Supreme Court New South Wales Medium Neutral Citation: R v Pender [2019] NSWSC 1814 Hearing dates: 28 November 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Before: Harrison J Decision: (1) For the offence of threatening a judicial officer contrary to s 326(1)(b) of the Crimes Act 1900, sentenced to a fixed term of imprisonment of 6 months commencing on 14 June 2017 and expiring on 13 December 2017. (2) For the offence of possessing a knife connected with a terrorist act contrary to s 101.4(1) of the Criminal Code, sentenced to a non-parole period of imprisonment of three years commencing on 14 September 2017 and expiring on 13 September 2020 with a balance of term of 1 year expiring on 13 September 2021. (3) The first day upon which Mr Pender will become eligible for release on parole is 14 September 2020. (4) Warn Mr Pender that an application may be made for an order requiring him to be detained in prison after the end of his sentence. Catchwords: CRIMINAL LAW – sentence – where offender pleaded guilty to possessing a thing connected with a terrorist act – where offender also pleaded guilty to threatening a judicial officer – where mental illness contributed to offending – where offences lie at the lower end of the scale of objective seriousness – where offender now adheres to Judaism – whether offender poses risk of reoffending Legislation Cited: Crimes Act 1900 (NSW), s 326(1)(b) Crimes Act 1914 (Cth), ss 16A, 16A(2)(m) Criminal Code 1995 (Cth), ss 101.4(1), 105A.23 Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth), s 105A.23 Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: DPP v Fattal [2013] VSCA 276 Hammond v R [2008] NSWCCA 138 Lodhi v R (2007) 179 A Crim R Porter v R [2008] NSWCCA 145 R v Benbrika (2009) 222 FLR 433 R v Sharrouf [2009] NSWSC 1002 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Sentence Parties: Regina (Crown) Blake Nicholas Pender (Offender) Representation: Counsel: P McDonald SC with M Glover (Crown) J Gallagher (Offender) Solicitors: Director of Public Prosecutions (Crown) Hope Criminal Lawyers (Offender) File Number(s): 2017/264616 and 2017/00177121 Publication restriction: Nil remarks on sentence 1. HIS HONOUR: Blake Nicholas Pender has pleaded guilty to two charges on a single indictment dated 19 November 2019. The Crown alleges that on or about 14 June 2017, Mr Pender did intentionally possess a knife in connection with the preparation for a terrorist act, knowing of the said connection, contrary to s 101.4(1) of the Criminal Code (Cth). That is an offence carrying a maximum penalty of 15 years imprisonment. The Crown further alleges that later on the same day Mr Pender threatened to cause injury to a judicial officer in the Local Court on account of a decision delivered by the magistrate refusing Mr Pender's application for bail, contrary to s 326(1)(b) of the Crimes Act 1900. That is an offence carrying a maximum penalty of 10 years imprisonment. 2. Mr Pender has been in custody since the date of his arrest on 14 June 2017. These charges were listed for trial to commence before me and a jury on 4 November 2019 with an estimate of five weeks. In the events that occurred, the trial did not commence on that day and Mr Pender ultimately entered pleas of guilty to these charges on 20 November 2019. Mr Pender is now to be sentenced for these matters. 3. Although I have not been provided with a set of agreed facts, I take the position to be that the following matters are uncontroversial. 4. At 1.26 am on 14 June 2017, Mr Pender left the Integrate Internet Café at 600 George Street, Sydney with a Samsung mobile phone that he had obtained some minutes earlier from Ji Hwan Kim, another customer of the café. At about 1.41 am, Mr Kim's phone was used to download a picture of the shahada flag. 5. At about 1.50 am that same day, Police Constables Lund, Formosa, Vlaar and Curtin were on duty near the corner of Elizabeth and Devonshire Streets, Surry Hills outside the "Rosso Espresso" café. Constables Formosa, Vlaar and Curtin were all standing to the right of Constable Lund. The officers were on the eastern side of Elizabeth Street facing east. Constables Lund and Formosa were speaking with Troy Faulkner who they had stopped on suspicion that he had committed an offence. 6. Constables Lund and Curtin observed Mr Pender walking southbound on the eastern kerb of Elizabeth Street. When Constable Curtin observed him, Mr Pender was about 5 metres from Constable Lund. Mr Pender appeared to be drug affected or intoxicated in that he was sweating and muttering to himself. 7. Constable Lund continued speaking with Mr Faulkner but as she was doing so she heard a male's voice behind her. She could not make out what was being said as it was in a different language. Constable Lund turned to see Mr Pender standing about half a metre behind her with his hands positioned in a monkey grip in front of him. Constable Lund was startled to see Mr Pender so close. Fearing that Mr Pender was about to harm Constables Lund or Formosa, Constable Curtin moved directly between Mr Pender and Constable Lund and introduced himself to Mr Pender. 8. Mr Pender responded to Constable Curtin saying "Fuck off cunt, I've got nothing on me". Amidst exchanges that continued in this vein, Mr Pender took a step towards Constable Curtin in an aggressive manner with his hands still in a monkey grip. Constable Curtin directed Mr Pender to a spot just off the footpath on Devonshire Street. 9. Constable Curtin asked Mr Pender if he could separate his hands. Mr Pender did so but placed them by his side with his palms facing away from Constable Curtin. Mr Pender continued to glare at Constable Curtin and mumble incoherently. Mr Pender then quickly placed his hands behind his back and began moving them frantically. He appeared to be attempting to obtain an item from his right jumper sleeve. 10. Constable Curtin asked Mr Pender what he was grabbing. Mr Pender replied by saying "fuck off". Constable Curtin stepped to Mr Pender's right and saw what he thought was a knife protruding from Mr Pender's right jumper sleeve. Constable Curtin grabbed Mr Pender's right wrist. During a struggle, Constable Curtin wrested the knife from Mr Pender's hand and threw it behind him. The knife was about 22.5cm in length. After doing so, Constable Curtin told Mr Pender to "get the fuck on the ground" to which Mr Pender replied, "I am ready to go back to Goulburn Supermax". 