treating doctor. 4. Appointments may occur at Mr Pender's home if he consents and the Care Coordinator or treating doctor agrees to home visits. Otherwise, Mr Pender must attend appointments at Marrickville Health Centre. 5. Mr Pender must comply with regular urine drug screens as and when requested by Core team staff.

Firearms Prohibition Order

1. Dr Ellis in his report made recommendations for the management and supervision of Mr Pender if he was released into the community. One such recommendation was, that a weapons and firearms prohibition order be applied for. This is extracted below: I understand he has available supported accommodation and involvement from Uniting Care as a disability provider. These recommendations would be contingent on the stable accommodation being available and supervisory orders in the form of a control order, a weapons and firearms prohibition order and a community treatment order under the Mental Health Act 2007 being applied.
2. Commander Booth gave evidence in the proceedings that there is currently no weapons or prohibition order in place for Mr Pender, however, in the case of his possible release into the community where the CTO was not granted then an application for a firearms prohibition order would be made. It was submitted by senior counsel for Mr Pender during cross-examination of Commander Booth that the firearms prohibition order "fills a gap" in the Control Order, namely, that the prohibition order provides a search power. That is extracted below (T68): Q. And your understanding is that certainly the firearms probation order perhaps fills a gap under the controls, which is that they provide a search power. Is that correct? A. Yes, they do provide a search power, that is correct.
3. My assessment proceeds on that basis which represents a measure to mitigate risk.

NDIS

1. Evidence regarding the available support for Mr Pender under the NDIS can be found in the affidavit of Claire Stimpson affirmed 22 September 2021.
2. The NDIS program provides funding for ongoing treatment and skill development to the value of approximately $300,000 per annum if Mr Pender is released from custody. Supported accommodation has also been secured.
3. Mr Pender was recently provided with two further supplementary reports responding to the NDIS evidence. In her report dated 6 October 2021, Dr Dewson opined that the NDIS supports (at [14]): …will likely contribute to his ability to manage his mental health, retain stable accommodation, and maintain sobriety in the future. As such, these supports will likely have a positive impact on Mr Pender's ability to manage his risk in the future. There is no overall change to Mr Pender's risk score or profile (such as hypothetical risk scenarios), however, it appears that he is being provided adequate opportunities to establish an offence free future.
4. Dr Eagle was also asked about the implementation of these supports and provided a supplementary report dated 6 October 2021. Dr Eagle stated (at [6]) that: "the proposed plans for Mr Pender's accommodation, community supports, and mental health treatment and monitoring would appear to be reasonable in the circumstances. In my experience it would be unlikely that Mr. Pender could access more support than is being proposed…".

Control Order under Div 104 of the Criminal Code

1. As previously mentioned control orders are made under Div 104 of the Criminal Code. A control order may be made if, inter alia, the issuing court is satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act and that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist attack Div 104.4(1) of the Criminal Code.
2. The obligations, prohibitions and restrictions that a court may impose under a interim control order as mentioned above are specified in Div 104.5(3) of the Criminal Code.
3. In short, the controls of the Control Order are outlined below: 1. Control 1 - curfew between 9:00pm and 7:00am and an obligation to present to police on request during those hours. 2. Control 2 - daily reporting by Skype to Police between 7:00am and 7:00pm, or, if directed, to a police station. 3. Control 3 - place prohibitions including: not to visit a correctional centre, a residence of a person subject to a non-association order, or licensed premises. 4. Control 4 - prohibition from leaving NSW. 5. Control 5 - prohibition from communicating or associating with two named persons or any other person incarcerated in a correctional centre. 6. Control 6 - prohibition (including for work purposes) from accessing or possession of documents or electronic media (or attempts to access/possess) that depict or describe a range of firearms, explosives, weapons, acts of violence, materials from terrorist organisations, or surveillance or counter-surveillance materials (with limited exceptions). 7. Control 7 - prohibition from producing or distributing documents or electronic media as described in Control 6. 8. Control 8 - prohibition (including for work purposes) on renting, purchasing, or driving a heavy vehicle. 9. Control 9 - prohibition from undertaking paid employment without prior approval from police. 10. Control 10 - prohibition from possessing or using (or causing another to possess or use): firearms, ammunition, prohibited weapons, items capable of certain propulsion, more than 4L of petrol, any combustible or irritating chemical (other than for reasonable domestic use), a detonator, a fuse, a knife in a public place (other than in very limited circumstances), anything intended to be used to injure or menace a person or damage property, alcohol, or a prohibited drug. 11. Control 11 - prohibition from accessing or using any mobile telephone other than one provided by the Police, with limitations on what can be done with the provided telephone. 12. Control 12 - prohibition from accessing or using any landline telephone other than one provided by the Police, with limitations on what can be done with the provided telephone. 13. Control 13 - prohibition on using any public telephone unless for an emergency and an obligation to report such use to the Police. 14. Control 14 - Prohibition from accessing, using, or causing another to access or use on his behalf, any computer applications, or programs unless prior permission has been granted. 15. Control 15 - Prohibition from accessing, using, or causing another to access or use on his behalf any internet service unless prior permission has been granted (other than an automatic teller machine, contact tracing, or the ordering of food or other products or services). 16. Control 16 - Prohibition from accessing, using, or causing another to access or use on his behalf, any email service unless prior permission has been granted. 17. Control 17 - Prohibition from accessing, using, or causing another to access or use of his behalf, any computer or tablet device that is capable of accessing the internet unless prior permission has been granted (other than an automatic teller machine, contact tracing, or the ordering of food or other products or services). 18. Control 18 - Requirement to wear an electronic tracking device. 19. Control 20 - Requirement to consider in good faith participating in counselling or education for at least 60 minutes each week and a requirement to provide details about such counselling or education to the police.
4. It is useful to identify the provisions of s 104.5(3) that bear upon the respective Control Orders: 1. Under Div 104.5(3)(a), there is a power to impose prohibitions or restrictions on the person being in specified areas or places (Control 3). 2. The Court may prohibit a person leaving Australia under Div 104.5(3)(b)(Control 4). 3. The Court may impose a curfew under Div 104.5(3)(c), (Control 1). 4. 104.5(3)(d) relating to tracking devices (Control 18). 5. The power under Div 104.5(3)(e), namely, the ability to restrict association with individuals (Control 5). 6. The power under Div 104.5(3)(f) relating to the use technology, was in nine controls in the Control Order, namely 6, 7, 11, 12, 14, 15, 16 and 17. 7. The Court may impose reporting requirements under s 104.5(3)(i), (Control 2). 8. In relation to participation in counselling or education under Div 104.5(3)(l), this is expressed in Control 20.

