Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921

Supreme Court New South Wales

Medium Neutral Citation: Minister for Home Affairs v Pender (Preliminary) [2021] NSWSC 921 Hearing dates: 23 July 2021 Date of orders: 28 July 2021 Decision date: 28 July 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: See [81]. Catchwords: HIGH RISK OFFENDERS – Offenders – Convicted Commonwealth terrorist offender – Application for appointment of experts under the Criminal Code Act 1995 (Cth) Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code Act 1995 (Cth) Cases Cited: R v Pender [2019] NSWSC 1814 State of New South Wales v Osman [2020] NSWSC 1646 Category: Procedural rulings Parties: Minister for Home Affairs (Plaintiff) Blake Nicholas Pender (Defendant) Representation: Counsel: P Herzfeld SC with Z Heger (Plaintiff) M Johnston SC with G Lewer and D Bhutani (Defendant)

Solicitors: Australian Government Solicitor (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/192377 Publication restriction: None

Judgment 1. Pursuant to s 105A.7(1) of the Criminal Code Act 1995 (Cth) ("Criminal Code"), the plaintiff, the Minister for Home Affairs, seeks that the defendant, Blake Nicholas Pender, be subject to a continuing detention order ("CDO") for a period of 3 years. 2. The defendant is currently in custody serving a sentence in respect of two offences being: 1. An offence contrary to s 101.4(1) of the Criminal Code of knowingly possessing a thing (a knife) connected with terrorism; and 2. An offence contrary to s 326(1)(b) of the Crimes Act 1900 (NSW), being threatening a judicial officer. 1. The defendant is due to be released on 13 September 2021. 2. This is the judgment in respect of the plaintiff's claim for interim relief following the preliminary hearing. Although part of the relief claimed in the summons includes an order that the defendant be subject to an interim detention order ("IDO") the plaintiff does not at this stage seek such an order. That is because the defendant remains in custody and the plaintiff is hopeful that the claim for final relief, being the claim for a CDO for a period of 3 years, will be determined prior to his release from custody. 3. The only orders sought at this time are thus: 1. Orders for the appointment of medical experts to assess the defendant and provide reports to the Court pursuant to s 105A.6(3) of the Criminal Code; and 2. Protective orders in respect of certain documents, being orders 7 to 13 in the summons. 1. At the preliminary hearing, Perry Herzfeld SC appeared with Zelie Heger for the plaintiff. Matthew Johnston SC appeared with Georgia Lewer and Dev Bhutani for the defendant. The parties relied on a joint Court Book and provided written and oral submissions. 2. Having regard to the limited nature of the orders sought at this stage, the issues for determination are similarly limited. Further, although I must form an independent satisfaction, the defendant did not generally oppose the orders sought.