11. As police attempted to handcuff him and called on him to stop resisting, Mr Pender laughed and said "fuck off; if I still had the knife I'd fucking kill you all". In response to a further request to stop resisting from Constable Formosa, Mr Pender said, "fucking stab every one of you dogs in the throat". Eventually Mr Pender was handcuffed and sat upright. Constable Curtin said, "What the fuck mate." Mr Pender responded saying, "The proudest thing a man can do is behead a cop". Constable Lund retrieved the mobile phone from the ground nearby. 12. While later being held in custody at Surry Hills Police Centre, Mr Pender made many similar comments and threatened officers that he would rape their wives and decapitate them before saying "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 further "when I get out I am go (sic) into the city and make myself a martyr and kill as many people as I can". Mr Pender further made a hand gesture of stabbing Constable Curtin and then made the tawhid sign by raising his left index finger skywards. The tawhid salute has become synonymous with the so-called Islamic State. 13. Mr Pender remained in custody at Surry Hills Police Station. He was read his rights but continually threatened officers in the manner set out above. 14. On the afternoon of 14 June 2017, Mr Pender was brought before Magistrate Keogh at Central Local Court. Police had applied to the court for Mr Pender's detention whilst Mr Pender applied for bail. Mr Pender appeared by audio visual link. 15. During the course of the proceedings, Mr Pender audibly made such comments as "Allahu Akbar" and "Long live Abu Bakar Al Baghdadi". Mr Pender also gestured, pointing out people and making a slitting motion across his throat and pretending to load a gun and fire at the court. He also made the tawhid numerous times. 16. Following submissions, her Honour asked Mr Pender if he had anything to say regarding his bail. Mr Pender indicated that he needed to be released from custody so that he could pick up his child from Canberra Hospital. The Magistrate then asked if Mr Pender had anything else to say at which point, he replied: "Long live Abu Bakar Al Baghdadi, Islamic State, Allahu Akbar". 17. As the Magistrate gave reasons for refusing bail and referred to Mr Pender's criminal history and his "unusual" conduct in court, Mr Pender made a noise with his throat and imitated the sound of an automatic firearm before going on forcefully to say: "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." 1. He later continued as follows: "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…" 1. In addition to these events, the Crown sought to rely upon three further pieces of evidence. The first is the transcript of a recorded telephone conversation between Mr Pender and Megan Webb on 27 June 2017. Mr Pender was in custody at the time and his conversation with Ms Webb can be heard to be preceded by the standard-form Corrective Services message advising that the conversation may be recorded. Mr Pender objects to the use of this material, which was tendered subject to that objection. 2. The portions of the telephone conversation upon which the Crown wishes principally to rely are as follows: "Pender: Hey babe, guess what I'm going to do when I get out? Guess what I'm going to do when I get out? Webb: What? Pender: Blow up a train. Webb: Oh yeah. Pender: Yeah I'm gearing myself up for martyrdom. Webb: You're an idiot aren't you? Pender: I'm gearing, gearing myself up for martyrdom. I'm going to become a martyr when I get out. Webb: Stop!! Just stop! Pender: I'm joking, I'm joking, I'm joking (laughing). Webb: Yeah but anyway, yeah so. Pender: I'm gearing, gearing myself up for martyrdom. I'm going to become a martyr when I get out. Webb: Babe. … Pender: Babe. Webb: What? Pender: I gotta die for the cause when I get out alright. Webb: No you don't just shut up and listen to what I have to say. Pender: No I'm going to die … Webb: Shut up and listen … Pender: …to the cause … Pender: Cops are going to die people are going to die and its going Webb: STOP!!! … Pender: I'm gearing up for martyrdom. Webb: Shut up and stop!! Pender: See if you mother fuckers can stop me. Allahu Akbar. Fuck you all. You're all dead. Webb: Stop!! (laughing) Pender: Inshallah you all die. Inshallah. Webb: STOP!! Pender: Consider me the first drop of blood in the river that will follow nah nah nah. Done. I'm done. I'm done… … Pender: I'm dying for the cause when I get out. I love you, I love you, I love you." 1. The Crown wishes to rely upon this material in order to establish that when he made these statements Mr Pender had, or professed to have, a genuine and enduring commitment to some form of fundamental Islamic terrorist ideology, and that his conversation with Ms Webb 2 years and 6 months ago remains relevant for sentencing purposes. In my opinion, that submission is without any force at all and should be rejected. That is for the following reasons. 2. First, Mr Pender was only the day before the phone call examined as a psychiatric patient at the MRRC by Dr Wade, a psychiatric practitioner. The Progress/Clinical Notes for that day, which are quite lengthy, include the following entries: "Imprn [sic, impression] Schizophrenia/? Schizoaffective disorder Elevated mood, disinhibited and impulsive behaviour, psychomotor agitation Context of substance use disorders (primarily amphetamine) & medication non-adherence? 2/52 Recent reported command AHs & delusions or alleged aggression [approximately] 2/52 ago – now no prominent delusions or hallucinations, but remains at risk of unpredictable behaviour and disinhibition with current suicidal ideation…" 1. It would not in my view be a forensic leap of any particular magnitude to form the view that Mr Pender's curious outbursts when speaking to Ms Webb somewhat hauntingly reflect the very impressions that Dr Wade had formed when examining him the previous day. Seen in that context, I find the Crown's submission that Mr Pender's words should in effect be taken as a studied and sensible expression of intent by an untroubled mind incapable of acceptance. 