Commander Booth's Evidence

1. I will now turn to the evidence of Commander Booth which will be in two parts. Firstly, looking to her evidence relating to limitation of Control Orders generally and secondly, looking at her evidence with specific references to the limitations in managing the risks associated with Mr Pender release into the community.
2. As previously mentioned, Commander Booth on the 23 September 2021 made an application requesting the Court to make an interim control order in relation to Mr Pender, which imposed the obligations, prohibitions and restrictions set out in the Control Order. An affidavit in support of the application sworn on 23 September 2021 ("Booth affidavit of support") was provided to the Federal Court in support of that request.
3. Commander Booth gave evidence regarding the efficacy of the Control Orders and made three affidavits to the Court in these proceedings. The first affidavit was sworn on 25 June 2021 ("Booth first affidavit"), the second affidavit sworn on 10 September 2021 ("Booth second affidavit") and the third affidavit sworn on the 27 September 2021 ("Booth third affidavit").
4. In Booth's affidavit of support at para 26, Commander Booth outlined that the application for an interim control order was the only suitable alternative to a CDO in addressing the risk of Mr Pender. That is extracted below: 26. I still hold the opinions that I expressed in my First and Second CDO Affidavits and, except where otherwise expressly stated below, I still believe that the matters I stated in those affidavits are true. However, I acknowledge that the Supreme Court of New South Wales, in considering the CDO application, may decide not to impose a CDO on the respondent. In that circumstance, and for the reasons I describe further below, I believe that the controls sought in my application to the Court for an interim control order present the only suitable alternative to a CDO in addressing the risk posed by the respondent, and that those controls should be imposed on the respondent.
5. Further, in Booth's affidavit of support at 30.1-30.4, she outlined the purpose of the controls, they are extracted below: 30.1 reduce the risk of the respondent having access to knives and other weapons 30.2 assist in the supervision of his compliance with mental health treatment 30.3 assist in the monitoring and control of his social media activity, and 30.4 prohibit him from engaging in activities, and associating with people, which increase the likelihood of him engaging in a terrorist act, or supporting or facilitating another person engaging in a terrorist act or engaging in a hostile activity in a foreign country.
6. In Booth's affidavit of support at [59], she made specific reference to Controls 1, 2 and 18 of the Control Order. That is extracted below: I have considered whether there are alternatives to the curfew requirement in Control 1, the reporting requirement in Control 2 and the electronic monitoring requirement in Control 18 that would reduce the impact on the respondent's personal circumstances while meeting the objectives identified above. In my view, there is no effective substitute which achieves those objectives. In particular, having regard to the risks posed by the respondent, I consider it is necessary to seek all three of these controls rather than, for example, only the curfew and the electronic monitoring requirements. In particular, I am conscious of the risk of the respondent's mental health and/or behaviour rapidly deteriorating. As noted above, each of these controls serves a different purpose and provides different information to police, which will assist in providing an overall picture of the respondent's 'normal' pattern of movements. This in turn will assist police to more quickly detect any deterioration in the respondent's mental health or behaviour, and any consequent escalation in the risk of him engaging in a terrorist act, support or facilitation of a terrorist act, or support or facilitation of engagement in a hostile activity in a foreign country.
7. As earlier mentioned Commander Booth gave evidence in these proceedings on how control orders work in practice and their limitations in managing the risk of a person like Mr Pender. This is discussed in further detail below.
8. Insofar as the controls that can be imposed under Div 104, Commander Booth identified the following limitations: 1. As a result of Mr Pender's mental health and drug and alcohol addiction, his behaviour tends to be unpredictable. This may mean that Mr Pender could breach a control, and escalate to violence, before that breach is detected. Commander Booth's evidence in this respect is extracted below (Booth first affidavit at [60] and [92]): 60. Dr Eagle and Ms Dewson identify a risk of Mr Pender consuming drugs and alcohol and mental health rapidly deteriorating. In these circumstance, I understand the opinion of Dr Eagle and Ms Dewson to be that his behaviour may rapidly escalate with the consequence that he commits a violent criminal act, including a serious Part 5.3 offence. In my opinion, a rapid escalation in behaviour, as opposed to a gradual escalation in behaviour, would reduce the opportunities for police to intervene prior to Mr Pender committing such an offence (even with the Proposed Controls in place). … 92. I am of the view that a control prohibiting Mr Pender from using a mobile device, computers or tablet, apart from those permitted by an AFP Superintendent, would assist police to monitor Mr Pender's compliance with the Proposed Control Orders (such as the prohibitions on associating with certain persons or accessing extremist material) and to identify risks arising from any changes in Mr Pender's behaviour. However, given the possibility that Mr Pender's condition could rapidly deteriorate, it is my opinion that such a control would not in and of itself be effective to prevent Mr Pender from committing a serious Part 5.3 offence. 1. Commander Booth stated the effectiveness of controls was dependent upon the willingness of Mr Pender to comply with them. In the past Mr Pender has had difficulty complying with conditions of parole and with following the rules of various rehabilitation programs, including because of his mental health and substance use issues (Booth first affidavit at [61]-[62], [78], and [93]). 61. Mr Pender has a long history of alcohol and drug abuse. In the event that Mr Pender were released into the community, based on my experience if he wished to access substances he would almost certainly be able to do so regardless of any efforts to prevent him from doing so. This is because of the ready availability of alcohol and, having regard to Mr Pender's associates and previous drug use, my expectation as to his ability to obtain drugs. In this regard, I note instances where Mr Pender has accessed methamphetamines and alcohol during his participation in rehabilitation and treatment programs. I refer to the Program Summary which was provided to me and which is annexed to this affidavit and marked 'SB-4.' From my review of the Program Summary I am aware that some of these instances included the following: 61.1 On 12 October 2012, Mr Pender was involved in a program run by the Holy Trinity School for Martial Arts. As part of this program Mr Pender spent 5 weeks at the Binacrombi Bike Park and Bush Cabins. On the same day, Mr Pender consumed alcohol after taking Ritalin, which had been prescribed to him. Mr Pender committed an offence of stalking and intimidation and was treated for substance induced psychotic symptoms. 61.2 On 30 August 2016, Mr Pender was placed at the Campbelltown Integration Support Centre. On 1 September 2016, Mr Pender admitted that he had used methamphetamines and on 2 September 2016, Mr Pender committed an offence of stalking and intimidation under the influence of methamphetamines. 62. I am also aware from my review of the Program Summary of the following instances where Mr Pender was able to procure substances whilst under the supervision of Community Corrections: 62.1 On 17 May 2017, Mr Pender disclosed to the Parramatta Community Corrections that he had used methamphetamines and had gotten into a fight the night before; 62.2 On 30 May 2017, Mr Pender disclosed to Parramatta Community Corrections that he had used methamphetamines in the last 24 hours; 62.3 On 1 June 2017, Mr Pender informed Parramatta Community Corrections that he was feeling mentally unwell and 'out of control.' On assessment at Concord Repatriation General Hospital it was noted that Mr Pender had used methamphetamines. … 78. In my opinion, to be effective, these controls would require Mr Pender's willingness to make an effort to comply with them. However, from the Programs Summary, I understand that Mr Pender has previously breached bail undertakings regarding the use of drugs and alcohol, which makes me doubt that he would have the willingness to comply. … 93. This control would be most effective if Mr Pender ensures that he always carried his phone with him (that is, the one permitted by the AFP) and ensures 'that that the phone is always fully charged. I have concerns regarding Mr Pender's willingness to do this, having particular regard to Mr Pender's history of non-compliance with conditions as is apparent from the Programs Summary and the symptoms of his mental illness described in the Eagle and Dewson Reports. 1. While a control order can prohibit possessing drugs and alcohol for consumption, and possessing weapons such as a knife, those items are freely available in the community and the mere imposition of a control order cannot prevent Mr Pender obtaining them. Her evidence is extracted below (at [52]-[53] Booth second affidavit): 52. For example, whilst controls could prohibit Mr Pender from possessing alcohol and drugs, Mr Pender could still access these in the community. Mr Pender could easily access alcohol whilst attending a local restaurant for a meal or he may obtain substances in the community from associates. 53. Mr Pender could also default on his mental health treatment and suffer the onset of symptoms which could cause a rapid decline in his mental condition. In my opinion, if Mr Pender took drugs and/or his mental state declined rapidly whilst he is away from his accommodation, he could quickly procure some form of weapon and in a short period of time commit a violent offence, including a serious Part 5.3 offence. The form of weaponry Mr Pender would likely be one of convenience, such as a knife obtained from a store, a local restaurant or from the cutlery which may be available in his approved accommodation. To this end, whilst the imposition of housing arrangements is a positive development, it does not substantially alleviate the risks I identified in my First Affidavit and it does not significantly improve the effectiveness of the entirety of the Proposed Controls. 1. Further, in relation to prohibited items in Booth's first affidavit (at [88]-[91]) it was identified that the primary concern in Mr Pender's case is the risk of using a knife given his history and noted the respective limitations. That is extracted below: 88. I am of the view that a control prohibiting Mr Pender from possessing or using certain items such as a knife, weapons and other specified items capable of being used in a terrorism offence would reduce his risk of committing a serious Part 5.3 offence. I note that several instances of his past offending have involved the threat of using knives. 89. In my experience, each of the prohibited items are relatively easy to obtain and, based on my experience, I can readily envisage a circumstance where Mr Pender could procure a prohibited item without police becoming aware of that having occurred (even with the Proposed Controls in place). Since, based on the opinions expressed by Dr Eagle and Ms Dewson, Mr Pender's violent behaviour can escalate rapidly as a consequence of mental illness and/or drug and alcohol use, in my opinion his possession of a knife poses a high risk scenario in terms of the risk of him committing a serious Part 5.3 offence. 90. Even absent a rapid escalation in behaviour, the effectiveness of this control would depend on the ability of police to monitor compliance and, even with such monitoring, the risks of Mr Pender quickly procuring some form weapon are in my opinion significant. 91. These risks also arise in connection with improvised weapons (for example a fork or a brick), which are not sensibly possible to prohibit under a control order. For example, if Mr Pender is going to live independently, he will need access to cutlery, but such implements can be readily adapted for use as a weapon. For that reason, a prohibition on the particular weapons described above cannot significantly reduce the risk. of Mr Pender using some form of weapon to commit a serious Part 5.3 offence. 1. Some of Mr Pender's past offending behaviour has been precipitated by coming into contact with police. Monitoring of compliance with and enforcement of control orders depends upon police interacting with Mr Pender. Police involvement may serve to aggravate Mr Pender and either undermine police building rapport with him or even precipitate further offending. This evidence is extracted below (at [102]-[106] Booth first affidavit): 102. I have noted above my concern as to the risk of Mr Pender committing violent acts, including acts that may constitute a serious Part 5.3 offence, directed at police in the context of police monitoring and enforcing the Proposed Controls. The risk posed by Mr Pender to police is something which is touched upon in the Eagle Report and the Dewson Report, but specific consideration is not given in either report to the fact that the enforcement of many of the available less restrictive measures would put Mr Pender is close contact with police. I consider this to be a significant issue, particularly in circumstances where the index offence was an incident involving police officers. 103. Mr Pender has a long history of non-compliance with directions from authorities, including police. This non-compliance behaviour at times appears to be exacerbated by Mr Pender's mental illness and any drug or alcohol use. Mr Pender has on a number of occasions demonstrated antagonistic behaviour towards police, including threats of violence against police officers and their families. In certain circumstances, police appear to have the effect of triggering Mr Pender's violent behaviours, particularly when he is affected by episodes of mental illness or is under the influence of drugs or alcohol. 104. In the event that Mr Pender were released into the community, monitoring of compliance with the Proposed Controls would require that police have regular interaction with Mr Pender. In my experience, the rapport built between police and an offender who is subject to control order can assist with compliance. For example, a good relationship between police and an offender, and with the offender's close friends and relatives, can in turn promote open communication and assist police in maintaining up to date knowledge of the offender's activities and also to identify any escalation or potential for escalation in the offender's risk profile based on changing circumstances. 105. However, in my opinion, it would be very difficult for police to safely interact with Mr Pender in a way that was conducive to building rapport. This is for the reasons identified at [75] above and because the level or risk posed by Mr Pender of committing a violent offence (including against police officers) would necessarily mean that the way police plan and conduct any non-routine engagement with Mr Pender would have to be calibrated to that risk, assessed on a case-by-case basis. 106. Of course, the consequence of this necessarily conservative approach to the safety of police is that it may in fact lead to heightened tensions in interactions between Mr Pender and police (as well as other law enforcement and emergency services), which may not only damage rapport but could also provide a trigger for Mr Pender to engage in offending behaviour. This will in turn reduce the ability to monitor Mr Pender and the effectiveness of the controls more generally. 1. Commander Booth stated an obstacle to monitoring Mr Pender's compliance with any control order was his lack of support from family and friends. This network cannot be used by police to gather information in relation to any risk-signalling behaviours displayed by Mr Pender (at [57]-[58] Booth second affidavit): 57. I am aware from the materials provided to me that Mr Pender has not received any visits during his incarceration and lacks any support in the community from family or friends. Mr Pender's primary sources of support in the community will be his professional network (for example Mr Pender has been linked to ESP, has NDIS funding and has supported accommodation). Whilst the professional networks may assist Mr Pender integrate into the community, the lack of support from family or friends limits the effectiveness of the Proposed Controls for the following reasons. 58. In my experience, the rapport built between police, an offender and the offender's pro-social network (including relatives and friends) can assist with compliance with controls. For example, a good relationship between police and an offender, and with the offender's close friends and relatives, can in turn promote open communication and assist police in maintaining up to date knowledge of the offender's activities and also to identify any escalation or potential for escalation in the offender's risk profile based on ' changing circumstances. These options are not available for Mr Pender given the limited support he has in the community.
