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R v Pender [2019] NSWSC 1814

sentence — intentionally possess a knife in connection with the preparation for a terrorist act offence contrary to s 101.4(1) of Commonwealth Criminal Code — additional state offences — mental condition — s 16A(2)(m) — auditory hallucinations including commands to kill reported by offender at time of arrest and continues to be diagnosed with characteristics such as disinhibition and impulsivity — offender was not in a florid psychotic state, but mental illnesses lie on continuum of varying degrees of seriousness: it would be churlish in the circumstances of this case to conclude that offender’s criminal acts were committed by someone with unfettered powers of self-control, logic and rationality — sentencing judge rejected proposition that can only take mental illness into account when sentencing if suitably qualified medical specialist has said in terms that offending was caused by the mental illness, or that it was a contributing factor — abundant evidence from which sentencing judge considered it legitimate to infer offender’s mental illness contributed to offending conduct — guilty plea — s 16A(2)(g) — pleas offered at very last opportunity — entitled to 8% discount on sentence for the utilitarian value of pleas — general deterrence — s 16A(2)(ja) — significance of general deterrence necessarily recedes as although offender did not technically have defence of mental illness available to them, in the sense that they did not understand the nature and quality of their acts or that they were wrong, little doubt offender’s conduct associated with condition of schizophrenia or schizoaffective disorder and prone to disinhibited and impulsive behaviour and psychomotor agitation — rehabilitation — s 16A(2)(n) — offender has prominent facial tattoo apparently inspired by the Christian religion, converted to and renounced Islam twice and now wishes to embrace the Jewish religion — sentencing judge impression that offender’s adherence to Islam questionable in the past but non-existent at the present — offender’s plainly offensive and violent religious pronouncements are more a function of a state of confused suggestibility than of any genuine or devout adherence to misguided fundamentalism — also difficult to separate these things from the ever present spectre of offender’s mental illness — offender’s prospects of rehabilitation and the associated question of the likelihood of reoffending are more reliably informed by their mental health and criminal history than particular circumstances or details of conduct for which to be sentenced — offender’s history of violence and aggression is of long standing and conspicuously pre-dates by many years the emergence of any obvious or suggestion attraction to or adoption of hysterical extremes of radical Islam — offender’s so-called Islamic rhetoric was manifestation of propensity for violence rather than violence being expression of entrenched or enduring religious fanaticism —prospect of offender committing further similar offences quite limited, but less optimistic about general ability to overcome difficulties with impulsive and violent behaviour having regard to offender’s indifferent criminal history and mental health — nature and circumstances of the offence — s 16A(2)(a) — having regard to wide scope of activity contemplated by s 101.4(1), offending lies towards the lower end of the range of objective seriousness — seriousness of the charge must not be mistaken for the seriousness of the breach — critically important in sentencing, when 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 — sentence — imposed 3 years’ and 3 months imprisonment with a 3 year non-parole period with a balance of term of 1 year
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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