2. Secondly, the conversation taken as a whole is internally inconsistent. Mr Pender can be heard at one time to be making violent threats, immediately followed by the suggestion that he is joking. It is not without significance in my opinion that Ms Webb's contemporaneous responses themselves indicate that she did not appear to take seriously what Mr Pender was saying. 3. In my view, the things said by Mr Pender during the course of this telephone conversation are in the circumstances in which they were said of so little weight as to be of no assistance to me in the exercise of my sentencing discretion. In my view they do not assist with the proposition that Mr Pender relevantly adhered to a violent Islamic extremist ideology or that he remains at risk of committing dangerous acts if released into the community for that reason. The separate and quite different question of whether Mr Pender's politically unadorned mental illness leaves him vulnerable to the commission of dangerous acts is a separate question that is referred to later in these reasons. 4. The second piece of evidence is the transcript of a recorded interview given to the police by Mr Pender on 8 August 2017. Mr Pender objects to the use of this material upon the basis that he was not physically legally represented at the interview but had been given legal advice by telephone from the Aboriginal Legal Service that he should not participate. Mr Pender also submitted that he had been intoxicated as the result of the self-administration of methylamphetamine two days before and that his conduct and responses during the interview were potentially unreliable and accordingly unfair to him. 5. With respect to the admissibility of the ERISP, I have been provided with a statement made by Detective Constable Mikala Wrigley dated 31 October 2019. Part of her statement is as follows: "3. On the 4th July 2017 about 9.30am I spoke with Harry MAARRAOUI on the phone and told him I had a section 25 booked for the 8th August 2017 at the Metropolitan reception and remand centre (MRRC) at Silverwater, to charge the accused for threatening Magistrate KEOGH and interview him if he was willing to participate. I offered Mr MAARRAOUI the opportunity to accompany us to which he said no and told me he would advise his client not to participate in the interview but will get back to me once he had the opportunity to conference his client. 4. On the 12th July 2017 at 9.54am I received the following email from Mr MAARRAOUI: 'Dear Mikala, I act for Blake Pender. Further to our discussion and a request for you to interview Mr Pender. Mr Pender has instructed that he does not wish to be interviewed in respect to any matters. Please do not even put him in a room to do such. These are FIRM instructions. If you wish to discuss this matter please do not hesitate to contact me. Regards HARRY MAARRAOUI' 5. On the morning of the 8th August Detective HARRIS organised through justice health a support person to attend the MRRC for the arrest and charge process of the accused. He was provided with a number of names including Sime NYANYIWA. He recorded these details in his day book. 6. On the 8th August 2017 I went to the MRRC with Detective HARRIS to charge the accused with Threaten/injure person for being judicial officer, that being the threats he made to Magistrate KEOGH during his bail application on 14 June 2017. As mentioned in my previous statement I introduced myself, placed him under arrest, cautioned him, I then offered him the opportunity to participate in an electronically recorded interview which he happily and freely agreed to. Further to my statement dated 11th August 2019, I produce 1 page of notes I made in detective HARRIS' day book after the interview dated 8th August 2017. 7. In my experience as a police officer I have had accused people seek legal advice whether it be through a private firm, Legal Aid or Aboriginal Legal Services (ALS) who advise them not to participate in an electronically recorded interview. In fact I have not had one time where an accused has called legal representation who have advised them to participate in the interview. Despite this advice, not to answer the interview questions, I have had many accused who agree to participate so they can hear first hand the allegations or evidence we as Police have against them. 8. In respect to the accused, I spoke with him about the advice not to participate in an interview he had had with Mr MAARRAOUI as well as the advice he had received that day from ALS at no stage did he ever say he did not want to participate in the interview in fact it was quite the opposite he was willing and appeared to have a genuine interest in hearing what we had to say. If he had firmly said he did not wish to participate and refused I would not have even attempted to take him in to the interview room and Detective HARRIS and I would have proceeded to charge process with the offence of Threaten Judicial Officer, however because of the nature of the admissions that came out as a result of the interview Detective HARRIS and I, in consultation with our Commander Mr BARWICK, decided to delay charging him with threatening Magistrate Keogh until further advice was sought." 1. It is unnecessary for me to explore the significance of this statement in detail. It is sufficient for present purposes to observe that upon the basis of the firm indication from Mr Pender's barrister that he did not wish to participate in an interview, clearly communicated to the police beforehand, and then promptly ignored by them, I would have rejected the tender of the ERISP at the trial. Consistently with that view, I am not now prepared to admit it as evidence for the purposes of Mr Pender's sentencing. I do not consider that it is appropriate for the police to have disregarded the email from Mr Pender's barrister when his mental health was, or should have been, well known to, and appreciated by, the police concerned. The very fact that the interviewing officers make reference to how Mr Pender appeared to be coping during questioning bears witness to his obvious vulnerability. Detective Constable Wrigley's suggestion that Mr Pender appeared to have a genuine interest in what the police had to say is quite frankly risible. 