9. Further, Commander Booth gave evidence that a control order cannot address some of Mr Pender's risk factors arising from his mental illness and drug/alcohol addiction, and other risk factors. Her evidence in this respect is discussed further below: 1. While a control can include a requirement that a person participate in specified counselling or education, a person was only required to participate if the person agrees, at the time of the counselling or education, to participate in the counselling or education: s104.5(6). If Mr Pender does not agree to participate in those activities, a condition of this kind imposed upon him therefore cannot be enforced. This evidence is extracted below (at [81] Booth first affidavit): I note that both the Eagle and Dewson Reports note self-reports by Mr Pender of drug addiction. It is possible that a control can impose a requirement that the person participate in specified counselling, including drug counselling. Under Division 104 of the Criminal Code (Cth), a control requiring participation in specified counselling or education may be made). However such controls are not enforceable. Such controls leave it open to the person to agree or refuse, to participate in the counselling or education. This is also subject to the availability of such programs and their willingness to accept Mr Pender, which is not something within my knowledge and is not something· the AFP can control. In my opinion, even if this control were imposed, the effectiveness of this control would be limited unless a program or programs could be identified, they were willing to accept Mr Pender and Mr Pender was willing to participate in the program or programs. 1. Commander Booth stated that, while electronic monitoring can be imposed, there is no power to impose scheduling as often as what occurs in conditions of an extended supervision order under the CHRO Act or THRO Act. While electronic monitoring can be used in combination with scheduling to promote attendance at medical appointments and pro-social activities, that cannot be done under control orders. Further, while electronic monitoring can be used to monitor compliance with other conditions of the control order, it obviously cannot indicate whether Mr Pender is consuming alcohol or drugs, procuring a weapon, approaching police officers or suffering from a rapid decline in his mental health (at [101] Booth first affidavit). Commander Booth stated: There is also a risk that Mr Pender may remove the electronic monitoring bracelet (for example, by using a knife to cut it off) and commit a violent offence before authorities are able to take enforcement action. Mr Pender could also conceivably commit a violent. offence whilst wearing an electronic monitoring bracelet. Three recent events illustrate this risk…. 1. A control order must in terms specify the persons with whom the offender is prohibited from associating: s 104.5(3)(e). Unlike an extended supervision order under the CHRO Act and THRO Act, there is no ability to give a supervising officer the power to direct non-association with particular offenders not identified in the order. This evidence is extracted below from ([55]-[56] Booth second affidavit): 55. It is possible for the Proposed Controls to prohibit Mr Pender from communicating or associating with specified individuals, and the Proposed Controls could do so in relation to persons currently known to Pender. For example, the Proposed Controls would prohibit Mr Pender communicating or associating with any person currently detained in correctional centre. However, the Proposed Controls cannot prohibit Mr Pender developing new, negative associations when he enters the community. 56. If anti-social association were identified subsequent to the controls being made, there would be no breach of the controls and so the AFP could take no action in relation to it. It would not be possible to vary an Interim Control Order to prohibit the new, anti-social association. Additionally, it would be not be possible to rapidly amend the Confirmed Control Order, as a fresh application would need to be made. The effect of this is that Mr Pender may form new associations with anti-social persons in the community without being in breach of the Proposed Controls and without the AFP being able to vary the controls quickly to prohibit that association. Dr Eilis's Court Report suggests that one way to manage Mr Pender in the community would be through non-association directions in order to manage the potential for antisocial peers to influence him, including through online channels. While there may be power under the Terrorism (High Risk Offenders) Act 2017 (NSW) to impose a condition empowering the relevant officer to direct non-association with new persons, there is no such power under Div 104. As explained above, the only power under Div 104 is to impose a control which in its terms prohibits association with specified individuals. 1. There is no power under a control order to require Mr Pender to take medication as prescribed, or to submit to regular forensic procedures (absent a suspicion that he has failed to comply with a control) (Booth First affidavit at [82]): There are limits to the AFP's ability to monitor compliance with these controls, beyond conducting observations of Mr Pender which may catch him in the act of consuming alcohol or drugs or undertaking a search of his home or person to find evidence of such consumption. Significantly, there is no ability to obtain a forensic procedure order for the mere purpose of monitoring compliance with a control order. A particular difficulty in monitoring compliance in Mr Pender's case is that, as noted above, some symptoms of his mental illness may appear similar to symptoms of being drug or alcohol affected, and so in the absence of forensic procedures it may be difficult to form conclusions about whether Mr Pender is taking drugs and alcohol or not. 1. The result is that Mr Pender may exhibit behaviours that signal an elevated risk, such as failing to take medication or seeming intoxicated but without the ability to take action for breach of the control order (Booth second affidavit at [35]). This may mean that even if Mr Pender's decline were gradual and not rapid, police could not take action under the controls in relation to it (Booth second affidavit at [36]): 35. The result is that a number of the concerns relating to Mr Pender's risk to the community fall outside the ambit of what could represent a breach of the Proposed Controls. For example, Mr Pender may fail · to comply with aspects of assertive mental health measures such as a failure to attend for a urine test under a CTO or a failure to take prescribed medication. However, such non-compliance would not represent a breach of the Proposed Controls and police would not have the power to arrest Mr Pender on that basis. This could result in the ongoing deterioration of Mr Pender's condition without intervention by police. 36. While I have particular concerns about the ability of the Proposed Controls to address a rapid escalation of Mr Pender's behaviour, I also have concerns about the ability of the Proposed Controls to manage risks arising from any gradual decline in Mr Pender's behaviour. While there may be indicators of such a decline - such as presenting in the community as heavily intoxicated or apparently under the influence of illicit substances - this would not constitute a breach of the Proposed Controls the police could not take action in relation to it. 1. In relation to reporting it was identified in Booth's first affidavit at [75]-[76] that is sometimes difficult to distinguish in the context of reporting changes in effect based on mental illness and those based on drug or alcohol. This is extracted below: 75. In my opinion, an important outcome of the reporting requirement is the ability of police monitoring compliance with the controls to observe the affect of the person reporting. Over time, as police become more familiar with a person's usual affect, it becomes easier to identify changes in behaviour and to adapt control order monitoring behaviour to adjust for changes in apparent risk. My experience with policing mentally ill and drug and alcohol affected persons is that it is sometimes difficult in the context of reporting to distinguish between changes in affect based on mental illness and drug or alcohol use. In the context of Mr Pender, this difficulty is exacerbated by the following factors: 75.1 firstly, there are a number. of different people within the HRTO team who Mr Pender may report to and, for operational reasons, unlikely that he would report to the same person on a regular basis; 75.2 secondly, having regard to Mr Pender's risk profile, reporting may need to occur by way of Skype or other forms of audio visual link which will make it difficult for the HRTO team to build rapport with Mr Pender or to observe his affect; 76. The above circumstances are likely to be a difficulty faced in monitoring Mr Pender.
10. In regards to the curfew in the control orders Commander Booth gave the following evidence: 1. In Booth's first affidavit at par 70 she acknowledged that that is a tool to manage Mr Pender's risk. However, it was noted that those opinions were expressed at a time when Mr Pender's housing had not been confirmed and so she expressed some views identifying the limitations in that context. That is extracted below (at [71]-[74] first Booth affidavit): 71. In my opinion, these controls would be particularly effective in circumstances where: 71.1 Mr Pender has stable housing; and 71.2 Mr Pender's mental health is stable and he is not under the influence of alcohol or drugs. 72. A curfew is only effective to manage risk if it is complied with. If Mr Pender does not have stable housing, it may be more difficult for him to develop a routine that enables him to ensure he complies with his curfew and to report when required. Having regard to the opinions about risk in the Eagle and Dewson Reports, as well as my own experience policing drug and alcohol affected persons, he may also experience such difficulties if he is affected by drugs and alcohol. 73. A curfew is also only effective to manage risk during the hours of the curfew itself. However, I acknowledge that much of Mr Pender's offending does appear to have occurred at night (for example, the index offending occurred at around 2 am). 1. In Booth's second affidavit she returned to the issue of the curfew in a context where Mr Pender's housing had been approved and recognised that in circumstances where he had permanent housing, the efficacy of the curfew would be improved however it was noted that this does not "significantly improve" the effectiveness of other orders. That is extracted below: 50. Stable housing may also assist Mr Pender with developing a routine which enables him to ensure that he complies with his curfew and to report when required. It would also provide Mr Pender with the means to charge his mobile phone (that is, the one permitted by the AFP) (see [92]-[95] of my First Affidavit) and electronic monitoring device (see [99]-[101] of my First-Affidavit), which would ensure that police could contact and monitor him as required. 51. However, whilst stable housing will improve the effectiveness of enforcing the controls relating to Mr Pender's curfew and reporting, it would not significantly improve the effectiveness of the other Proposed Controls in reducing Mr Pender's risk overall. 1. Further, in Booth's second affidavit at [53] she stated: Mr Pender could also default on his mental health treatment and suffer the onset of symptoms which could cause a rapid decline in his mental condition. In my opinion, if Mr Pender took drugs and/or his mental state declined rapidly whilst he is away from his accommodation, he could quickly procure some form of weapon and in a short period of time commit a violent offence, including a serious Part 5.3 offence. The form of weaponry Mr Pender would likely be one of convenience, such as a knife obtained from a store, a local restaurant or from the cutlery which may be available in his approved accommodation. To this end, whilst the imposition of housing arrangements is a positive development, it does not substantially alleviate the risks I identified in my First Affidavit and it does not significantly improve the effectiveness of the entirety of the Proposed Controls.
11. In relation to limitations around medication in Booth's second affidavit it was identified that failure to take prescribed medication would not be a breach under the proposed control order. That is extracted below (at [35] and [62]): 35. The result is that a number of the concerns relating to Mr Pender's risk to the community fall outside the ambit of what could represent a breach of the Proposed Controls. For example, Mr Pender may fail · to comply with aspects of assertive mental health measures such as a failure to attend for a urine test under a CTO or a failure to take prescribed medication. However, such non-compliance would not represent a breach of the Proposed Controls and police would not have the power to arrest Mr Pender on that basis. This could result in the ongoing deterioration of Mr Pender's condition without intervention by police. … 62. Further, as outlined in paragraph [35] above, the Proposed Controls are also limited by the inability of police to take action in respect of behaviours which may indicate or signal a rapid or gradual deterioration of Mr Pender condition (for example, failure to attend for a urine test or a failure to prescribed medication). As noted above, such behaviour cannot be the subject of a Proposed Control and would not constitute a breach of the Proposed Controls.
12. In summary, Commander Booth considered that the controls that could be imposed under Div 104 would only reduce Mr Pender's risk of committing a serious Pt 5.3 offence to a limited extent. That is, in summary, because there are limitations inherent in the controls that can be imposed on Mr Pender, and there are a range of risk factors for Mr Pender in respect of which there is no power to impose controls at all.
13. I will now turn to the submissions of the parties relating to the limitations of Control Orders either by reference to mitigating risk per se or by comparisons with the state regime under the CHRO or THRO. I will turn to my overall conclusion in this respect at the conclusion of my judgment.
14. The plaintiff in this respect relied largely on the evidence of Commander Booth. Mr Pender's response is also noted although he occasionally relies compendiously upon a combination of orders with respect to a particular issue.
15. I will firstly turn to the limitations around reporting.

