FEDERAL COURT OF AUSTRALIA
Gale v Homewood (No 2) [2024] FCA 1165
File number: NSD 264 of 2024 Judgment of: KENNETT J Date of judgment: 20 September 2024 Date of publication of reasons for judgment: 4 October 2024 Catchwords: CRIMINAL LAW – application to confirm interim control order under s 104.14 of the Criminal Code (Cth) (being Sch 1 to the Criminal Code Act 1995 (Cth) – where respondent consents to orders – whether conditions reasonably appropriate and adapted for the purposes in s 104.4(1)(d)(iii)-(iv) of the Criminal Code (Cth) Legislation: Criminal Code Act 1995 (Cth) Sch (ss 80.2C, 100.1, 104.1, 104.4, 104.5, 104.12, 104.12A, 104.14, 104.15, 104.16)
Firearms Act 1996 (NSW)
Cases cited: Booth v Khazaal(No 2) [2020] FCA 1528
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 22 Date of hearing: 20 September 2024 Counsel for the applicant: T Glover with M Pruscino Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: The respondent did not appear Solicitor for the respondent: RJ O’Halloran ORDERS
NSD 264 of 2024 BETWEEN: MATTHEW JOHN GALE
Applicant
AND: WADE JOHN HOMEWOOD
Respondent
ORDER MADE BY:
KENNETT J
DATE OF ORDER:
20 SEPTEMBER 2024
BY CONSENT, THE COURT ORDERS THAT:
Endorsement pursuant to Rule 41.06
PENAL NOTICE – Rule 41.06 of the Federal Court Rules 2011 (Cth)
TO: WADE JOHN HOMEWOOD
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THIS ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
1.Pursuant to s 104.14(7)(c) of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code), the interim control order made in relation to the Respondent on 20 March 2024, and varied on 11 April 2024, be confirmed without variation in the terms of the confirmed control order set out in the Annexure to this order.
2.This confirmed control order be in force until and including 19 March 2025.
3.The Respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9.00 am to 4.00 pm, Monday to Friday in order to obtain a copy of this order.
THE COURT NOTES THAT:
4.This confirmed control order relates to the Respondent, Wade John Homewood.
5.It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code).
6.It is satisfied on the balance of probabilities that each of the conditions to be imposed (and the combined effect of all the conditions) on the Respondent by…
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- AGLC
- Gale v Homewood (No 2) [2024] FCA 1165
- Case
- [2024] FCA 1165
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether the provisions of Section 104.14(7)(c) of the Criminal Code were satisfied, specifically whether Homewood had been convicted of an offence relating to terrorism and whether the conditions of the ICO were reasonably necessary and appropriate. The Court also had to consider the evidence presented, including Homewood's prior convictions and conduct, possession of ammunition and other materials, and his reluctance to engage with services designed to assist radicalised offenders.
The Court concluded that Homewood's prior conviction for advocating a terrorist act, his possession of ammunition and extremist literature, along with his continued expression of nationalist and racist sentiments, justified the continuation of the control order. The persistence and virulence of his online activity, combined with the significant level of concern expressed by the Director-General of Security regarding nationalist and racist violent extremism, indicated that Homewood still posed a risk to the community. The Court was satisfied that the conditions of the ICO were reasonably necessary and appropriate for protecting the public from terrorist acts and preventing the provision of support for such acts.
In conclusion, the Court confirmed the interim control order without variation, noting that it was satisfied on the balance of probabilities that Homewood had been convicted of a terrorism-related offence and that the conditions of the control order were reasonably necessary and appropriate for the specified purposes. The confirmed control order was set to remain in effect until 19 March 2025.
Orders
Orders of the court
Endorsement pursuant to Rule 41.06
PENAL NOTICE – Rule 41.06 of the Federal Court Rules 2011 (Cth)
TO: WADE JOHN HOMEWOOD
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THIS ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
1. Pursuant to s 104.14(7)(c) of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code), the interim control order made in relation to the Respondent on 20 March 2024, and varied on 11 April 2024, be confirmed without variation in the terms of the confirmed control order set out in the Annexure to this order.
2. This confirmed control order be in force until and including 19 March 2025.
3. The Respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9.00 am to 4.00 pm, Monday to Friday in order to obtain a copy of this order.