2. It becomes strictly unnecessary in these circumstances to examine the psychiatric records to determine whether Mr Pender might also have been mentally unwell at the time that he was interviewed. However, I should observe that the Crown specifically submitted that when an overall view of all of the relevant Justice Health material is taken, the evidence does not support a conclusion that Mr Pender was psychotic at the time of the interview, or that his mental illness was such that he was being actively affected by it in giving answers during the interview. 3. I accept that Mr Pender was probably not psychotic when interviewed. The Crown's submission, however, proceeds upon the assumption that Mr Pender's entrenched difficulties with psychiatric problems only achieve significance when he is in a florid psychotic state. I am not prepared to accept that somewhat harsh, not to say unnuanced, analysis of Mr Pender's problems. Upon my review of the medical material, and my reading of the ERISP transcript, it is entirely apparent that Mr Pender was incapable by reason of his mental illness of consistently making decisions or giving answers that were in his best interests. 4. Thirdly, on 10 October 2015, Mr Pender had posted a video on Facebook with the caption "Allahu Akbar". The video runs for 55 seconds and depicts Mr Pender wearing a black face-covering speaking directly to the camera. The video commenced with Mr Pender giving a greeting in Arabic before he says this: "I am Abu Abdullah Al Australi. I am a budding Mujhadeen. 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 that will be 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 a river that will follow. The war with Muslims has just begun. Allah [sic] Akbar." 1. Also, in October 2015, Mr Pender made a post to his Facebook page stating: "Fuck the Australian government fuck the Australian people fuck the Anzac's [sic] may Allah give then eternal torment insh Allah death to the police death to the army death to all who oppose Islam and Rasoolu Allah salallahu aleyhi wasallam." 1. In about May of 2016, Mr Pender befriended Cameron Birchall. Mr Pender initially introduced himself to Mr Birchall as "Abdul" although he later told Mr Birchall his real name and said that he had converted to Islam while in gaol. Mr Pender ultimately took Mr Birchall to Harris Park Mosque where Mr Birchall later stayed intermittently with him and participated in prayer and service. 2. In about May 2016, Mr Pender spoke to Mr Birchall about making videos of himself decapitating "someone in Australia with the ISIS flag behind him". Mr Pender wanted to send the video to ISIS. Mr Pender told Mr Birchall that if he helped him and recorded him decapitating someone, Mr Birchall would go to paradise if they got killed themselves. He also said that if he could not get to Syria, he would blow himself up at Parramatta police station. Mr Pender regularly spoke in this way to Mr Birchall. Mr Birchall somewhat unsurprisingly ignored these comments. 3. Mr Pender also told Mr Birchall that he was interested in purchasing a Blackberry phone so that he could communicate on a "private" network with people in Syria about getting funds to travel there and fight with ISIS. Mr Pender borrowed money from Mr Birchall to buy the phone. Police happened to stop Mr Pender and Mr Birchall when they were on their way to do so. 4. These matters can be dealt with together. In my opinion, particularly having regard to the evidence concerning Mr Pender's long history of mental illness, this material can be disregarded for sentencing purposes as of no more than historical interest. In expressing that view, however, I mean to indicate that it tells me nothing of relevance about Mr Pender beyond confirming the presence of his condition. It is not a comment that should be taken to suggest that the literal expression or repetition of the things said by Mr Pender is anything other than wholly unacceptable. Subjective circumstances 1. It is uncontroversially recognised on both sides of the record that Mr Pender has for long suffered from serious and enduring mental health problems of one form or another. A detailed assessment and understanding of Mr Pender's mental illnesses is fundamental to the present sentencing exercise. Mr Pender has been examined by mental health professionals over many years before the present offending as well as since then for the specific purpose of determining the state of his mental health as a matter for my assistance in the exercise of my sentencing discretion. It is perhaps a small but not insignificant fact that Mr Pender was actually examined and assessed, on the very day of his arrest, by Mr Glenn Chapman, a Clinical Nurse Consultant, Mental Health attached to the Statewide Community & Court Liaison Service at the Central Local Court where Mr Pender was first brought before Magistrate Keogh. Nurse Chapman's report includes the following: "Mr Pender consented to a mental health assessment by this service on 14th June 2017 for the purpose of this court report. Mr Pender was assessed in the audio visual suite of Surry Hills Police Centre Correctional Cells via audio visual link. Summary of Assessment Findings: Mr Pender is a 26 year old male who stated he was born in Chechnya. He said he had immigrated to Australia when he was aged six. He felt he had achieved normal developmental milestones. He recalled an uneventful childhood and specifically denied history of abuse or neglect. He denied any learning difficulties but described early behavioural issues. He said he had been expelled from 2 separate schools while in year 10. He reported this had occurred due to 'fighting' and 'sex with girls'. He stated after school he had undertaken employment for about a year as a painter and decorator but had not worked since as he was receiving a disability support pension for 'schizophrenia'. He reported he was 'married under sharia law' in Australia and had 2 children from this relationship. He stated he was currently staying in Sydney as he was attending parole. Collateral history reports that Mr Pender was the victim of a serious sexual assault as a child. Mr Pender reported that he first had contact with community mental health services