Reporting

1. The reporting requirement in the Control Order is Control 2.
2. The plaintiff in this respect placed reliance on the evidence of Commander Booth whereby it was identified that a limitation relating to reporting is that it is difficult for police to be able to identify whether the change in an individual is as a result of mental illness or the effects of drugs or alcohol.
3. As to the same, the defendant submitted that the control order permits ongoing monitoring of the defendant (through electronic monitoring at all times, daily reporting, a curfew, and presumably surveillance of his telephonic and electronic communications). Any concern about the deterioration of the Mr Pender's mental health will be able to be readily discerned by those supervising him and immediate action taken.
4. Although as identified there may be a difficulty in police officers being able to determine whether a change in Mr Pender's behaviour is as a result of drugs and alcohol or his mental illness this does not negate the ability for deterioration to be identified. Further, this concern can be mitigated by a combination of other controls in the control order such as a curfew and electronic monitoring. Thus, if there is concern about the deterioration this can be identified by those supervising him and action can be taken. I do not consider there is a significant limitation with respect to reporting.
5. I will now turn to the particular limitations in relation to drugs, alcohol and knives.

Drugs, Alcohol and Knives

1. Control 3 and Control 10 are summarised above and relate to prohibited places and prohibited items.
2. In relation to the limitation of the Control Order in mitigating the risk of the acquisition of drugs, alcohol, and knives the plaintiff submitted:
3. That Control 3 provides some tool for managing Mr Pender's risk of consuming alcohol, however it is fairly limited in its effect. Reliance was placed in this submission on the third prohibited place, namely, any premises whose primary business is selling or serving alcohol, This submission is extracted below: The prohibition in Control 3 is confined to a premises whose "primary" business is to sell or serve alcohol (e.g. pubs and bars). As such, it does not extend to all "businesses selling alcohol" (cf DS [72]). It does not include businesses which sell alcohol incidentally to some other function (e.g. the provision of food, such as cafes/restaurants). And it would not be effective to control the illicit acquisition of alcohol. 1. Control 10 is the prohibition on alcohol and drugs. The plaintiff advanced the submission that the essential limitation of a control order is not that it cannot include measures restricting the use of drug and alcohol, rather the limitation is one of enforcement. Reliance was placed on the difficulty in proving a breach of the prohibition on consumption, because there is no power under Div 104 to require Mr Pender to undertake drug or alcohol testing, therefore, it was submitted the only sure way to prove Mr Pender has consumed drugs or alcohol is to catch him in the act of doing so. 2. Further, it was submitted that there are limitations in relation to the prohibition of obtaining and using a knife. The prohibition is possessing a knife in a public place, unless seated in a restaurant, café, or if it is a plastic or disposable knife. It was conceded that there needs to exceptions for practical reasons, however, it was submitted that there is the real possibility that if he came into possession of a knife in a public place, things could escalate very quickly and a violet act could occur. 3. Reliance was also placed on the evidence of Commander Booth, around the limitations of the control order in preventing Mr Pender from obtaining drugs, alcohol or a knife.
4. The defendant's submission made reference to a range of control orders that collectively address the risk of Mr Pender acquiring drugs, alcohol and knives. That submission appears below: 1. The proposed control order does include conditions capable of monitoring Mr Pender's abstinence from alcohol and drugs. Control 1 is a curfew between 9pm and 7am. Control 2 is a requirement that Mr Pender report daily, either by Skype, or in person. This condition will afford the Police the opportunity to make daily observations of Mr Pender. Control 3 provides that Mr Pender is prohibited from particular premises including businesses selling alcohol. Control 10 prohibits possession or use of alcohol or prohibited drugs and Control 11 permits police to monitor Mr Pender's mobile phone.
5. The limitation of the control order in managing the risks associated with Mr Pender obtaining drugs, alcohol and knives was a key limitation in the capacity of the seven measures in managing the risks posed by Mr Pender pressed by the plaintiffs. Essentially, I agree with the submissions put in that respect. There were a number of aspects to that contention.
6. Firstly, it may be accepted that two controls are specifically directed to the mitigation of risks associated with drugs and alcohol, namely, controls 3 and 10. However, those controls do not require Mr Pender to undertake drug or alcohol testing. It was submitted by senior counsel for Mr Pender that other controls operating in conjunction with controls 3 and 10 such as the curfew, reporting daily and electronic monitoring would be capable of monitoring and managing Mr Pender's abstinence from drugs and alcohol, but without the power to mandate drug or alcohol testing, a significant limitation in these controls remains.
7. Secondly, the plaintiffs also advanced submissions in regards to the limitation of control 3, dealing with "prohibited places". "Prohibited places" is a concept confined in the Control Order to businesses where their "primary business" is selling alcohol, such as bars and bottle shops. As a result, the Control order leaves out businesses who may sell alcohol incidentally, such as a café.
8. Thirdly, a similar submission was made by the plaintiff in relation to the prohibition of knives under control 10. The plaintiff was correct to submit that the control is limited in effect as it does not comprehensibly eliminate the risk of Mr Pender being able to obtain a knife. This is because the control order has exceptions whereby Mr Pender in limited circumstances can be in possession of a knife and not be in breach of the Control Order.
9. Commander Booth also gave evidence about the effectiveness of the control managing Mr Pender's abstinence from drugs and alcohol. Her evidence, in this respect, was that the effectiveness of the control is largely dependent upon the willingness of Mr Pender to comply. Relevant parts of Commander Booth's evidence from Booth's first and second affidavit, is extracted from below: if he wished to access substances he would almost certainly be able to do so regardless of any efforts to prevent him from doing so. This is because of the ready availability of alcohol… instances where Mr Pender has accessed methamphetamines and alcohol during his participation in rehabilitation and treatment programs.… Mr Pender was able to procure substances whilst under the supervision of Community Corrections.
10. Further, Commander Booth gave evidence relating to Mr Pender getting possession of a prohibited item even under the Control order due to the items being freely available in the community. Specific reference was made to the risk of Mr Pender obtaining and using a knife given his past offending. That evidence is extracted below: The form of weaponry Mr Pender would likely be one of convenience, such as a knife obtained from a store, a local restaurant or from the cutlery which may be available in his approved accommodation. … I note that several instances of his past offending have involved the threat of using knives. In my experience, each of the prohibited items are relatively easy to obtain.
11. Overall, there is a reasonably substantial limitation in controls 3 and 10, even when considered in the light of other controls in enforcing Mr Pender's abstinence from drugs and alcohol.
12. I will turn then to the application of the CTO in this respect.
13. Mr Pender is currently subject to a CTO which requires urine testing to be conducted once a month. In the application for the variation of the CTO on 1 October 2021, this was increased to urine testing being conducted as requested by staff. As a result the CTO can act in some respects as a way to "fill the gap" in the control in managing Mr Pender's abstinence to drugs and alcohol through the power to undertake testing although the impact will depend on the extent of the testing. However, as agreed by all of the experts, even with a control order and CTO in place Mr Pender's risk of disengagement, non-compliance with mental health treatment and substance use in the community would appear to remain high and would remain high even with the somewhat more stringent CTO. Alcohol is, under the respective orders, is accessible.
14. I will now turn to the curfew requirement.

Curfew

1. The curfew requirement as summarised earlier is in Control 1.
2. The plaintiff in submissions as to the limitations on the curfew in managing the risks posed by Mr Pender, placed reliance on the evidence Commander Booth. It was submitted that although the curfew is a measure that goes some way to managing Mr Pender the curfew nonetheless has limitations. As a result, even where there is a curfew in place there is still a risk that it can be breached and before the breach is detected, violent offending can occur.
3. On the other hand, the defendant submitted that the curfew requires Mr Pender to reside at a specified premise and that specified premise is the United for Care accommodation. If Mr Pender does not come back to reside at his accommodation between the hours of the curfew, that will be detected, therefore, as a result this control assists in mitigating the risk that Mr Pender posed.
4. I do not consider the limitations in this Control as substantial as contended by the plaintiff. There is a curfew in place between 9pm and 7am and majority of Mr Pender's past offending occurred at night, which aligns with when the curfew is in place. However, the plaintiff was correct to point to the history of Mr Pender's behaviour which was, unpredictable and unplanned behaviour, and his experience of rapid deterioration, posed a risk of violent offending. These are limitations in the Control Order but they are not such, in my views to wholly undermine the effectiveness of the curfew control.

Associations and susceptibility to influence

1. The respective controls in relation to the limitations of controls being able to mitigate the risk relating to Mr Pender's associations and susceptibility to influence are Controls 5, 6, 7 and 11-17.
2. The plaintiff's again placed reliance on the evidence of Commander Booth and the inherent limitations in the scope of power under the Criminal Code as opposed to state legislation. These submissions are summarised below: 1. A control order must in terms specify the persons with whom the offender is prohibited from associating: Div 104.5(3)(e). Unlike the THRO, where there may be power to impose a condition empowering the relevant officer to direct non-association with new persons, there is no ability to give a supervising officer the power to direct non-association with particular offenders that are not identified in the order. 2. Further, there is no power under Div 104 that, if it were identified there was a negative influence on Mr Pender, to vary a Control Order so as, to add a prohibition (s 104.11A(2)(b)) except by way of an application to vary. This will occasion delay. It was submitted by the plaintiff that time is a problem in Mr Pender's case and if it were to take a day or two to vary a control order that may be enough for Mr Pender to deteriorate. 3. In relation to control orders relating to technology, namely, Controls 6-7 and 11-17, submissions on limitations were primarily made to the measures being dependent on Mr Pender's compliance with the requirement that he only use the approved device issued by the AFP.
3. The defendants advanced the following submission: 1. In Booth's second affidavit she raised the concern that the proposed controls cannot prohibit Mr Pender developing new, negative associations adding that if anti-social associations were identified subsequent to controls being made there would be no breach of the controls and the Australian Federal Police could take no action in relation to it. The defendant submitted that this is not entirely correct. Section 104.11A of the Criminal Code provides that a senior member of the AFP may make an application to vary an interim control order and ss. 104.18 and 104.24 provides that an application can be made for the variation of a confirmed control order that nominates additional specified individuals. Once an anti-social association is identified there is a mechanism for the AFP to apply to vary Control 5 by adding nominated persons.
4. As correctly identified by the plaintiff there is a limited scope of power under the Criminal Code in comparison with state legislation. The THRO permits a relevant officer to direct non-association with respect to persons who freshly appeared and were not within the scope of the Control. Although, as identified by senior counsel for Mr Pender, the Control Order is able to be varied by way of an application (under s 104.11A(1)), this process takes time and only takes effect once the order for the variation is made (s 104.11A(3)). It is a relatively clumsy device.
5. In the case of Mr Pender who as previously identified experiences rapid deterioration, and unpredictable and unplanned behaviour, these limitations must be seen as affecting the overall effectiveness of this control in managing Mr Pender's risks.