THE COURT NOTES THAT:
4. This confirmed control order relates to the Respondent, Wade John Homewood.
5. It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code).
6. It is satisfied on the balance of probabilities that each of the conditions to be imposed (and the combined effect of all the conditions) on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:
(a) protecting the public from a terrorist act (s 104.4(1)(d)(iii) of the Criminal Code); or
(b) preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(iv) of the Criminal Code).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Counsel for Commander Gale filed written submissions and made oral submissions.Consideration Section 104.14(7)(c) requires consideration of the matters referred to in s 104.4(1)(c) and (d). These are:(c) the court is satisfied on the balance of probabilities:(i) that making the order would substantially assist in preventing a terrorist act; or(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or(iii) that the person has engaged in a hostile activity in a foreign country; or(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and(d) the court is satisfied on the balance of probabilities that:(i) each of the conditions; and(ii) the combined effect of all of the conditions; to be imposed on the person by the order in accordance with section 104.5A is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:(iii) protecting the public from a terrorist act; or(iv) preventing the provision of support for or the facilitation of a terrorist act; or(v) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.Note: The issuing court may, in accordance with section 104.5B, specify conditions from which exemptions may be granted. Commander Gale relied on paragraphs (c)(iv) and (d)(iii) and (iv); that is, he contended that:(a)Mr Homewood has been convicted of an offence relating to “terrorism, a terrorist organisation … or a terrorist act”; and(b)the conditions of the ICO are “reasonably necessary, and reasonably appropriate and adapted”, for the purpose of “protecting the public from a terrorist act” or “preventing the provision of support for or the facilitation of a terrorist act”. As to the first of these matters, on 8 July 2022 Mr Homewood pleaded guilty to charges of advocating a terrorist act or commission of a terrorism offence (s 80.2C(1) of the Code). There is no doubt that this was an offence relating to terrorism. The conduct constituting this offence occurred between March 2019 and November 2021. As to the second matter, the following factors led me to conclude that the conditions of the ICO remained reasonably necessary and reasonably appropriate and adapted for the purposes referred to above.(a)In addition to the conduct in respect of which he was convicted, the AFP identified Mr Homewood as having engaged in conduct between March 2015 and November 2021 that advocated terrorism, called for the stockpiling of ammunition and preparation for conflict and expressed nationalist or racist sentiments. Examples of this conduct appeared in Commander Gale’s March affidavit. In the ICO decision Perram J aptly described examples of Mr Homewood’s online posts as alarming.(b)At the time of his arrest Mr Homewood was also in possession of a large amount of ammunition. At the same time he pleaded guilty to an offence under s 80.2C(1) of the Criminal Code, he also pleaded guilty to an offence related to the improper storage of this material contrary to the Firearms Act 1996 (NSW). He also possessed a copy of Mein Kampf and a printout of a United States Army handbook on “Improvised Munitions”.(c)Mr Homewood was sentenced by the New South Wales Supreme Court to a sentence of imprisonment, from which he was released on 22 March 2024. That sentence indicates that his offending was far from trivial. (d)It is difficult to discern from Mr Homewood’s online activity whether he was simply a “keyboard warrior” (at [6] of the ICO decision), who obtained gratification from expressing offensive notions in a relatively anonymous way, or a serious advocate and potential perpetrator of violence. In one sense, whether or not the perpetrator is serious or not does not matter when it comes to the expression online of views or asserted facts that “support” or “facilitate” terrorist acts. However, the items found in Mr Homewood’s possession, together with the persistence and virulence of his online activity, indicate the existence of at least some risk that he could commit a terrorist attack or support or facilitate the commission of such an act by others.(e)Commander Gale’s March affidavit included extracts from threat assessments issued by the Director-General of Security. This material indicated a significant level of concern as to the threat posed by nationalist and racist violent extremism, including so-called “lone actors”, and a recent “uptick” in the number of “nationalist and racist violent extremists advocating sabotage”. This indicates that there is no shortage of malign influences ready to reinforce any extremist views that Mr Homewood still holds.(f)Since his release from prison, Mr Homewood has been “case managed” by Community Corrections (which is an element of Corrective Services New South Wales). He has had weekly case management meetings with Community Corrections staff. They report that he has been compliant in attending these meetings but reluctant to engage beyond a minimum level. He has declined to engage with services that exist to assist radicalised offenders to move away from extremism. He also appears to be reluctant to engage in activities outside his home (other than going to the gym) and to lack motivation to obtain a degree in construction management even though he has completed all of the required study. At least in part, this resistance is attributed to entrenched attitudes and resentment towards the Government and services associated with it.(g)This recent material is relevant in two ways.(i)If Mr Homewood’s online posts prior to his arrest had been made only for his own gratification, it would be natural to expect him to seek to demonstrate that he has left behind that phase of his life in order to free himself from the burdensome restrictions of the ICO. This has not occurred. His recent behaviour provides a further indication that he was serious in the views and aspirations that he expressed prior to his arrest.(ii)Mr Homewood appears to have engaged only minimally with services that would assist him to break away from extremist ideologies and from his previously expressed support for terrorist activity and continues to be antipathetic and resentful towards government. This suggests that his opinions have not shifted. It indicates that the level of risk that he poses to the safety of the community has not diminished.