at the age of 15 years. He said that it was around this time that he first begun to 'hear voices'. He described these experiences as command in nature which had historically instructed him to kill other people. He denied ever acting upon this and felt easily able to resist it. He said he had undergone more than 30 admissions to various mental health facilities in the Sydney metropolitan area. He stated that his last admission had been to Concord Hospital and he had gone there seeking help as he was 'suicidal'. He recalled that he was currently the subject of a community treatment order which was administered by Merrylands Community mental health service. He said he regularly attends there and is prescribed the long acting anti-psychotic injection Abilify. He said he has attempted suicide on multiple occasions including: hanging attempts, cutting his wrists and overdosing on medications. He further reported at least one previous head injury with loss of consciousness. Obtained Concord hospital discharge summary document that Mr Pender had attended hospital under his own volition seeking help for suicidal thoughts related to his drug use. He had been admitted overnight and discharged the next day. Discussion with Merrylands community mental health service revealed that Mr Pender is not currently a client of their service and not know to be on a community treatment order. Mr Pender disclosed a significant history of illicit drug use and alcohol. He stated he had begun inhaling butane gas and smoking cannabis at the age of 12 years and by 13 years of age had begun injecting amphetamines. He said he had started to inject crystal methamphetamine at 16 years. He said he had last used about a gram of this substance prior to his arrest. He stated he typically currently injects this daily. He stated that he had not slept since his use. He further disclosed ongoing use of intravenous heroin. He said he last used this about 1 week ago. He reported that he receives heroin substitute methadone from United Gardens. He described previous heavy alcohol use with related withdrawal seizures, early morning drinking and blackouts. Discussion with United Gardens drug and alcohol clinic today confirmed that he is currently receiving 140mg of methadone. His reported attendance there is sporadic. Mr Pender presented as a short slim male of stated age. He was dressed in clean greens with notable tattoo of a cross on his right cheek and 'mullet' haircut. He was counterfactual, agitated and animated in behaviour, although cooperative and eager to participate in the interview it was clear that he had certain goals he wished to achieve. He was not distracted and did not respond to any internal stimulus. He displayed dyskinetic movements indicative of recent psycho stimulant use. There was marked psycho motor agitation. He displayed intense eye contact. He was loudly spoken and his speech was rapid, although he was easily interruptible. He self-reported his mood as 'shit all the time', which he directly related to being on parole. He however denied depressive symptoms or episodes of feeling elated and or energized when not using stimulants. His affect (interpretation of his emotional response) was noted to be elevated. His thought processes were mostly logical although circumstantial which required him to be frequently redirected back onto topic. There was no disturbance of flow of thought. He denied current thoughts of harm to himself but expressed a desire to kill police officers and military. He said that 'I want to blow myself up and kill the police, it is my life's ambition'. He expressed persecutory ideation related to police, community corrections and mental health services which was not delusional in nature or intensity. Upon direct questioning he denied a range of psychotic symptoms, perceptual disturbances or other abnormal experiences. His concentration and attention were poor. He was orientated. His insight into the detrimental effects of illicit substance upon his already compromised mental health was very poor and judgment chronically impaired. Clinical Impression He likely has a history of an aversive and disturbed early developmental experience and now has marked and enduring maladaptive personality traits of a borderline and antisocial nature. This includes his marked affective volatility and aggression, and also his episodic suicidality, all of which is exacerbated by substance use and becomes ever more apparent when he is intoxicated. His references however to experiencing psychotic symptoms were not convincing, he was not thought disordered, and displayed none of the deficit symptoms of a chronic psychotic illness such as schizophrenia, but rather was easily angered and emotionally volatile, as well as being goal directed and quick to perceive an opportunity for assistance. Conclusions & Recommendations: Mr Pender does not currently present with symptoms of a 'mental illness' as defined in the Mental Health Act 2007. He is unlikely to be admitted to a mental health facility. Adhering with prescribed medication and abstaining from illicit substances and alcohol may assist him being maintained in the community." 1. Nurse Chapman indicated that his service was unable to recommend a s 32 treatment plan for Mr Pender as there was no viable plan to manage his turbulent behaviour in the community and a s 32 treatment plan would not address his substance use. 2. On 4 April 2019, Dr Sarah-Jane Spencer, a psychiatrist, wrote to the Governor at the Goulburn High Risk Management Correctional Centre at which Mr Pender was then housed, in the following terms: "Dear Governor, I, being the treating psychiatrist for the above named patient, hereby notify you that I have concluded that the isolation or segregation of the patient at the High Risk Management Correction Centre is adversely affecting the mental illness of the patient." 