Electronic Monitoring

1. Control 18 in the Control Order is summarised above and concerns electronic monitoring.
2. The plaintiff's submissions in this respect placed significant reliance on the comparison between state legislation and the Criminal Code and specifically around scheduling and the evidence of Commander Booth. Those submissions are summarised as follows: 1. The plaintiff relied on the Affidavit of Mr Nicholson affirmed on 23 September 2021 (the "Nicholson Affidavit"), which explained the way electronic monitoring works, namely, by a system of alerts. Comparisons were drawn between state legislation, such as THRO and the Criminal Code. The submission of Ms Hager is extracted below: …What does not occur in practice, for obvious resourcing implications, is someone sitting in front of the screen 24 hours a day, seven days a week, watching the beacon and tracking every single move that Mr Pender makes… It's an alert system and will just apparently be based on - when it comes to prohibited places - what is actually prohibited in the control order and that's quite limited. But the other limitation of electronic monitoring that I wish to draw attention to is the fact that, under div 104, there's not the possibility of using electronic monitoring in combination with scheduling, as your Honour would be aware often occurs in the context of extended supervision orders under the state regimes. So I think Mr Herzfeld summarised what scheduling is, but your Honour would obviously be aware of it, buy obviously scheduling is where the offender submits a schedule for approval to their DSO. That gets approved, and then once it's approved you can't deviate from it except in a case of an emergency, or sometimes with a reasonable excuse. And that schedule can include a whole range of things. Medical appointments, social activities, visiting family and friends, going to the library, doing physical exercise, those sorts of things. And so one could then program into the electronic monitoring system alerts that line up with that schedule, and so you get an immediate indication if the offender isn't attending his medical appointment, or if he hasn't undertaken his or her exercise on a repeated basis, which might be a signal that something has gone wrong, an early warning sign that there might be some elevation of risk. That's not possible here. Under s 104, there's just no power to comprehensive schedule of that kind. So that means electronic monitoring, its utility is more limited than under the state regime…. 1. While electronic monitoring can be imposed, there is no power to impose scheduling as often occurs as conditions of Extended Supervision Orders under the CHRO Act or THRO Act. While electronic monitoring can be used in combination with scheduling to promote attendance at medical appointments and pro-social activities, that cannot be done under control orders. Further, while electronic monitoring can be used to monitor compliance with other conditions of the control order, it obviously cannot indicate whether Mr Pender is consuming alcohol or drugs, procuring a weapon, approaching police officers or suffering from a rapid decline in his mental health. 2. The plaintiff also in this respect relied on the evidence of Commander Booth which is extracted earlier in the judgment around Mr Pender's lack of support from family and friends, and past offending behaviour with police.
3. As to the same the defendants made the following submission: 1. Although, it was conceded the electronic monitoring in itself cannot stop Mr Pender from buying alcohol or drugs, the position advanced was that when electronic monitoring is used in conjunction with other controls, such as reporting, it can effectively minimise the risk that Mr Pender poses. This is due in large part to the fact that, even though the electronic monitoring cannot stop Mr Pender from obtaining drugs or alcohol, if he is seen under the influence that will send a red flag, and action is able to be taken. Further, the return to drug use is not going to be committing an offence the first time he uses a drug, or the first time he has a sip of alcohol. It was submitted by senior counsel for Mr Pender, that the deterioration will be over time, and it is likely to be picked up by electronic monitoring working in conjunction with other controls in the Control Order. 2. Further, reliance was placed on the Nicholson Affidavit at para 21 and 22, whereby, it was identified that where a control order is made which includes electronic monitoring control in consultation with the AFP, there is the ability to generate a system and alerts that are tailored to meet the specific requirements of the control orders. Alerts can be made, inter alia, for exclusions zones (if the device enters or approaches a prohibited place or area). In this instance the device will alert the electronic monitoring unit will in turn notify the supervising staff and/or the AFP to action and respond, in turn resulting in a higher level of monitoring to take place.
4. Electronic monitoring is a tool which can assist in managing risks associated with Mr Pender. Plainly, as was properly conceded by senior counsel for Mr Pender it does have limitations, but its effectiveness needs to be judged in the lights of other controls operating conjointly.
5. However, in my view, the plaintiff is correct to submit a significant limitation in the Control Orders taken as a whole, and in this particular respect, is the inability to impose scheduling as a Control Order. Scheduling is not a component of electronic monitoring as such but it is often used as an important counterpart measure to electronic monitoring for risk management and rehabilitation in extended supervision orders made under the CHRO and THRO. Dr Ellis agreed that, the absence of scheduling is a significant detriment, (at T50.24-44).
6. Although, monitoring of Mr Pender is advanced by a number of controls in the Control Order, namely, daily reporting to police and a curfew, there are statutory limitations in the breadth of the controls in this respect which, having regard to the risks posed by Mr Pender in the community, substantially limit the overall effectiveness of the Control Order in mitigating risk.

Counselling or Education

1. Control 20 is the requirement for Mr Pender to consider in good faith, participation in counselling or education.
2. The plaintiffs advanced the following submissions relating to the limitations of this control, relying again on the scope of power under Div 104 and the evidence of Commander Booth. Those submissions are summarised below: 1. Section 104.5(6) is expressed in such terms which expressly provides that an offender cannot be required to participate in counselling or education, unless they agree to do so at the time of the counselling or education. Thus, it is a voluntary measure As stated in the evidence of the experts there is a substantial risk that Mr Pender will not engage. 2. In Commander Booth's first affidavit it was stated that, while a control can include a requirement that a person participate in specified counselling or education, a person is only required to participate if the person agrees, at the time of the counselling or education, to participate in the counselling or education. Therefore, if Mr Pender does not agree to participate in those activities, a condition of this kind imposed upon him therefore cannot be enforced.
3. It may be readily accepted that a limitation does exist in relation to any requirement that Mr Pender participate in specified counselling or education. This is largely due to its voluntary nature under s 104.5(6) of the Criminal Code. If Mr Pender does not agree to participate in those activities of this kind he cannot be enforced to.
4. This is a significant limitation in the Control Orders, particularly given the substantial absence of drug and alcohol counselling by Mr Pender to date, his substance abuse disorder and has propensity to not comply with controls of the use of drugs and alcohol.
5. Lastly, I will turn to the limitations surrounding medication.

Medication

1. It was submitted by the plaintiffs that a control order cannot require Mr Pender to take medication, and that the Control Order is, therefore, ineffective in addressing two key risk factors for Mr Pender, namely, his mental health and substance use disorder. In summary, the plaintiffs submitted: 1. While Mr Pender disputed that compliance with medication "is ... a risk factor that should be enforced by police", that is beside the point. The experts agree that Mr Pender's mental health, and compliance with his treatment regime, is a significant factor in his risk of committing a serious Pt 5.3 offence. While it is Mr Pender's mental health team who are to manage his medications, the fact remains that repeated non-compliance with medication would constitute a risk-signalling behaviour that, even if identified by police, they would have no power to address under the control order. 2. While it was conceded that it is possible that the police can work together with Mr Pender's mental health team, there are legal and practical barriers to the disclosure of information to police by those who administer CTO's. Reliance in this respect was placed on Booth's second affidavit. 3. In circumstances where Mr Pender's mental health is a risk factor centrally relevant to his prospects of committing a serious Pt 5.3 offence, this is a significant limitation in the efficacy of less restrictive measures.
2. The defendants submitted Mr Pender's failure to take medication is not a risk factor that should be enforced by police. Further, the absence of any express power to permit a police officer to enforce medication does not prevent police that may have a concern about Mr Pender's compliance with his medication raising the issue with his treating team. Rather, it places the decision of how to manage this issue with qualified professionals.
3. I accept that there is a significant weakness in this control in managing Mr Pender's risk. Unlike a CTO where there is a power under the Mental Health Act to impose regular procedures, obligations to take medication as prescribed and the ability for a breach notice to be issued where there is non-compliance, there is no power under a control order. As a result the Control Order cannot monitor whether Mr Pender is take medication as prescribed, or to submit to regular forensic procedures (absent a suspicion that he has failed to comply with a control).
4. Due to Mr Pender's previous offending occurring at times where he has failed to take medication and the significance attached by the independent experts, in terms of risk, to deterioration in his mental health, considerable weight must be given to the limitation in the Control Order in this respect.
5. Overall, this analysis is served to point to the existence of factors in the seven measures which may manage or mitigate the risk associated with Mr Pender as well as limitations in the effectiveness of the same. It may be accepted, as Mr Pender submitted that the controls must be considered in their totality or, as was contended, in combination with other measures in the suite of measures. That nonetheless requires a consideration of the overall effectiveness of each of the suite of measures with their inherent limits as well as considering the capacity of agencies who administer the respective measures to operate in a collaborative fashion.
6. That assessment of the suite of measures is not to be undertaken in the abstract. As I have noted with respect to various controls, Mr Pender's mental health and drug and alcohol addition to date have lacked predictability.
7. As I will discuss, viewing risk through the prism of Mr Pender's stabilisation in custody lacks some potency as a means of prediction as to his behaviour in the community. He has a history of an unstable profile, a propensity to disengage and be non-complaint (such as with parole and rehabilitation programs). The likelihood of Mr Pender breaching a control or evading the effect a measure, particularly in alcohol and drug abstinence, the taking of medications and undertaking counselling remains a real and substantial prospect. If that occurs, it is highly likely he will deteriorate rapidly in his mental state and present a real risk of engaging in violence.

