Minister for Home Affairs v Pender [2021] NSWSC 1644

Minister for Home Affairs v Pender [2021] NSWSC 1644

Having regard to the statutory matters in s 105A.8 and the admissible evidence, the Court was satisfied to a high degree of probability that Mr Pender posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community. Although the proposed suite of measures would reduce risk, their...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Application for a Continuing Detention Order Under S 105 A.7(1) of the Criminal Code 1995 (cth) / Principal Judgment Giving Reasons for Orders Made on 9 November 2021
Outcome
Continuing detention order made for one year from 13 September 2021.
Legal Topics
['continuing Detention Order' 'unacceptable Risk of Committing a Serious Part 5.3 Offence' 'less Restrictive Measures' 'control Order' 'community Treatment Order' 'expert Psychiatric and Psychological Evidence' 'substance Use Disorder' 'schizophrenia' 'rehabilitation and Community Protection']
['criminal Law' 'terrorism' 'preventative Detention' 'mental Health Law' 'evidence and Procedure'] ['continuing Detention Order' 'unacceptable Risk of Committing a Serious Part 5.3 Offence' 'less Restrictive Measures' 'control Order' 'community Treatment Order' 'expert Psychiatric and Psychological Evidence' 'substance Use Disorder' 'schizophrenia' 'rehabilitation and Community Protection']

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Procedural Posture

Application for a Continuing Detention Order Under S 105 A.7(1) of the Criminal Code 1995 (cth) / Principal Judgment Giving Reasons for Orders Made on 9 November 2021

Legal Issues

  1. 1 ['Whether, after having regard to the matters in s 105A.8 of the Criminal Code 1995 (Cth), the Court was satisfied to a high degree of probability that Mr Pender posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community.' 'Whether there was any less restrictive measure, including the existing interim control order, community treatment order, supported accommodation, NDIS supports, PRISM and ESP supports, and a firearms prohibition order, that would be effective in preventing the unacceptable risk.' 'Whether the Court should exercise any residual discretion not to make a continuing detention order.' 'What period of continuing detention was reasonably necessary to prevent the unacceptable risk.']

Ratio Decidendi

Having regard to the statutory matters in s 105A.8 and the admissible evidence, the Court was satisfied to a high degree of probability that Mr Pender posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community. Although the proposed suite of measures would reduce risk, their limitations were substantial given Mr Pender's history of violence, terrorism-related threats, unstable religious fixation, severe mental illness, substance use disorder, history of non-compliance, risk of rapid deterioration, and the inability of the measures to reliably enforce medication compliance, abstinence from drugs and alcohol, counselling, scheduling and coordinated...

Court Disposition

Continuing detention order made for one year from 13 September 2021.

Orders

  • ['Pursuant to s 105A.7(1) of the Criminal Code the defendant be subject to a continuing detention order.' 'The continuing detention order be in force for a period of one year from 13 September 2021.']