1. Dr Chew prepared a psychiatric report with respect to Mr Pender dated 7 November 2019. Part of what he said is as follows: "Mental State Examination 21. Mr Pender was dressed casually and had reasonable grooming. He had a prominent tattoo of a cross under his left eye. He engaged freely and easily and was very polite and cooperative. He displayed no abnormal psychomotor activity. His speech was of normal rate, rhythm, volume and prosody. There was no evidence of formal thought disorder. There were no delusions today. There were no hallucinations. He said that his mood was 'ok'. His affect was mildly blunted. He was oriented to time, place and person and his cognition was grossly intact. There were no thoughts of harm to self or others. He had good insight today into his issues today and was motivated to engage in treatment. Review of Justice Health medical records provided 22. He was seen by consultant forensic psychiatrist Dr Gordon Elliott on 3/6/19 for a report for SORC. He opines that he suffers from a chronic psychotic illness and suggests that risks relate to impulsiveness, substance use and psychosis rather than planned or premeditated behaviour. 23. He was seen by Dr Wade, forensic psychiatrist on multiple occasions in Darcy 26/6/17. Reported auditory hallucinations at time of arrest including to commands to kill. Impression was schizophrenia/schizoaffective disorder. She saw him again 37/17, 10/7/17 and spoke about demonic prophecy and auditory hallucinations in relation to mental state at time of offences. He was admitted to Hamden Mental Health POD on 20/7/19. 24. On 7/8/17 he was seen by Dr McPhail, psychiatrist and AoD doctor who noted ongoing hallucinations. 25. I note that he was seen by forensic psychiatrist Dr Spencer on multiple occasions including 9/8/17. She opined 'Mr Pender is a 26 year old man with an established diagnosis of schizophrenia who is facing charges relating to incidents that occurred when he was psychotic'. Opinion 26. Mr Pender has a primary diagnosis of schizophrenia which is a chronic mental illness. He additionally has a significant substance use disorder which exacerbates and perpetuates psychosis. 27. He is currently being managed by mental health services delivered by Justice Health and Forensic Mental Health Network. I understand that he is currently treated under a forensic Community Treatment Order which directs his compliance with medication and attendance at psychiatric review primarily. I understand that a fCTO was applied for and granted while he was managed in the Hamden Mental Health POD in August 2017. The Hamden Mental Health POD is a section of MRRC where people with chronic and enduring mental health issues, predominantly schizophrenia, are housed. The psychiatric morbidity there is similar to that in long stay psychiatric rehabilitation units." 1. 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. 2. 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. Remorse and guilty pleas 1. Mr Pender tendered a letter in his handwriting in the following terms: "Dear Magistrate Keogh, I sincerely apologise for the way that I verbally abused you on the 14th of June 2017. I deeply regret the way that I treated you Ms Keogh if you could find it in your heart to forgive me that would be amazing the Blake then and the Blake now are two different people I won't keep you I just ask that you would consider forgiving me. Thank you for your time Yours sincerely Blake Pender" 1. Mr Pender was not cross-examined about this letter. However, it was not tendered until after he had given evidence and been cross-examined by the Crown, who did not require him to be recalled for that purpose. No adverse inference should be taken to arise from that approach. 2. Mr Pender did not appear to be the most articulate witness to give evidence before me in similar circumstances. However, he was prepared to enter the witness box and give evidence. I am satisfied that Mr Pender is genuinely sorry for his verbal assault upon Magistrate Keogh. Mr Pender did not independently express remorse or regret for the matters giving rise to the other charge. 3. Mr Pender also pleaded guilty. These pleas were offered at what must be considered to be the very last opportunity. Mr Pender was considered to be fit to stand trial and his ability to comprehend the concept of a plea of guilty must by analogy be taken to be something that he also possessed. Mr Pender had a late change of legal representation but there is no suggestion that this had any significant effect on the timing of his pleas. Mr Pender is entitled to a discount of 8 percent in the circumstances for the utilitarian value of his pleas. General and specific deterrence 1. It is uncontroversial that general deterrence is of limited significance in the case of offenders who are suffering from a mental illness. Although Professor Greenberg has expressed the opinion that Mr Pender did not technically have a defence of mental illness available to him, in the sense that he did not understand the nature and quality of his acts or that they were wrong, 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. The significance of general deterrence necessarily recedes. 2. Specific deterrence is more troublesome. I do not understand the medical experts to contend that Mr Pender has no understanding or appreciation of the significance of things he has done. Indeed, Mr Pender's written apology to Magistrate Keogh says as much. By the same token, Mr Pender has a substantial criminal history commencing in 2006 when he was 15 years old. He has been sentenced to terms of imprisonment. It seems apparent that Mr Pender has not been effectively discouraged from reoffending by his previous sentences. That may well be, and would appear to me to be, at least partly related to his long-standing mental health issues. Punishment and rehabilitation 1. In sentencing an offender for what might be described as a terrorist offence, the primary considerations are the protection of the community, the punishment of the offender, denunciation of the offence and deterrence: DPP v Fattal [2013] VSCA 276 at [173]. The religious or ideological motivation of an offender will also be relevant to the issue of community protection and the objective seriousness of the offending. In the present case it is clear that Mr Pender has expressed statements that are on their face consistent with him having at that time some interest in an ideology consistent with committing acts of violence in the name of Islam. 