CONSIDERATION

1. Acknowledging that the Court has a residual discretion as to whether or not a continuing detention order will be made, and having regard to the aforementioned principles as to the operation of the Division, the issue essentially arising for determination in these proceedings was as follows: 1. After having regard to the matters in accordance with s 105A.8 of the Criminal Code, is the Court satisfied, to a high degree of probability, on the basis of the evidence admitted in the proceedings, that Mr Pender poses an unacceptable risk of committing a serious Pt 5.3 offence if he is released into the community under or within the purview of the seven measures.
2. Commensurate with the CDO made by the Court, that question has been answered in the affirmative. The corollary of that position is that there was no other less restrictive measure that would be effective in preventing the unacceptable risk, given that the answer to that question is predicated upon these existing or available suite of measures. Finally, it was inappropriate, in my view, to exercise a residual discretion to refuse the relief sought by the plaintiff.
3. By way of the further discussion of my reasons for those conclusions, it is appropriate to commence with a closer consideration of the nature of the risk posed by Mr Pender.
4. I consider the risk disclosed by the evidence in this matter is the risk of Mr Pender committing an act with a terrorism-related intent. Broadly speaking, I consider the primary risk to be one of committing the requisite offence referred to in s 105A.7(1)(b) with the intention of advancing a potential, religious or ideological cause and coercing or influencing by intimidation the government or intimidating the police or a section of the public service.
5. For the purposes of s 105A.8(1)(a), and having regard to the expert evidence in the proceeding to which I will return (see, for example, Dr Eagle at [447] and Dr Dewson at [74]-[76]), the serious Pt 5.3 offences that Mr Pender is likely (to the requisite standard) to commit are three fold. First, there is the risk of engagement in a terrorist act contrary to s 101.1 of the Criminal Code. The index offending involved that intention. However, the risk extends, secondly, to the further category in which the index offence actually fell, namely an offence contrary to s 104.4 of the Criminal Code. In both cases, Dr Eagle gave the example of carrying a knife with the intention of causing physical harm to a police officer or member of the Australian police motivated by an extreme Islamic ideology. Lastly, there is a risk of doing an act in preparation for, or planning a terrorist act contrary to s 101.6 of the Criminal Code.
6. There are a series of matters or factors which demonstrate why the risk posed by Mr Pender committing a serious Pt 5.3 offence if released into the community is unacceptable?
7. The first factor is Mr Pender's prior offending.
8. It may be accepted that Mr Pender's offending is intimately connected with his mental illness and substance abuse disorder. Those matters featured in the sentencing judgment of Harrison J in Pender (at [47]) and the opinion of the experts (see for example Dr Eagle's report at [448.4.3]).
9. However, that consideration does not diminish the significance of Mr Pender's prior offending (including his criminal history other than the index offence) or other acts so far as they bear upon the question of risk for the purposes of s 105A.7(1)(b). Rather, the independent experts opined they are themselves significant risk factors, particularly as any offending engaged in by Mr Pender is likely to be spontaneous or impulsive rather than a planned attack. This factor also has relevance to the question of managing the risk in the community under the suite of measures, to which I will return.
10. Whilst the index offence represented an offence found to be in the lower range of objective seriousness, it nonetheless involved the intention element of the definition of a "terrorist act". That definition is broad and extends to conduct done with the intention of advancing a political, religious or ideological cause with the intention of coercing that government or intimidating the public or a section of the public (s 101.1).
11. Further, as I have earlier found, Mr Pender's prior offending demonstrated willingness to target law enforcement officers and bore the characteristics of extremism in a sense of a fanaticism of a broad religious character. This is demonstrated by the circumstances of Mr Pender's offending of 14 October 2015.
12. As also noted by Harrison J, in Pender, Mr Pender's general offending has persisted despite several periods of imprisonment. He has often reoffended when released from custody. He has breached parole, including shortly after release. These considerations and the spontaneity of Mr Pender's actions bear upon the nature and extent of the risk.
13. There are further factors bearing upon the nature and extent of the requisite risk .These factors are three fold: firstly, Mr Pender's ongoing fixation with religion including his history of engaging with Islam; secondly, his viewing or propounding of extremist material; and thirdly, his correspondence with extremist offenders who are in custody and threatening to engage in "martyrdom". The three factors are inter-related.
14. As to the first consideration, it may be accepted in accordance with my earlier summary, that Mr Pender has changed his religious affiliation over time. A significant fixation has been Islam. He explained that he had previously reverted to Islam on one occasion as a protective measure although that explanation does not sit well with what the experts assessed as to the nature of his engagement with religion over time. I consider that explanation to be doubtful as discussed below.
15. Mr Pender has consistently been fixated on religion, although his particular religious affiliation has changed over time; most recently, from Islam to Judaism in March 2021. Dr Dewson opined that "Mr Pender continues to present with a fixation on religion and he appears to swap religions almost instantaneously": Dewson Report [70]. On that basis, she concluded that "the stability of his current beliefs as a protective factor is questionable": [70]. Dr Dewson stated that his religious fixation "coupled with violent tendencies, and lack of personal identity renders Mr Pender vulnerable to indoctrination regardless of the religion he follows at the time": [86(VI)]. Dr Eagle noted that Mr Pender "appears highly susceptible to religious doctrine including extreme religious beliefs due to a need for belonging, a search for meaning and a potential craving for excitement and adventure": Eagle Report [448.4.3(v)]. She stated the "apparent fluctuation of his beliefs would further suggest he is susceptible to the development of or return to an extreme ideological belief system that justifies the use of violence": [448.4.3(v)].
16. Further, an Assessment Report prepared by Countering Violent Extremism Programs in CSNSW in September 2020 recorded fluctuating interests in Islam, Catholicism, Judaism and Buddhism. Mr Pender reported that "his life has flipped between extremes of good and bad, and that when it is bad he returns to Islam". A pre-release report dated 24 April 2021 records: Since the completion of the previous pre-release report, Mr Pender has maintained his preoccupation with religion. However, he reverted to Islamic beliefs for a period until more recently re-adopting the Judaic faith because he "realised" Islam no longer serves his interests
17. As to the second and third of the group of factors, the following examples amply demonstrate the nature and extent of the risk: 1. As recently as earlier this year, Mr Pender has shown an interest in making contact with other inmates convicted of terrorist offences and with professing religiously motivated sympathy for their causes. On 20 January 2021, Mr Pender wrote an unsolicited letter to Ms Bridget Namoa, who was at the time serving a sentence for conspiracy to commit acts done in preparation for or planning a terrorist act. He said he was Ms Namoa's genuine loyal brother and that he had "got her back"; that they had both been labelled extremists and unfairly treated; that as long as a believer stays on the straight path, that is all that matters; that he admired the fact that she wore a niqab and that she was a "pious sister"; and that he and Ms Namoa knew that they "must follow the ways of the Salaf, Allahu Akbar". Mr Pender has subsequently sought to explain this correspondence as an attempt to appease the Islamic extremist population in gaol (Dewson Report [63];Eagle Report [441.2.7.1], [441.4.6.1]). He also stated that he sympathised with Ms Namoa because he had heard that she had been betrayed by her ex-boyfriend (Eagle Report [254]). I accept the plaintiff's submission that less weight be given to these explanations, given Mr Pender's obvious interest in providing them in the context of the present application. 2. The plaintiff submitted that there is other evidence that demonstrates a real potential for Mr Pender to commit an act with "the intention of advancing a political, religious or ideological cause". Having reviewed that evidence, which is summarised below, I accept that submission. The material is as follows: 1. In 2015, the National Security Hotline received a report about recent threats Mr Pender had made at a local hotel whilst using Islamic terminology. 2. In 2015, Mr Pender posted extreme terrorism-related materials on Facebook. Those included: 1. A Facebook post in which Mr Pender wrote: Fuck the Australian government fuck the Australian people fuck the Anzac's may Allah give them eternal torment insha Allah death to the police death to the army death to all who opposed Islam and Rasoolu Allah salallahu aleyhi wasallam... Death to the infidels. 1. A video in which Mr Pender said: I am Abu Abdullah Al Australi. I am a budding Mujhadeen ("holy warrior"). I bring this as a message to the people of Australia. The war with Muslims has just begun. Your country, your government, your people, your way of life will not be sustained for much longer. The Sharia will be implemented. The law of Allah will be implemented, The Quran and the Sunnah will be the only books read. Islam will be prevalent; there will be no more western way of life. As I prepare for martyrdom, jihad, being a Mujahideen. Consider me the first droplet of blood in the river that will follow. The war with Muslims has just begun Allah Akbar (God is great). 1. In late 2015, Mr Pender sent threatening text messages to Mr Trama which included the statement that "Islam will take over and none of you will be martyrs you're going to hell all Christians are". 2. Mr Pender's web history in 2015 included results for "Jihadi Jake Bilardi - from Australian suburban schoolboy to Islamic State suicide bomber". 3. In 2016, while on parole, Mr Pender asked a friend, Mr Cameron Birchall, to help him make a film of Mr Pender beheading someone with the ISIS flag behind him, to send to ISIS, on the footing that he was "sick of the Australian Government and did not want to live in Australia any more" and that they would go to paradise if they were killed. Mr Birchall reported to police that Mr Pender regularly said things of this nature, including that if he could not get to Syria, he would blow himself up at Parramatta Police station. Mr Pender borrowed money from Mr Birchall, ostensibly for the purpose of purchasing a Blackberry telephone that he would use to contact people in Syria in relation to obtaining funding to travel there and fight with ISIS. 4. In 2017, while in custody, Mr Pender had a phone call with a person described as Megan Webb (I have earlier made reference to the relationship with a "Megan Webb"). During the call, Mr Pender said that he was gearing himself up for martyrdom and that he was going to become a martyr when released from gaol. He stated that he was "seriously going to behead some cunt". He continued "see if you mother fuckers can stop me. Allah Akbar. Fuck you all. You're all dead". He also said: "consider me the first drop of the blood in the river that will follow. Done. I'm done. I'm done. What are you doing anyway", "death to the enemy Allah Akbar. Fuck the enemy. Allah Akbar. Death to the enemy", and "I'm dying for the cause when I get out ... I love you, l love you, I love you". It is noted that Harrison J, in sentencing Mr Pender, did not consider these threats were serious and said that the conversation was "of so little weight as to be of no assistance to me in the exercise of my sentencing discretion": Pender at [25]. However, the task for the Court on the present application is different from that of a sentencing court and is additionally aided by the opinions of the independent experts. In the present case, the focus is on the assessment of risk posed by Mr Pender, to which his professed intention to commit terrorism-related violence upon release is relevant.
18. It follows that I do not consider that, as submitted by senior counsel for Mr Pender, his changed religious perspective to Judaism is a protective factor, even if Mr Pender presently disclaims radical Islamic views. Dr Dewson stated that "the stability of his [Jewish] current beliefs as a protective factor is questionable", having regard to the fact that "Mr Pender continues to present with a fixation on religion and he appears to swap religions almost instantaneously". Dr Eagle, while acknowledging that Mr Pender "may no longer hold extreme Islamic beliefs" opined that "he would appear to be highly susceptible to developing violent extremist beliefs again in future": [441.1.1.7]. That is because, as Mr Pender's history has shown, he "appears highly susceptible to religious doctrine including extreme religious beliefs due to a need for belonging, a search for meaning and a potential craving for excitement or adventure".
19. The concurrent evidence of the independent experts further supports a conclusion that Mr Pender's ongoing fixation as to religions contributes to a finding of "unacceptable risk" as follows: 1. Mr Pender's delusion involves antagonism to police and religious ideation. 2. Dr Dewson and Dr Eagle considered that Mr Pender was fixated or pre-occupied with religion. 3. Even though Mr Pender is not presently following Islamic extremist beliefs, there is a real risk this may change in the future including relapse into psychosis with delusional beliefs. The result would be a risk if Mr Pender reverts to his pathological preoccupation with religion, with extremist elements or violence alongside that (Dr Ellis). 4. Mr Pender's profile is highly unstable (Dr Eagle) and his account of his religious beliefs is unstable and changeable (Dr Ellis). 5. It is difficult to know when Mr Pender is being deceptive (Dr Eagle). 6. Mr Pender is susceptible to the influence of others and has poor insight into his susceptibility to influence from others (all experts). 7. Mr Pender is highly susceptible to developing violent extremist beliefs again in the future, in the right circumstances, namely, default on mental health treatment, substance use, and associating with those who would seek to influence him (all experts).
