AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 18 December 2019

R v Pender

[2019] NSWSC 1814

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE WHERE OFFENDER NOW ADHERES TO JUDAISM

Citation: R v Pender [2019] NSWSC 1814
Court: Supreme Court of New South Wales
Date: 18 December 2019
Judge: Harrison J

Background

The offender pleaded guilty to two charges arising from events on 14 June 2017 in Sydney. The first charge was intentionally possessing a knife connected with the preparation of a terrorist act, knowing of that connection, contrary to s 101.4(1) of the Criminal Code 1995 (Cth). The second charge was threatening to cause injury to a Local Court magistrate following a bail refusal, contrary to s 326(1)(b) of the Crimes Act 1900 (NSW).

In the early hours of 14 June 2017, police officers on duty in Surry Hills intercepted the offender after observing concerning behaviour. A struggle followed in which officers discovered a knife approximately 22.5 cm in length concealed in his sleeve. After being restrained, and later while in custody at a police station, the offender made numerous violent threats directed at officers, invoking Islamic State ideology and referencing the 2014 Lindt Cafe siege gunman.

Later that afternoon, the offender appeared by audio-visual link before a magistrate at Central Local Court on a bail application. He made a series of violent threats and jihadist declarations during the hearing, and after the magistrate refused bail, he threatened her directly with decapitation. These events gave rise to the threatening a judicial officer charge. The offender had been in continuous custody since his arrest on 14 June 2017, and the matters had been listed for a five-week jury trial before Harrison J before the guilty pleas were entered on 20 November 2019.

  • What sentence was appropriate for each offence, having regard to their objective seriousness and all relevant factors under s 16A of the Crimes Act 1914 (Cth)?
  • To what extent did the offender's mental illness diminish his moral culpability and affect the weight given to general deterrence?
  • How should the court assess the offender's risk of reoffending, and how should his apparent conversion to Judaism (and departure from radical Islamist beliefs) affect that assessment?
  • Whether a statutory warning under s 105A.23 of the Criminal Code concerning post-sentence continuing detention orders was required.

Decision

Harrison J placed both offences at the lower end of the scale of objective seriousness. Although the conduct was alarming and the language used was extreme, the court found that the offender's mental illness was a substantial contributing factor to his behaviour on the day. The court drew a distinction between offenders who genuinely embrace violent extremist ideology and those whose words and actions are, to a significant extent, the product of a disordered mind.

The court accepted that the offender's mental illness reduced his moral culpability and diminished the weight to be given to general deterrence as a sentencing consideration. His guilty pleas were also taken into account as a mitigating factor, even though they were entered on the eve of trial.

On the question of future risk, Harrison J expressed caution about over-relying on the events of 14 June 2017 as a reliable guide. The court considered that the offender's long criminal history of violent offending, including assaults on police and intimidation, provided a more accurate basis for assessing reoffending risk than the isolated terrorist-connected conduct. The offender's stated conversion to Judaism and abandonment of radical Islamic views was noted, but the court treated his broader history as the primary indicator.

The court also noted that the offender's apparent conversion and the circumstances of the offences made a continuing detention order application at sentence expiry difficult to conceive of, but was required by s 105A.23 of the Criminal Code to formally warn the offender that such an application remained legally possible.

Orders Made

  • For threatening a judicial officer (s 326(1)(b), Crimes Act 1900): convicted and sentenced to a fixed term of 6 months imprisonment, commencing 14 June 2017 and expiring 13 December 2017.
  • For possessing a knife connected with a terrorist act (s 101.4(1), Criminal Code): convicted and sentenced to a non-parole period of 3 years commencing 14 September 2017 and expiring 13 September 2020, with a balance of term of 1 year expiring 13 September 2021.
  • First eligible date for release on parole: 14 September 2020.
  • Statutory warning given under s 105A.23 of the Criminal Code that a continuing detention order application could potentially be made at the conclusion of the custodial sentence.

Key Takeaways

  • Where an offender's mental illness substantially contributes to conduct involving extremist language and terrorism-connected offending, the Supreme Court will treat that illness as reducing moral culpability and as diminishing (though not eliminating) the weight accorded to general deterrence at sentencing.
  • A distinction exists between offenders who genuinely adhere to violent extremist ideology and those whose extremist conduct is largely attributable to mental disorder. The sentencing court here applied that distinction to place the offences toward the lower end of objective seriousness despite highly disturbing surrounding conduct.
  • Assessing reoffending risk requires looking beyond the immediate offences. Harrison J held that a long history of violent criminal conduct provided a more reliable indicator of future risk than the isolated, ideology-inflected events that gave rise to the charges.
  • Under s 105A.23 of the Criminal Code, sentencing courts are obliged to warn offenders convicted of terrorist offences that a continuing detention order may be sought at sentence expiry, even where the court considers such an application unlikely in the circumstances.
  • Guilty pleas entered shortly before trial retained mitigating value, though the timing of those pleas remained a relevant consideration in calibrating the discount applied.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 101.4(1), 105A.23
- Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth)
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(m)
- Crimes Act 1900 (NSW), s 326(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Lodhi v R (2007) 179 A Crim R
- R v Benbrika (2009) 222 FLR 433
- R v Sharrouf [2009] NSWSC 1002
- Hammond v R [2008] NSWCCA 138
- Porter v R [2008] NSWCCA 145
- DPP v Fattal [2013] VSCA 276