2. Mr Pender bears the onus on the balance of probabilities of establishing that he has resiled from or discarded radical views. The Crown submitted that having regard to the importance of this factor in the sentencing process, and in accordance with authority, I should not find that Mr Pender has renounced his support for the so-called Islamic State, or his expressed ideology, in the absence of reliable evidence. 3. The Crown also submitted in some detail that where an offender has not established that he or she has resiled from such views, courts have repeatedly recognised that community protection will be of enhanced importance: Lodhi v R (2007) 179 A Crim R at [82]-[83], [88]. For example, in R v Benbrika (2009) 222 FLR 433 at [148]-[151], Bongiorno J declined to give any weight to letters written by the offender while in prison as evidence of renunciation of his commitment to violent jihad "in the absence of sworn evidence from the prisoner which could have been cross-examined". The Crown submitted that a similar approach should be taken in this case. 4. In the events that occurred, Mr Pender gave sworn evidence before me in the sentencing proceedings. Some of that was as follows: "Q. In relation to your current religious beliefs can you tell his Honour as to whether or not you adhere to Islam? A. I do not. Q. What is the situation now with your religious beliefs, do you have any? A. Yes, I do. Q. What is the situation? A. I adhere to Judaism. Q. You are currently at Goulburn SuperMax, is that so? A. No, I'm at Silverwater. Q. Silverwater, but you have been at Goulburn SuperMax? A. Yeah, I have, I have. Q. Did you ask for assistance in relation to the study of Judaism? A. Yes, I did. Q. What did you do? A. I asked for a Torah, a Sefer Torah, and the Hebrew alphabet with vowel points. Q. When did you ask for that? A. Approximately five or six weeks ago. Q. That was when you were at Goulburn? A. Yeah. … HIS HONOUR Q. Mr Pender, you have below your right eye a tattoo of a cross. A. That's correct. Q. Is it the position that at one time you were interested in the Christian religion? A. That's correct, your Honour, yes. Q. Are you a person who over your relatively short life has had an interest in several different religions? A. That's correct, your Honour, yes." 1. Mr Pender was cross-examined on this topic: "Q. Mr Pender, when did you convert to Islam? A. First time when I was 17 - 16, sorry. Q. When was the second time you converted? A. Twenty four, 25, something like that. HIS HONOUR: …If you converted to it twice does that mean that after converting the first time you discarded that religion? A. Yeah, I renounced it. Q. You renounced it? A. Yeah. McDONALD: When did you renounce it? A. When I was 17, the first time. Q. So, you converted when you were 17 and then you renounced it when you were 17? A. No, sorry, sorry. Can you … I reverted when I was 16 and I renounced it when I was 17. Q. Then the second time, can you assist the Court, I think you referred to an age that you were, was that around 2015? A. That's correct, yes. Q. When you converted in 2015 you adopted an Islamic dress style? A. Yeah, I did, yes. Q. You attended the Parramatta mosque? A. Harris Park mosque. Q. I will come to the Harris Park mosque in a minute, but you also attended the Parramatta mosque, didn't you? A. That's not correct at all, no. Q. You attended the Harris Park mosque? A. That's correct, yes. Q. You lived at the Harris Park mosque for periods of time? A. Yeah, I did. Q. You also sought to convert Mr Birchall to the Islamic faith? A. I don't recall. Q. You took Mr Birchall to the Harris Park mosque, didn't you? A. No, didn't. Q. And you said to him words to the effect, Islam is a really good religion, you should convert. A. I don't recall. Q. When you were growing up you spent some time living with a foster family Tramas? A. Yeah, I did. Q. And the Tramas were Christians? A. That's correct, yeah. Q. After you converted to Islam you used to attend some of their religious ceremonies as Christians? A. Yeah, I wasn't as a Christian, but I used to go, just to support them or whatever. Q. You didn't support them. You used to be at the back of their place of worship performing your Islamic prayers, didn't you? A. No, not that I recall, no. Q. You don't recall that? A. No, I don't. … HIS HONOUR: Five or six weeks ago do you say that you became interested in converting to Judaism? A. Yes. Q. And that involves a course of study, does it not? A. Yes, it does, your Honour. Q. Have you embarked on that course of study? A. Yes, I have. Q. You have? A. Yes, I have. McDONALD: So what have you done? A. I have memorised the Hebrew alphabet, I have memorised the vowel points, and I have memorised a bit oh, not 'memorised', but I have been studying Orthodox Judaism, more specifically Hasidic Judaism. Q. In answer to a question from your counsel you referred to requesting a copy of the Torah and the Hebrew alphabet. I take it from that last answer you have been provided with those? A. No, I have been provided with the Hebrew alphabet, just not the Torah. Q. So, you have been provided with the Hebrew alphabet. Is that the extent of your study presently, that you have learnt the Hebrew alphabet? A. Yes, yes, that's correct, yes. Q. And that's it? A. That's correct. … Q. When was the first time that you told anybody that you had renounced Islam? A. I don't recall." 1. 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. 2. 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. Objective seriousness Possess a knife etc 1. Mr Pender has been charged with a serious offence. However, there is no suggestion that his confrontation with the police was planned or even anticipated by him. My best estimation on the available evidence is that Mr Pender came upon the group of police officers performing their duties in the early hours of the morning purely as a matter of chance. It does not seem to me that Mr Pender's downloading of a picture of the shahada flag shortly beforehand was connected with the events on the footpath other than coincidentally. Mr Pender's response to the police then became violent and aggressive. Mr Pender has a history of such conduct. It was unprovoked by any conduct on the part of the police officers. Indeed, the skill and expertise with which the officers handled the situation to bring it under control quickly and without further incident is to be commended. 