20. It may be the case, as found by Harrison J, that Mr Pender's violent religious pronouncements are the "function of a state of confused suggestibility" or the consequence of Mr Pender's mental illness rather than a devout adherence to misguided foundation but, as opined by Drs Eagle and Dewson, those conditions, in association with his religious beliefs from time to time, are very much factors contributing to the risk of Mr Pender engaging in the relevant offending. As mentioned earlier, the fact they may be the product, in whole or in part, of a disordered mind does not preclude, and, in fact, may exacerbate, the risk of committing a serious Pt 5.3 terrorist offence because the deterioration of Mr Pender's state is a product of delusions associated with violet religious extremism.
21. Finally, in this respect, I accept the submission of the plaintiff that Mr Pender's commitment to religious ideology in the manner I have described is capable of satisfying a relevant element of a terrorist act, namely, pursuant to s 100.1, an act done or threat made with the intent of advancing a political, religious, or ideological cause.
22. I turn then to the more broadly based opinions of risk by the Court appointed experts.
23. The opinions of the experts on the risk of Mr Pender committing a serious Pt 5.3 offence involved a discussion of both Mr Pender's present risk when in custody and the risks associated with him being released from custody under the seven measures (or a substantial number of them) in the community.
24. As the defendant correctly observed, the experts opined in their reports as to the level of risk posed by Mr Pender. Dr Eagle opined that the risk of "engaging in a serious Pt 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.
25. Senior counsel for Mr Pender submitted that each of the experts expressed caution about assessing the risk of future violence extremism or terrorism and that, when this uncertainty exists, the Court should prefer the "corroborated view" that the defendant is a low to moderate risk. On the other hand, senior counsel for the plaintiff submitted that Dr Eagle's opinion should be preferred because she provided a more detailed and reasoned approach in expressing her opinion responsive to the question raised with her.
26. However, I do not consider that issue of risk assessment requires a resolution in the manner proposed by senior counsel for the plaintiff when closer attention is paid to the opinions expressed in their respective reports and the commonality of their views given during concurrent evidence.
27. It was common ground that the conditions suffered by Mr Pender, visa via, mental illness or substance abuse, are currently under control or substantially under control while Mr Pender is 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.
28. It was quite clear from Dr Ellis's report that his risk assessment was predicated upon the stabilisation of Mr Pender's conditions whilst in custody as Dr Ellis referred to Mr Pender's state now and that he no longer had a fixation or pathological preoccupation with Islamic extremist beliefs which is associated with a deterioration in his function prior to incarceration, including homelessness, neglecting supervision and treatment and substance abuse.
29. Nonetheless, Dr Ellis opined that Mr Pender currently displayed an emergent and unsophisticated insight into his propensity for violence and understanding of the need for treatment and the management of same. Dr Ellis described his mental illness as "treatment resistant". He also indicated that Mr Pender's stress management techniques had not been able to be assessed and that "his past decompensation and prior impulsivity in stressful situations is the best marker that this area remains problematic". Further, Dr Ellis opined that Mr Pender would most likely be at risk of extremist violence if under stress and he had decompensated to a point where he suffered delusions or was using substances. The risk factors in this respect were mental illness, personality disorder, substance use, background disadvantage and the attendant chaotic lifestyle that had accompanied this profile.
30. Dr Eagle opined that Mr Pender had substantial deficits in his emotional regulation skills, judgment, interpersonal skills and overall level of function and during exacerbations of his mental illness and/or period of intoxication his capacity to interpret reality, his judgement, his problem solving skills and impulse control and emotional regulation skills would be further impaired. Under those circumstances he would be at a heightened risk of acting on any violent ideation justified by ideological beliefs.
31. Dr Eagle found that Mr Pender's risk of disengagement and non-compliance with mental health treatment and substance use in the community would appear to remain high, particularly in the absence of a comprehensive plan for reintegration, stable housing and assertive mental health treatment in the community.
32. Dr Eagle opined that Mr Pender would appear to be at most risk of carrying a knife with intention of causing physical harm to a police officer or a member of the public justified by extreme Islamic ideology.
33. Dr Dewson assessed Mr Pender's risk at the low to moderate range due to his current mental health stabilisation and the pro-social supports in place for him in the community. However, she emphasised that Mr Pender's risk profile is highly unstable and any return to violent extremism could occur rapidly and have serious consequences for Mr Pender and for the community. She further opined that there is a very real risk that Mr Pender could return to substance use upon release and/or become non-compliant with his psychotropic medication regime. This could see him deteriorate rapidly as evident by the increased presence of psychological symptoms (command hallucinations), impaired judgment whilst intoxicated, unchallenged thoughts related to violence and difficulties regulating his behaviour, which also illustrated the seriousness of the consequences if the risk eventuates. Those view of Drs Ellis, Eagle and Dewson summarised immediately above as to the nature and extent of the risk in the community and Mr Pender's prospects of regressing into extremist violence or a violent ideation justified by ideological or religious beliefs corresponded to a large degree with the evidence given by the experts in their concurrent expert evidence where there is essentially unanimity.
34. 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. 1. 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. 2. 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.
35. 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.
36. As mentioned, the concurrence of those views results, in my view, in the absence of a need to ultimately reconcile the position of the experts as to Mr Pender's current risk status whilst in custody because the focus of attention must be upon the predictive capacity of Mr Pender's current state in custody for his risk of committing a serious Pt 5.3 offence if he is released in the community. The experts share common concerns as to the nature and extent of the risks posed by Mr Pender's condition deteriorating in the community and of the prospects of that occurring. In the event, if I was required to express a preference as between the expert opinions of the Court appointed psychiatrists, Dr Ellis and Dr Eagle, I would agree with the plaintiff that overall Dr Eagle's report does appear to be a more comprehensive analysis of risk in the context of the particular questions posed. Dr Dewson's opinion as to the level of risk was occasioned by some significant qualification.
37. This is the context in which the suite of measures, the subject of much earlier analysis, must be assessed; that is, the capacity of the seven measures to manage a risk of the character I discussed at the outset of these considerations including the risks arising from a deterioration in Mr Pender's mental state or substance abuse in the community.
38. An appropriate starting point for this discussion is two aspects of the evidence of the independent experts.
39. Firstly, there is one aspect of Dr Eagle's report (at 448.5.4, earlier extracted in this judgment) with which Dr Ellis and Dr Dewson agreed. Dr Eagle opined that Mr Pender had never engaged in mental health treatment or follow up, based upon the information available, and he had led a chaotic unstable lifestyle throughout his life. She further stated that he failed to report symptoms of mental illness, displayed emotional instability and demonstrated problems in compliance in custody despite the controlled environment. As earlier mentioned, she then opined "Mr Pender's risk of disengagement and non-compliance with mental health treatment and substance use in the community would appear to remain high, particularly in the absence of a comprehensive release plan for reintegration, stable housing and assertive mental health treatment in the community".
40. Secondly, Dr Eagle opined that the degree of risk was a function of the existence of a release plan for reintegration, stable housing and assertive mental health treatment in the community such that the magnitude of the risk was a function of the extent of the absence of community support of that kind.
41. A central component of managing the risk in the community through the seven measures was the Control Order and CTO although all of the measures need to be assessed at the end of the day for their total effect.
42. There are three fundamental problems with the Control order and CTO reducing or mitigating the risks posed by Mr Pender in the community, as described above, to an acceptable level.
43. First, Mr Pender is highly susceptible to developing violent extremist beliefs in the future if he defaulted on mental health treatment. He is unstable and any deterioration would be rapid and without detailed planning. The experts agreed that mental health and compliance with his treatment regime was a significant factor in his risk of committing a serious Pt 5.3 offence. Dr Eagle and Dr Dewson agreed that Mr Pender has outstanding treatment needs and much will depend on his motivation to comply.
44. Mr Pender has been subject to CTOs in the community in the past, made in November 2014, reviewed in December 2014 and May 2015 and lasting up until at least November 2015. Yet in August and September 2015 he was admitted to hospital for mental health issues and also committed the October 2015 offences. He had also been required to take medication under bond or parole conditions in the past. As Dr Eagle noted "CTO's alone have not previously prevented Mr Pender from being non-compliant with treatment and arguably have not been able to be implemented": at [448.5.5(b)]. Dr Dewson stated it is "well established that his dysregulation has been associated with periods of medication non-compliance (or ineffective treatment)": at [86(II)].
45. As explained above, Mr Pender's behaviour has the potential to deteriorate rapidly, especially if he succumbs to substance use. Dr Eagle opined: "If Mr Pender resides in stable accommodation and has some level of engagement with mental health services, a CTO would assist in ensuring a return to hospital if he becomes non-compliant with treatment. A CTO would not reduce the risk of illicit substance use or prevent offending": at [448.5.5(b)].
46. As to the limitations of a CTO itself, as Dr Eagle has observed, a CTO does not necessarily ensure that Mr Pender will take his medications as scheduled. And it does not specifically address his substance use disorder. This means that even if Mr Pender is compliant with his treatment regime, his mental health could deteriorate if he relapsed to substance use with a likely increase in his risk of violence: Dr Eagle at [448.4.3(iv)(a)]. Thus, even if he was to continue his medical treatment, if he relapsed into alcohol and drug use his mental condition would be highly likely to decline.
47. Mr Pender is on various oral medications. While it is possible for community mental health services to supervise medication in the community, that is dependent on the participant being willing to attend at the allocated time and, given his history, Mr Pender would not be considered suitable for medication supervision: T46.2-18. While an NDIS worker could supervise oral medications, that is also voluntary: T46.10-14, 47.10 14.
48. Further, the mechanisms for enforcing compliance with a CTO are limited. While there is provision for the director of a mental health facility to inform Mr Pender of the need to comply with the order (see s 58(2)(b) of the Mental Health Act), non-compliance would not result in Mr Pender being brought to a mental health facility until a breach notice had been issued under s 58(3) and subsequently not complied with: see s 58(4). This does not adequately address the particular risk posed by Mr Pender, namely, the risk that, especially in the context of substance use, his behaviour will rapidly escalate into violence before his non-compliance, and its effects, are detected.
49. While it is Mr Pender's mental health team who are to manage his medications, the fact remains that repeated non-compliance with medication would constitute a risk-signalling behaviour that, even if identified by police, they would have no power to address under the Control order, visa via, a requirement. While it is possible that the police can work together with Mr Pender's mental health team, there are legal and practical barriers to the disclosure of information to police by those who administer CTO's.
50. While a control order can include a requirement that a person participate in specified counselling or education, a person is only required to participate if the person agrees, at the time of the counselling or education, to participate in the counselling or education: s104.5(6). As discussed earlier, this is a limitation in the effectiveness of the Control Order, particularly due to the absence of drug and alcohol counselling by Mr Pender and his substance abuse disorder. If Mr Pender does not agree to participate in those activities, a condition of this kind imposed upon him therefore cannot be enforced. Mr Pender's history suggests there is a substantial risk he will decline to do so: T43.39 T44.5.
51. Further, I note that an obstacle to monitoring Mr Pender's compliance with any control order is his lack of support from family and friends. This network cannot be used by police to gather information in relation to any risk-signalling behaviours displayed by Mr Pender.
52. Secondly, there is the issue of drug and alcohol use.
53. As earlier mentioned, Dr Ellis opined as to the real significance of a return to drug and alcohol use for the risks posed by Mr Pender.
54. As to the risks of substance use, the essential limitation of a control order is not that it cannot include measures restricting the use of drug and alcohol through the order.
55. I have earlier discussed the limitations in the control of drug and alcohol use.
56. While a control order can prohibit possessing drugs and alcohol for consumption, and possessing weapons such as a knife, those items are freely available in the community and the mere imposition of a control order cannot prevent Mr Pender obtaining them. Further, as earlier discussed, there is a limitation in the Control Order in relation to drugs and alcohol, due in large part to the lack of power under Div 104 to require Mr Pender to undertake drug or alcohol testing.
57. Mr Pender has been subject CTO's in the past, but it has not controlled his substance use: T42.23-25. Further, CTO's have not controlled his mental health well in the past. While on such an order, Mr Pender was readmitted to hospital twice, committing a stalk/intimidate offence against the son of his foster parents and posted a martyrdom video to Facebook threatening to kill Australian citizens.
58. While the CTO can assist in reducing risk when used in conjunction with clinical interventions such as counselling, group programs and substitute medications and are more rigorous than the present CTO, it was correctly submitted by the plaintiff that, although there is an increase in the stringency of the proposed CTO, it does not alter the difficulties associated with the CTO in managing the risk of Mr Pender. The principal risk factors in that respect were Mr Pender's risk of disengagement, non-compliance with mental health treatment and substance use in the community which remained high even with the CTO being more stringent.
59. Further, a community mental health team, which would be administering the order in the community, in practice do not have mechanisms to take steps if a person fails a urine test: T43.9-11. Failing a urine test in and of itself does not justify detaining a person in a mental health facility, unless they show signs of relapse, as stated by Dr Eagle.
60. Dr Eagle stated the only way of managing his substance use would be through another legal mandate, such as a control order: T43.15-19. However, Commander Booth explained the limitations of a control order in managing drug and alcohol use, namely, the difficulty in proving a breach and lack of enforcement as well as the difficulty in identifying whether a change in behaviour is due to consumption of alcohol or drugs or as a result of Mr Pender's mental health. Given Mr Pender's history of not complying with parole obligations, there is a substantial risk he would breach any control order prohibition regarding alcohol and drugs: T45.3-16, T51.15-34.
61. Thirdly, while electronic monitoring can be imposed, there is no power to impose scheduling as often occurs as conditions of Extended Supervision Orders under the CHRO Act or THRO Act. While electronic monitoring can be used in combination with scheduling to promote attendance at medical appointments and pro-social activities, that cannot be done under Control orders under the Criminal Code. Further, while electronic monitoring can be used to monitor compliance with other conditions of the control order, it obviously cannot indicate whether Mr Pender is consuming alcohol or drugs, procuring a weapon, approaching police officers or suffering from a rapid decline in his mental health. The evidence is that it can be used to detect movements into an exclusion zone (if the device enters or approaches a prohibited place or area).
62. Dr Ellis accepted that the inability to impose a "schedule" would somewhat reduce his confidence that Mr Pender could be managed in the community under a control order: T50.24 44.
63. The effectiveness of controls such as electronic monitoring, abstinence from drugs and alcohol and engagement in education and counselling are largely dependent upon the willingness of an offender to comply with them. In the past Mr Pender has had difficulty complying with conditions of parole and with following the rules of various rehabilitation programs, including because of his mental health and substance use issues. In Commander Booth's opinion this suggested a risk that Mr Pender may not comply with the controls under any order. For example, Commander Booth was not confident that he would comply with a control requiring him only to use an authorised device, or that he would necessarily charge and take that device with him, which would make it difficult to monitor his compliance with the controls and to maintain open lines of communication with him.
64. While there are NDIS supports in place, engagement with those is also voluntary, and again there is a substantial risk Mr Pender will not engage: T44.7-40.
65. I accept that the making of a Firearms order would overcome a limitation in the Control Order where there are no search powers. As opined by Dr Ellis, the imposition of a Weapons and Firearm prohibition order would "fill the gap" by adding such a power, but it is only one additional factor.
66. When regard is had to the fact that the Control orders and CTO together with the remainder of the seven measures are critical to the prevention of Mr Pender's mental health state deteriorating in the community or his substance abuse resuming, the deficiencies in the measures must be seen as substantial, particularly in the light they must grapple with a potential deterioration of Mr Pender's condition as earlier described occurring, rapidly declining with resultant serious consequences.
67. Further, there remains the issue raised by Dr Eagle as to the need for the sharing of information between police and medical authorities (as discussed above) and adequate collaboration between relevant authorities. The experts emphasised that Mr Pender would need to be subject to the suite of measures identified above, in such a way that the resources were to be "comprehensive and coordinated" given his previous difficulties with compliance (Dr Ellis, p 19). "Effective multiagency collaboration" was required (Dr Eagle [448.5.4]). While there are presently various supports on offer to Mr Pender, it is not yet clear that they will be coordinated in this way; Dr Eagle expressed doubts. Nor is there any present indication of how Mr Pender's substance use disorder would be managed in the community, given his outstanding treatment needs in that respect.
68. I acknowledge that the independent experts were asked by senior counsel for Mr Pender if Mr Pender could be managed in the community by the suite of measures in combination.
69. The defendant submitted that, as per their primary reports (and supplementary opinions in their concurrent evidence) the answer given by the experts was in the affirmative, although the experts expressly eschewed any opinion as to the acceptability of the risk as that was not a matter for psychiatric opinion.
70. For example, all the experts agreed that the risk posed by Mr Pender would be likely be reduced by the making of a control order, a CTO, engagement with community mental health treatment, stable accommodation and NDIS funding: Eagle Report [448.5.1]; Dewson Report [87]; Ellis Report pp19-21.
71. However, the experts were not as sanguine as to the management of risks associated with Mr Pender's return to the community under the suite of measures as was contended by Mr Pender. I have earlier referred to their discussion of the nature and extent of the risk, the high prospects for disengagement and non-compliance with mental health treatment and return to substance use and the likely rapid deterioration if there is disengagement and non-compliance. There are some further considerations in this respect.
72. Dr Eagle and Dr Dewson each produced supplementary reports on 6 October 2021 which took account of the further supports that would be available to Mr Pender were he to be released. (Dr Ellis did not prepare a supplementary report, and, may be taken to have considered this information did not affect his assessment of risk.) While Dr Dewson acknowledged these supports would likely have a positive impact, she concluded that "[t]here is no overall change to Mr Pender's risk score or profile": [14]. Dr Eagle reiterated her earlier opinion that the "stability of his mental illness will largely depend on his ability to remain abstinent from illicit substances and alcohol, and remain compliant with treatment", noting his "history of rapidly disengaging from mental health services in the context of illicit substance and alcohol use".
73. Further, in their concurrent evidence, the experts gave a guarded affirmative answer to this question in the light of their earlier evidence during the concurrent evidence as to the nature and extent of the risk in the event of mental deterioration or substance abuse and the prospects of that deteriorating materialising.
74. Dr Ellis said a CTO would not be enough but the suite of measures may be enough to "manage his risk" although Mr Pender had never managed to comply before and any intervention would need to be rapid. Dr Dewson was more optimistic in the light of the suite of measures but remained "somewhat sceptical". Dr Eagle thought Mr Pender could potentially be managed by the suite of measures if the respective "supports" were together but she retained concerns as to Mr Pender's ability to transition in the community without relapsing into substance use or disengaging from "mental health". She could not see any further steps which could be taken at this stage in custody and that Mr Pender could be "treated" to know whether the supports are enough.
75. Mr Pender's mental state was such that he has difficulty with emotional regulation and impulse control and instability together with his outstanding need for treatment.
76. Whilst I have reached that conclusion I consider the suite of measures are capable of reducing the risks associated with releasing Mr Pender into the community. I do not consider (after approaching the question of an unacceptable risk to the requisite standard of probability in s 105A.7(1)(b)) that those measures render the requisite risk to an acceptable level.
77. 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).
78. In all the circumstances, and having regard to the matters in accordance with s 105A.8 discussed above, I am satisfied to a high degree of the probability, on the basis of admissible evidence, that Mr Pender poses an unacceptable risk of committing a serious Pt 5.3 offence if Mr Pender is released into the community. I have undertaken that assessment on the basis that, upon Mr Pender's release into the community, he would have available to him and there would be active the suite of measures.
79. The corollary of that consideration in this case is that I am satisfied that, for the purposes of s 105.A.7(c), there is no less restrictive measure that could be effective in preventing the unacceptable risks.
80. There remains the question as to whether the Court might exercise a residual discretion to refuse to make a continuing detention order.
81. I do not consider that factors exist which warrant the exercise of such a discretion in this case.
82. The Court has determined there exists an unacceptable risk for the purposes of s 105A.7(1)(b). The objects of the Criminal Code in s 105A.1 require the Court to ensure the safety and protection of the community. I have found that the safety of the community is threatened by refusing to make a continuing detention order. The considerations under s 105A.8(1)(a) and the purpose of the Division (s 105A.1) have a real significance in this matter.
83. Mr Pender submitted that there is a risk that further detention could be counter-productive to his rehabilitation.
84. It may be accepted, as Dr Dewson stated, that a further period of detention will not cure Mr Pender's condition.
85. There is a possibility Mr Pender may suffer fatigue and affect his attitude to various medication compliance or therapy or ESP. Pro-social engagements may be less likely in custody.
86. However, Dr Spencer deposed that, in February this year, Mr Pender began engaging with the PRISM, a rehabilitative program administered by Countering Violent Extremism Programs in Corrective Services NSW: Spencer Affidavit, [19]. If a continuing detention order were made, it is anticipated that Mr Pender would be accommodated in the Hamden Mental Health Step-Down Unit, where he can continue to access intensive treatment for his mental health needs as well as continue his involvement with PRISM, should he so choose: Spencer Affidavit, [7.2.3], [11], [18], [21].
87. While the services in the Hamden Mental Health Step-Down Unit are not ordinarily available on a long-term basis, Mr Pender has been accommodated there exceptionally, having regard to his complex mental health needs: Spencer Affidavit, [13]. It is my expectation that such a program will continue.
88. Further, the programs and treatment presently available to Mr Pender have been successful in bringing his mental health condition substantially under control.
89. Overall, I do not consider that the Court may properly conclude that the effects of a CDO would be so deleterious to Mr Pender over that time to warrant his release from custody at this time.
90. To the contrary, the programs and treatment presently available to Mr Pender have been successful in bringing his mental health condition substantially under control in custody. There is every reason to think that they will continue to be successful in that regard if Mr Pender continues to be detained.
91. In any event, the focus of the Division is not on the rehabilitation but the safety of the community.
92. As to duration, the plaintiff sought a CDO for 3 years although accepted that the Court may in its discretion determine a shorter period.
93. The experts do not opine upon an appropriate duration for a CDO if one were to be made. There was no other evidence directly on that question. The Control order will operate upon the cessation of the CDO.
94. The plaintiff properly accepted that it was not possible to speculate on the level of risk Mr Pender will pose "after 1, 2, or 3 years in custody" and that "his circumstances may change over time".
95. Mr Pender has made substantial progress in custody. That stabilisation process is ongoing. It may be hoped his mental state continues to improve as does the remission of his substance abuse disorder. In my view, given that progress, and the potential for further treatment in the short term, the duration for the order should be for a shorter duration to provide the first available opportunity to Mr Pender to demonstrate his overall conditions (and associated risk) have continued to improve to a point warranting a release under a Control Order which may or may not have control orders which match those presently operating under interim orders. Further, by then a hearing as to the Control order will have taken place, perhaps under a new Commonwealth legislative regime.

Amendments 06 April 2022 - Minor typo amended at [448] 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: 08 April 2022