2. But for the use of violent religious threats, and the anterior conduct with the mobile phone, Mr Pender would in all likelihood not have been charged with this offence. However, that is not a relevant consideration for present purposes. He has pleaded guilty to a breach of s 101.4(1) of the Criminal Code. Having regard to the wide scope of activity contemplated by this provision, I consider that Mr Pender's offence lies towards the lower end of the range of objective seriousness. The seriousness of the charge must not be mistaken for the seriousness of the breach. Threaten injury to judicial officer 1. Judicial discussions of this offence regularly make reference to it "striking at the heart of the administration of justice". That proposition is uncontroversial. Maintenance of the authority of the courts and the preservation of respect for judicial independence are considerations of paramount importance. Notwithstanding, each offence and each offender must be examined having regard to the particular circumstances of the case. In the present case, Mr Pender was before her Honour by way of audio visual link from a location remote from the room in which her Honour was presiding. Mr Pender's outbursts were clearly reactive and responsive to her Honour's perfectly reasonable and understandable decision to deny his application for bail. Although it does not and cannot detract from the immediate force of Mr Pender's violent threats, it is obvious that he was not in a position at that time to carry them out. There has been no repetition or report to me of any similar conduct since then. 2. As I have attempted to make clear, voicing violent threats towards a judicial officer in the course of court proceedings is a matter of some particular gravity. It does not require restatement from me for it to be well known and understood. However, in the more limited and presently relevant framework of assessing the objective seriousness of the particular offence committed by Mr Pender, I consider it to be at the lower end of the range. By way of further explanation, I consider this case objectively to be considerably different from cases in which the threats made or directed to a judicial officer are to be found in correspondence or email directed to the officer at his or her home or electronic address. Such situations are enhanced by planning and premeditation, as well as being more acutely directed towards the relevant judicial officer concerned. These elements are conspicuously absent from what I consider to be the ill-considered reactive protestations made by Mr Pender in this case. General 1. In short, Mr Pender has been charged with serious offences but in my opinion has not committed serious breaches. Section 166 matters 1. Mr Pender was charged with a series of back up and/or related charges specified pursuant to s 166 of the Criminal Procedure Act 1986 as follows: No Date of Offence Brief Details Act and Section COPS H/ Sequence number 1 14 6 17 Intimidate officer in the execution of duty (seq 001) s 60 of the Crimes Act 1900 (the Act) 65414241/001 2 14 6 17 Assault officer in the execution of duty s 58 of the Act 65414241/003 3 14 6 17 Resist officer in the execution of duty s 58 of the Act 65414241/004 4 14 6 17 Custody of a knife in a public place s 11C(1) of the Summary Offences Act 1988 (NSW) 65414241/005 5 14 6 17 Larceny s 117 of the Act 65414241/006 1. In accordance with s 166(1)(b)(ii) of that Act, these offences have been transferred to this Court and are dismissed. Sentence 1. I am conscious of the fact that any sentence imposed in respect of the s 101.4(1) offence must have regard to the object and purpose of terrorism legislation and the maximum penalties involved: see, for example, R v Touma [2008] NSWSC 1475 at [74]. One of the defining features of terrorism is that the object is to use serious violence in support of a political or ideological purpose as an instrument of intimidation or coercion of the community or governments. I am required in the circumstances of this offence to have regard to the matters set out in Part 1B of the Crimes Act 1914 and more specifically those set out in s 16A of that Act. The governing principle in s 16A(1) is the imposition of a sentence which is of a "severity appropriate in all of the circumstances of the offence". I have also to take into account in this case as an aggravating factor that Mr Pender committed this offence whilst on conditional liberty: Porter v R [2008] NSWCCA 145 at [86]-[87]. My task "is to take account of all of the relevant factors and to arrive at a single result that takes due account of them all": Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75]. 2. 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. 3. As I have already indicated, Mr Pender has a long and unfortunate criminal history of convictions for violence and assault, including assaulting police officers in the execution of their duty, stalking and intimidating, including intimidating police, robbery and destroying or damaging property. There are many other offences to which I have not referred. I reiterate that Mr Pender's prospects of reoffending, and hence his prospects of rehabilitation, are in my opinion more accurately and reliably to be assessed by reference to this history than the isolated events of 14 June 2017. 4. I make the following orders: 1. Blake Nicholas Pender, for the offence of threatening a judicial officer contrary to s 326(1)(b) of the Crimes Act 1900 you are convicted and sentenced to a fixed term of imprisonment of 6 months commencing on 14 June 2017 and expiring on 13 December 2017. 2. Blake Nicholas Pender, for the offence of possessing a knife connected with a terrorist act contrary to s 101.4(1) of the Criminal Code you are convicted and sentenced to a non-parole period of imprisonment of 3 years commencing on 14 September 2017 and expiring on 13 September 2020 with a balance of term of 1 year expiring on 13 September 2021. 3. The first day upon which you will become eligible for release on parole is 14 September 2020. Section 105A.23 Criminal Code 1. 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. ********** 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: 18 December 2019